Filed 4/19/23 P. v. Kitzman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

KYE WEST KITZMAN,

Defendant and Appellant.

 H048726

 (Santa Clara County

 Super. Ct. No. F1766966)

I. INTRODUCTION

Defendant Kye West Kitzman was convicted by jury of spousal rape (former 

Pen. Code, § 262, subd. (a)(1))1 of S. Doe; two counts of oral copulation with a child 

aged 10 or younger (§ 288.7, subd. (b)) and two counts of aggravated sexual assault of a 

child under the age of 14 by rape (§§ 269, subd. (a)(1), 261, subd. (a)(2)) regarding 

daughter K. Doe; and simple assault (§ 240) of D. Doe, defendant’s daughter from a prior 

relationship. The jury also found true the allegation that defendant was guilty of two or 

more sex offenses against more than one victim (§ 667.61, subds. (b) & (e)). The trial 

court sentenced defendant to an aggregate term of 60 years to life. Defendant was 

granted 1,093 actual days credit plus 164 days of conduct credit and ordered to pay 

various amounts, including a criminal justice administration fee of $129.75.

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

On appeal, defendant contends that: (1) the trial court erred by admitting evidence 

of uncharged sex offenses committed against an ex-wife; (2) the court erred by excluding 

a photograph that showed his daughter and topless wife; (3) the court erred in admitting 

child sexual abuse accommodation syndrome (CSAAS) evidence; (4) the prosecutor 

committed misconduct and the court erred by allowing the prosecutor to recite in crossexamination the facts underlying defendant’s out-of-state conviction for sexual assault; 

(5) cumulative error requires reversal; (6) he is entitled to additional presentence custody 

credit; and (7) any unpaid balance regarding the criminal justice administration fee must 

be vacated. The Attorney General concedes the last issue.

For reasons that we will explain, we will (1) modify the judgment by awarding 

1,097 actual days credit and 164 days of conduct credit, for a total of 1,261 days of 

presentence custody credits; and (2) order the portion of the criminal justice 

administration fee that remained unpaid as of July 1, 2021 be vacated (see Gov. Code, 

§ 6111, subd. (a)). We will affirm the judgment as modified.

II. BACKGROUND

A. Pretrial Motions

The charges against defendant arose out of the abuse of his wife S., their daughter 

K., and his daughter D. from a previous relationship. Prior to trial, the parties filed 

several motions in limine.

Relevant to this appeal, the prosecutor filed a motion in limine to admit evidence 

under Evidence Code section 1108 of defendant’s prior sexual assaults of three women: 

(1) a woman repeatedly raped between approximately 1992 to 1995, (2) an ex-wife, A., 

who was sexually assaulted, including raped, repeatedly from 1995 until 1998, and (3) a 

1998 Wisconsin conviction for third degree sexual assault for raping another woman. 

The prosecutor filed a separate motion in limine to admit certified records of defendant’s 

1998 Wisconsin conviction, as the victim was apparently unwilling to testify at trial. 

Defendant filed a motion in limine to exclude the evidence regarding the assaults of all 
3

three women under Evidence Code section 352. The trial court ruled that evidence of the 

sexual assaults of all three women was admissible, but it limited the scope or form of the 

evidence. Regarding the Wisconsin assault conviction, the court indicated that the 

abstract of judgment would be admitted but that the underlying facts would be excluded 

as inflammatory and prejudicial.

The prosecutor filed an additional motion in limine to exclude a mother-daughter 

photograph of S. and K., in which S. was topless, as unduly prejudicial. Defendant 

contended that the photograph was relevant to show (1) K.’s sexual knowledge may have 

come from S. and (2) S.’s bias against defendant based on her initial claim to police that 

defendant took the photograph whereas it appeared to be a “selfie” by S. The trial court 

ruled that the photograph would be excluded as “too distractive and time-consuming.”

Defendant filed a motion in limine seeking to exclude and/or limit CSAAS 

evidence. After hearing argument from the parties, the trial court ruled that CSAAS 

evidence would be admitted.

B. The Prosecution’s Case

1. Defendant’s Abuse of Wife S.

At the time of trial, S. was 38 years old. She met defendant in August 2000, when 

she was 18 years old. They were introduced by S.’s cousin one week after defendant’s 

release from prison. S. was aware that defendant had a 1998 conviction in Wisconsin for 

sexual assault2and that he was required to register with the police because of his 

conviction. Defendant and S. married in December 2000.

At some point, defendant began participating in jujitsu, a type of martial arts 

involving “fighting techniques.” Defendant was a little over six feet tall and about 

250 pounds. He was bigger than S. and very strong. S. had a background in martial arts 

and participated in martial arts training for a period of time.

2 A copy of the minutes from the Wisconsin criminal case reflecting defendant’s 

conviction was admitted into evidence.
4

S. testified that defendant was physically and sexually abusive throughout the 

marriage. Defendant had slapped her before they married, but he was very apologetic 

and told her that he would not do it again. Within a year, however, defendant began to 

get angry and violent with S.

The physical abuse included slapping or shoving. Defendant sometimes hit S. in 

the face, but he mostly hit her in areas where the red marks or bruises could be covered 

with clothing. Defendant would also “put [S.] to sleep” by wrapping his arm around her 

throat from behind which caused her to “be out in a matter of seconds.” S. was too 

scared to report or leave defendant because he had threatened to kill her.

Defendant often engaged in nonconsensual sex with S. S. had chronic pain issues 

in her stomach and pelvic area and at times told defendant she did not want to have sex, 

but defendant would still insist. He also forced her to have sex “in different ways,” 

including vaginal, anal, and oral sex, and he engaged in “rough sex,” such as choking and 

slapping, without her consent.

S. reported to the police that she told defendant “no” all the time regarding sex and 

that to the extent she complied with having sex, it was out of fear. At trial, however, S. 

testified that there was “consensual sex mixed in between” the incidents of 

nonconsensual sex. When asked at trial about this “type of a relationship” with 

consensual and nonconsensual sex, S. explained that defendant was “very sweet at times, 

so it was easier to hope things would get better.” He was also manipulative and provided 

financially for the family. S. further testified that she was too scared to leave him 

although she had considered it many times.

S. testified that the last incident of sexual abuse occurred in June 2017. Defendant 

had sex with her even though she had told him no. S. did not initially resist because she 

knew he would get more violent. During the incident, defendant choked her, at which 

point she “struggled” and tried to stop him.
5

Throughout their relationship, S. and defendant took “provocative pictures” of 

each other, including nude and explicit pictures. At trial, S. testified that she did not want 

to take “[a] lot” of the pictures but that defendant knew how to make it look like she did. 

The photos were stored on the family computer or on their cell phones. None of the 

pictures showed any abuse of S.

Defendant and S. also engaged in “sexting.” S. testified that “[a] lot of the time[]” 

it was against her will. She testified that she felt compelled to respond out of fear that 

defendant would get upset if she did not. S. later told the police that defendant sent her 

abusive text messages that included calling her “awful names.” S. told the police, 

however, that she did not have any of those messages saved on her phone.

During the marriage, defendant had sex with other women. S. testified that she 

did not like it, but she did not have a choice. She also testified that she was “almost 

relieved” when defendant had sex with other women because then she “wouldn’t have 

to be in pain.” The arrangement was that he slept with other women, but he came home 

to S.

Beginning in 2015, defendant was in a relationship and lived with S.’s friend, 

L.C., for approximately one and a half to two years. S. was upset and felt betrayed by 

both defendant and C. At the time, S. hoped defendant would come back, because she 

“didn’t want to have a failed marriage.” Defendant filed for divorce from S., but he did 

not follow through and ultimately moved back in with S. S. knew that defendant 

continued to see C., however. At trial, S. denied making up allegations against defendant 

because she felt anger or betrayal over his relationship with C.

Early in the marriage, defendant and S. had a daughter, K. Defendant would have 

S. roleplay during sex by pretending to be a little girl, including pretending to be K. S. 

went along with it because she believed defendant would become more violent if she did 

not comply. S. worried that the role-playing “could possibly cross over” into reality. She 

often asked defendant, but he denied that he would ever touch K.
6

In approximately July 2017, however, an incident occurred that caused S. to be 

suspicious. S. walked out of her bedroom and saw defendant “hovering over [K.]” S. 

testified that defendant was wearing shorts and K. was wearing a nightgown and lying 

on her back on the couch. S. “freaked out” and asked defendant “what the hell was going 

on.” Defendant moved back, sat in a chair, and told her that she “needed to shut up.” S. 

suspected that defendant had “touch[ed]” K. but was not sure.

S. and K. moved out of the residence in August 2017, and immediately moved in 

with F., to whom S. later became engaged. At trial, S. denied being in a relationship with 

F. before moving in with him. F.’s daughter, P., however, testified that her father and S. 

were “together” before S. and K. moved in with them.

S. filed for divorce from defendant in late August 2017, and sought a restraining 

order to prevent him from seeing her or K. S. and F. also had a child together in June 

2018. By the time of trial in 2020, S. and defendant were divorced.

S.’s friend lived at the same RV park as S. for about a year and a half. S. told her 

friend about defendant’s abuse. The friend testified that when S. disclosed the abuse, she 

sounded nervous and scared. S. cried when she showed the friend the photographs that 

were taken by defendant. S. also indicated that she was suspicious about defendant 

sexually abusing K. The friend encouraged S. to report everything and helped S. when 

she eventually moved out.

2. Defendant’s Abuse of His Younger Daughter K.

At the time of trial in February 2020, K. was 16 years old. Defendant, S., and 

their daughter K. lived in a two-bedroom trailer in an RV park throughout K.’s entire life. 

S. was a stay-at-home mother, while defendant’s job entailed servicing and changing 

large commercial vehicle tires. Defendant often left for work early in the morning before 

K. got up. Afterwards, he would go work out and train for jujitsu, and he sometimes did 

not get home until 10:00 or 11:00 p.m. after K. had gone to sleep.
7

For a period of time, K. took classes at defendant’s training facility. Defendant’s 

jujitsu friends were friendly and treated her like she was part of the training family. K. 

and her mother S. sometimes attended defendant’s jujitsu tournaments on the weekends.

K. testified that defendant “insist[ed]” that she do “extreme” workouts, including 

pushups, sit ups, squats, and jumping jacks “[t]o the point where [she] couldn’t stand.” 

K. complied because she was “scared” that defendant would “harm[]” her.

K. “felt like” she had to obey defendant. He either grounded her or spanked her 

buttocks with a belt when she disobeyed him. Defendant also told her when she was very 

young to never call the police.

When K. was about eight or nine years old, she saw defendant physically abuse 

her mother, S. Specifically, defendant slapped S. at least twice. This made K. more 

scared to disobey defendant.

K. testified that defendant began touching her inappropriately when she was seven 

or eight years old. He took off her shirt, touched her breasts, and used his hand to rub her 

vagina over her clothing.

When she was eight years old, defendant made her hold his penis, move her hand 

on it, and orally copulate him. The incident ended after defendant ejaculated in her 

mouth. K. did not tell her mother, S., about the incident because K. thought S. would be 

upset. When asked how many times defendant had her orally copulate him, K. testified, 

“Too many to count.” A couple of months after K. started orally copulating defendant, 

defendant also orally copulated K.

In 2015, when K. was about 11 years old, defendant began inserting his penis in 

her vagina. K. testified that the first time, they were lying down, his penis went in a 

“little bit,” and it was very painful. After being shown her preliminary hearing testimony 

at trial, K. acknowledged that she had previously testified that she and defendant were 

standing during the incident. She subsequently testified at trial that the pair were 

standing.
8

In another incident, defendant made her get undressed, he pulled down his pants to 

his ankles, and then he got on top of her while she was on the couch. He then moved his 

penis in and out of her vagina. K. felt she had to comply because she was the child, she 

was “supposed to do what [she was] told,” and she believed she would be grounded or 

spanked if she disobeyed. K. testified that the incident ended when her mother, S., who 

had been sleeping in the bedroom, started opening the bedroom door. K. testified that 

defendant “jumped off” of her, pulled on his pants, and sat in another seat. According to 

K., S. asked defendant what he was doing. K. also heard S. say to defendant in part, “If 

I ever catch you like that again.” K. did not disclose to her mother what had been 

happening because she “didn’t want [her mother] to worry.” K. likewise did not tell 

anyone else because she thought she would get in trouble and “be harmed.” When K. 

was initially interviewed by the police about this incident, she reported that defendant 

jumped off of her and that her mother “ended up knowing what happened and kicked him 

off the bed for the rest of the night.”

K. and S. moved out of the RV where they were living with defendant and moved 

into an RV at the same park with a man named F. in August 2017. Prior to that time, K. 

and S. had gone on walks around the RV park, and F. had joined them. F. had a daughter 

named P., who was a few months younger than K.

Prior to that time, K. was an only child who did not have to “fight” for her 

mother’s attention. They were best friends and had a “really special relationship.” K. 

testified that her mother “was a constant in [her] life.” Her mother was present every day 

for K. and had left her home alone “[o]nly a few times.” K. was her mother’s “sidekick.” 

K. testified that when her mother started developing a relationship with F. and his 

daughter P., S. focused a little less on K.

When K. was around 13 years old, she disclosed some of defendant’s abuse to P. 

and separately to another friend. At trial, K. testified that she told P. that defendant was 

doing something “harmful” to her, and she told her other friend that she was in a 
9

“difficult situation” with defendant. She testified that she did not tell P. or her other 

friend that the harmful or difficult issue involving defendant was sexual in nature.

However, P. testified that K. told her that defendant was doing sexual things to K. 

K. appeared sad and upset when making the disclosure. K.’s other friend testified that K. 

had stated that defendant “tried to put his private parts into her private parts” when she 

was younger. The friend stated that during the disclosure, K. appeared nervous and 

timid.

K. kept a journal while she was in middle school. In the journal, she described 

being bullied at school, that sometimes she did not know why she cried, that she was 

barely sleeping, and that she needed to talk to someone about the things she was going 

through because it “hurt[] [her] mentally.”

K. did not write about defendant’s abuse in the journal. She testified that if she 

wrote it down, she would be “reliving it too much.” K. also testified that defendant’s 

sexual abuse did not influence what she wrote in the journal, but that the abuse made it 

harder for her to talk to people.

The first entry in the journal was made on August 30, 2017, which was around the 

time that K. and her mother S. moved in with F. K. wrote that her mother was giving F.’s 

daughter, P., a lot of attention. K. felt jealous and was hurt. K. was also fighting with her 

mother.

Approximately three months after K. and S. moved out from living with 

defendant., and after K. observed a November 2017 school presentation called “Be Seen 

and Heard” about sexual abuse victims who are unable to speak up, K. disclosed 

defendant’s abuse. At trial she explained that the school presentation “impacted” her 

because the presenter “didn’t speak up for 11 years,” and K. “didn’t want to be silent for 

that long.” She further testified that the presentation gave her the courage to speak up. 

After the presentation, K. filled out a form indicating that she was the victim of abuse 

and turned it into a teacher. The police were called, and K. provided a statement to the 
10

police. A police detective, Sheena Woodland, subsequently conducted a lengthy 

interview of K. At trial, K. denied that she came forward about the abuse because she 

wanted to get attention, or because she wanted her mother to pay more attention to her 

than to P.

K.’s mother S. testified that when K. disclosed defendant’s sexual abuse to the 

police, S. also reported defendant’s abuse of S. S. explained that her daughter K. “was 

so strong” and finally told someone, so S. “felt [she] could do the same” even though she 

was still terrified of defendant. K. believed S. was a “pretty tough woman.”

3. Defendant’s Assault of His Older Daughter D.

D. was defendant’s daughter from a prior relationship. D. was raised by her 

mother in another state. D.’s minimal contact with defendant consisted of phone or video 

calls. D. was almost 25 years old at the time of trial in 2020. She had a 2016 

misdemeanor conviction for fraud.

D. testified that defendant visited her once when she was 10 years old. He took 

her for ice cream and then brought her to his motel room. Defendant showed her jujitsu 

or wrestling moves, “flipped [her] around,” and placed her in “headlocks and bodylocks.” He told her that “one day [she] would be doing this with other boys.”

In 2012 or 2013, when D. was 18 years old, she was having problems with her 

mother so she moved in with defendant, S., and K. in California. D. testified that while 

living with defendant, she was not allowed to go on dates and that defendant threatened 

the life of one of her dates who took her to a movie. D. testified that she was also not 

allowed to have friends or participate in extracurricular activities. She was “confined to 

the house” and got “beat with a belt” if she was caught talking to anyone who defendant 

did not approve of.

D. also testified that defendant made her and K. do “ridiculous” exercise routines, 

including jumping jacks, pushups, sit ups, and running in place for “hours at a time.” 
11

According to D., if defendant found out that they did not do the workouts, he would 

“beat” them with a belt.

In addition to having their bare “butts” “smack[ed]” “really badly” by defendant, 

D. testified that she was also “choked out on the kitchen floor for talking back.”

D. testified that defendant physically and mentally abused S., including throwing 

her to the ground and saying “horrific things” to her. In one incident, D. woke up in the 

middle of the night to “what sounded like choking and slapping.” She heard S. “trying to 

gasp for breath and whimpering.” D. testified that she heard defendant say to S. that “he 

didn’t care” and that “he was going to fuck her in the ass anyways.” D. heard S. crying. 

D. previously testified that S. was always covered in bruises.

D. testified that defendant had acted inappropriately with her. When she first saw 

him after landing at the airport, he “French kiss[ed]” her with his tongue in her mouth.

In another incident, D. slipped and fractured her wrist while she was at a 

community shower with S. and K. D. testified that defendant carried her naked through 

the trailer park and back to their residence. He told her that her breasts were really big 

and nice. S. took D. to the hospital. After they returned home, the entire family lay on 

the bed in the master bedroom where it was dark. S. was turned towards K., who was 

lying on her side and facing the wall, and the pair were sharing headphones while 

watching something on S.’s phone. D. testified that she was on her stomach with 

defendant sitting on her thighs after having offered her a back massage. D. was wearing 

only a T-shirt that went down to her thighs, and defendant was wearing only boxers. D. 

testified that defendant removed her shirt and rubbed her back and buttocks. D. testified 

that she then felt defendant’s penis “up against [her] vagina.” She tried to wriggle away. 

Defendant “kind of laughed it off” and continued rubbing her back when D. “felt it a 

second time.” She told him to stop at some point. D. testified that she got up, grabbed 

her shirt, went back to her bedroom, and cried herself to sleep. D. believed that if she 

reported the incident to the police, defendant “would beat [her] until [she] died.”
12

D. lived with defendant for about five or six weeks. The day before she left, she 

was at a street fair with S. and K. D. testified that S. had misplaced $20 and called 

defendant on speakerphone to ask if he had taken it. Defendant accused D. of stealing 

the money and told S. that he was on his way home to “beat [D.’s] ass.” After they all 

arrived home, defendant accused D. of being a thief, which she denied, and he beat her 

with a belt. D. testified that she fought back by grabbing the belt and trying to hit him 

with it, but he punched her in the face. D. testified that she was knocked to the ground 

and “out cold for a few seconds.”

D. went to the RV park’s main office and called the police because she was scared 

that things would escalate and defendant would eventually kill her. Her face was swollen 

and red. She told the police that she wanted to press charges but she also wanted to 

return to her home out of state. According to D., defendant was arrested, and both of 

them were taken to the police station. However, D. testified that the police told her that 

they had given defendant an “ultimatum to fly [her]” back home out of state and that he 

borrowed money to buy her a plane ticket. D. testified that defendant was let go, and 

early the next morning she took a flight out of state. She felt angry, disappointed, and 

violated.

S. testified that she saw defendant slap D. during the incident. S. did not 

remember whether he punched D. or whether D. was knocked out on the ground. When 

S. reported defendant’s abuse of her to the police years later, S. also told the police about 

this incident in which defendant hit D. D. never told S. that defendant had sexually 

assaulted D.

D. did not see defendant again until trial. D. initially testified that she learned 

about defendant’s criminal case from Sheena Woodland, an investigator from the district 

attorney’s office who had called her. D. later testified at trial that she had actually heard 

about law enforcement’s involvement with defendant from her biological mother and 
13

from S. At trial, D. stated that she was testifying to support S. and K., and because D. 

“need[ed] closure and . . . to be able to sleep better at night.”

4. CSAAS Expert Testimony

Dr. Blake Carmichael testified as an expert in clinical psychology. He explained 

that CSAAS addresses “myths and misconceptions” about children who have been 

sexually abused and that CSAAS helps people understand why children “do or don’t do 

certain things.” The five elements of CSAAS are secrecy; helplessness; entrapment 

and accommodation; delayed, unconvincing, or conflicted disclosure; and retraction. 

Dr. Carmichael explained the first four elements at trial. Dr. Carmichael testified that he 

did not know anything about the facts of the case, and he had no opinion about whether 

sexual abuse had occurred. He explained that CSAAS is not a diagnosis and cannot be 

used to determine whether someone has been sexually abused.

C. The Defense Case

1. Defendant’s Parents

After defendant and S. married, the pair lived in a trailer for about two years on 

defendant’s family’s farm. Defendant and S. had breakfast and dinner at his parent’s 

house. Defendant’s mother testified that defendant and S. had a good marriage, that S. 

was a physically strong woman who seemed to be able to speak her mind, and that she 

never appeared afraid of defendant. Defendant’s father likewise testified that defendant 

and S. appeared to get along well, S. did not appear afraid of defendant, and defendant 

never yelled at her in anger.

When defendant and S. visited the family farm on later occasions, their marriage 

still seemed loving and good. Daughter K. also did not have any bruises and did not 

seem scared of defendant.

Defendant’s mother testified that she never saw any bruises or injuries on S. 

Defendant’s father testified that he saw a bruise “just above [S.’s] pelvic” area when he 
14

walked in on her on one occasion. S. indicated to defendant’s father that the bruise was 

not from defendant.

Defendant’s older daughter, D., also lived at his parent’s house for a period of 

time. Defendant’s mother described D. as a “mean little witch.” D. did not obey the 

house rules, did not go to school, and would stay up all night and sleep all day. 

Defendant’s mother testified that in one incident, D. “smacked” her after she would not 

let D. walk to town. Defendant’s father testified that D. told him, “If you don’t let me 

have more freedoms out here, . . . I’m going to tell them that you’ve been having sex with 

me.” Defendant’s father “resented” D.’s statement as he had tried to do everything he 

could to help her. Defendant’s father further testified that he caught D. stealing his pills 

and that she admitted stealing his gun.

2. Investigation by a County Social Worker

A county social worker visited S. and K. at the family residence on March 15, 

2012, to investigate an allegation of general neglect regarding a “dirty home” and the 

educational needs of eight-year-old K., who was being home schooled at the time. 

During the visit, the social worker found the RV “unkempt.” S. was cooperative during 

the visit, but the social worker became concerned when K., who was lying on the floor, 

“started making barking sounds at [the social worker],” which was not “age-appropriate 

behavior.” K. otherwise refused to speak to the social worker, which prevented the social 

worker from doing a full assessment of her.

During a follow up visit, defendant, S., and K. were present. Defendant appeared 

“strongly motivated to keep the department out of his family business.” S. seemed 

“completely dependent” on defendant, and defendant did not believe there was an issue 

with the condition of the RV. The RV was cleaner, however, than during the first visit. 

Defendant told the social worker that K. was afraid that the social worker had come to 

take her away. The social worker testified that defendant’s statement “really took away 

any opportunity for [the social worker] to interview [K.]” K. glared at the social worker 
15

and was more reserved during this visit. The social worker testified that K. did not 

appear afraid of either parent. The social worker believed that K. would benefit from 

mental health services in view of the prior barking incident and repeatedly offered family 

services. The social worker observed that S., other than denying the barking incident, 

remained silent during this visit. The social worker believed S.’s lack of participation 

during the second interview was “a sign of concern in terms of the dynamics of power 

and control.” At the same time, however, the social worker did not observe any bruises 

or injuries on S. or K. that were of concern.

3. Police Investigation of the Assault of Older Daughter D.

One of the police officers who was dispatched to the RV park on September 28, 

2013, after defendant hit D., testified at trial. D. reported that she had been hit and 

choked by defendant after a dispute over $20, but she did not report being sexually 

assaulted. She also reported that a week prior defendant had been hitting her with a belt 

and that her stepsister was also being abused. The police officer testified that if an 18-

year-old had been punched and knocked unconscious, the perpetrator would be arrested 

if the victim wanted to press charges. According to the computer-aided dispatch (CAD) 

log, which shows calls to the police for service and communications between officers and 

the dispatcher, D. did not want to press charges and defendant was not arrested after the 

incident. The CAD log indicated that defendant bought D. a plane ticket and that she did 

not want prosecution, but this arrangement was not directed by any of the responding 

officers. The officer testified that he would never tell a defendant that he would not be 

arrested if he bought the victim a plane ticket to fly away.

4. Witnesses’ Observations of the Family

The family’s next door neighbor, Rena Empleo, who had known the family for 

several years, testified that S. and defendant were “not a lovey-dovey couple” and 

appeared to live “separately” in the same house. According to the neighbor, S. was the 

“dominant one” in the relationship, she “boss[ed]” defendant around, and during 
16

arguments she yelled while he listened. The neighbor never heard anything that sounded 

like someone was being struck, and she never noticed bruises or injuries on S. The 

neighbor testified that K. did not appear scared of defendant, was attached to him, and 

was “[a]lways holding on to him.” The neighbor testified that just prior to K. moving 

out, K. and her friends were removing belongings from a storage shed, which was located 

by the family’s RV. The neighbor heard K., who was angry and crying, saying “she 

should never have put her dad in jail.” The neighbor testified that S. was “hanging out” 

with F., to whom S. later became engaged, about two months before S. and K. moved in 

with him.

When asked for her opinion on direct examination, the neighbor testified that 

defendant was not a violent person, he was a “very quiet, peaceful man,” and he was 

never “sexually inappropriate.” On cross-examination, when asked whether she knew 

that in 1997 defendant had raped a woman, the neighbor responded that she had “heard 

of that.” The prosecutor proceeded to ask the neighbor on cross-examination, “So . . . 

you had described the defendant as a nonviolent, peaceful, nice person. So what I want 

to ask you is did you know that in 1997 he had nonconsensual, forcible sex with a 

woman? He told her he wanted to whip her for ten minutes. She said no. He held her 

head down and said to enjoy it. He continued to strike her. She asked to stop and tried 

to protect herself. He continued. She cried and asked him to please stop. He continued 

and had sex with her nonetheless. And then he told her, after he looked at her back, told 

her to keep it covered and not to show anyone. Were you aware of that?” The neighbor 

responded, “No, not really,” and indicated that it did not change her opinion about 

defendant. She explained that it was “the past,” and “[a]s long as it doesn’t affect [her]” 

she was “okay” with it. When asked whether the prosecutor’s description was “pretty 

sexually inappropriate,” the neighbor responded, “If it was to me, yes. If it was to 

somebody else, that’s them.” On redirect examination, the neighbor indicated that she 

had no “way of knowing” whether the prosecutor’s description was “true or false.” On 
17

recross-examination, the neighbor admitted that she knew defendant was convicted of 

sexual assault in 1998.

The office manager for the RV park never noticed bruising on S. or K., and they 

did not seem scared of defendant. The office manager had also never seen K. doing 

“extreme workouts.” Further, no female tenants had expressed concerns to the office 

manager about defendant being “inappropriate.”

The property manager for the RV park likewise never noticed any unusual bruises 

on S. or K. The property manager characterized S. as a “confident woman” even when 

she was around defendant, and she did not appear afraid of him. The pair seemed to be a 

“happy couple.” K. also seemed confident for her age and did not appear afraid of 

defendant. The property manager never saw K. doing “extreme workouts.”

Howard Turner had known defendant for 11 years. The pair trained for jujitsu and 

also socialized together outside the gym. For a period of time, K. also trained at the gym. 

Defendant and K. had a “loving . . . father-daughter relationship.” Turner testified that K. 

could do more push-ups than him and never complained about having to do them. Turner 

had never seen defendant make her do “extreme workouts.” Turner further testified that 

he never suspected S. or K. had been abused, he never saw them with unusual bruises or 

injuries, and they never seemed afraid of defendant. S. appeared to be a confident person 

and was not timid around defendant. S. and defendant “loved each other” and seemed to 

be “on the same team.”

On direct examination, Turner testified that in his opinion, defendant was not a 

violent person with respect to S. and K. and that defendant was not someone who was 

capable of sexual assault. Turner was not aware that defendant had been imprisoned 

years ago for sexual assault. “If evidence was supplied” that defendant used physical 

force to have sex with someone who did not consent, Turner testified that it would 

change his opinion about defendant.
18

On cross-examination, Turner confirmed that in his opinion, defendant was a 

nonviolent person outside the realm of sporting events and jujitsu, and that defendant 

was not capable of sexual assault. The prosecutor then asked Turner whether he knew 

that: “In 1997 in Wisconsin [defendant] had sex with a woman against her will. He 

struck her. He said he wanted to whip her for ten minutes. She said no. He held her 

head down and said to enjoy it. He continued to strike her with a belt. Again she asked 

him to stop and tried to put her hands over her back, but he kept moving them. She cried 

and asked him to please stop, but he persisted. And after the sexual assault, he checked 

her back and told her to keep it covered and not to show anyone.” Turner responded that 

he was not aware of it. He agreed that it was “violent” if “that account [was] accurate.” 

Turner also did not know that in 1998, defendant was convicted of sexual assault in 

Wisconsin. He was further asked whether he knew that defendant had beat and sexually 

assaulted his first wife, L., in Wisconsin, and that he had beat, raped, and sexually 

assaulted his second wife, A. Turner indicated that he did not know, but he agreed that 

“those things [were] violent.” Turner indicated that the information revealed by the 

prosecutor would change Turner’s opinion about whether defendant was capable of 

sexual assault.

On redirect examination, Turner stated that he did not know whether any of “the 

horrible things that the [prosecutor] just read” were true.

Nick Schilbe had known defendant for about 10 years. Schilbe trained with 

defendant in jujitsu for a period of time, and they occasionally socialized outside the 

gym. Schilbe testified that defendant and S. were “equal[s]” in their relationship, were 

“the perfect match for each other,” and were “very confident, loud, gregarious people in 

their own right.” Schilbe testified that S. was “very confident in her ability and previous 

history in martial arts.” When defendant was training with K., Schilbe never saw K. 

doing an “extreme workout.” K. bragged about her ability to do pushups and run a lot. 

Defendant was supportive of K.’s endeavors, and the pair appeared to love each other 
19

very much. Neither S. nor K. seemed scared of defendant. S. and K. were defendant’s 

biggest fans. Schilbe never saw bruises on K., and the injury or bruising he once saw on 

S. was a “long time ago” and “related to her illness of some kind.”

5. Police Investigation After K.’s Report of Abuse

Sheena Woodland was formerly a police detective and the investigating officer in 

defendant’s case. By the time of trial, she was an investigator for the district attorney’s 

office. Several search warrants were obtained in connection with the case. Woodland 

reviewed hundreds or thousands of photographs (including S. nude or seminude), videos 

(including of a sexual nature), and messages that were located on defendant’s cell phone, 

S.’s cell phone, and/or the family computer, disks, or drives but did not find any signs of 

physical or sexual abuse of S. or K. or threats by defendant. A lot of the photographs and 

videos of a sexual nature showed defendant’s interest in young girls although Woodland 

could not determine the exact age of the individuals. There were also recorded phone 

calls between defendant and other people in which defendant expressed an interest in 

underage girls, such as “talking about teenage school girls needing to take off their 

panties and go into the corner.”

Woodland interviewed K. on November 30, 2017. K. took long pauses and put 

her head down a lot of times, and she also “kind of turn[ed] red as if she was upset” 

during other times in the interview.

Woodland interviewed S. on March 14, 2018. S. reported that if she failed to send 

nude pictures to defendant as he requested, she would often be abused. S. also reported 

receiving text messages in which defendant called her derogatory names, but Woodland 

did not find any such messages.

When Woodland contacted D. in December 2018, D. indicated that she knew 

about defendant’s criminal case because she had spoken to K. and S. D. told Woodland 

that defendant had been arrested after the incident in which he punched D. in the face, 

and that she flew home the next day after defendant bought her a plane ticket. Woodland 
20

could not find a report showing that defendant was arrested for the incident. D. also 

reported to Woodland that defendant had raped her while S. and K. were in the same bed, 

but neither S. nor K. mentioned this incident to the police.

6. Defendant’s Affair with C.

C. testified that when she met S., who became her friend, defendant and S. 

appeared to have a good relationship. It seemed more like a friendship, however, because 

they had an “open relationship and slept with other people.” C. testified that S. told her

that defendant worked and did all the household chores. C. never saw any bruises or 

injuries on S. or daughter K., and C. never saw defendant yell or hit K. K. was happy 

around defendant and did not seem afraid of him.

C. testified that S. stated that defendant could sleep with other women outside of 

the marriage. S. seemed “happy” with the arrangement. C. testified that S. had “hit on 

[her],” and because S. liked women, S. preferred that defendant slept with other women. 

C. believed S. had given defendant permission to pursue C. because S. told him that he 

could message C.

C. and defendant began a romantic relationship. A few months later, defendant 

started living with C. Defendant was never violent with C., and C. expected it to be a 

monogamous relationship. C. knew S. was upset about defendant living with C. 

Defendant eventually filed for divorce from S. The relationship between C. and 

defendant lasted about two years. When defendant went back to S., C. was 

“heartbroken.”

C. did not know that defendant had made inappropriate comments to his brother 

about her teenage daughter. Such comments would change her opinion about defendant. 

C. also did not know about defendant’s disparaging comments that objectified women. 

When asked whether she knew defendant as well as she thought, C. indicated that she did 

not “know that person” who was making the comments.
21

7. Defendant’s Testimony

Defendant testified in his own behalf. He went to prison in Wisconsin for “sexual 

intercourse without consent” in 1998. Defendant received four years as part of a plea 

deal. He was released from prison in August 2000, and was on parole for 16 months. 

Defendant also had to register as a sex offender for life.

Defendant testified that he was 27 years old and had been out of prison for two 

or three weeks when he met S., who was almost 19 years old. S. was in karate, and 

defendant found her to be very outgoing and confident. According to defendant, when 

he told S. about his prior sexual assault and prison time, she said, “That kind of excites 

me.” The pair engaged in sexual activity the same night that they met, and they started 

living together after the first or second night. Within the first week, they became 

engaged. Defendant testified that about three or four years into the marriage, S. told him 

that “if [he] ever left her, she’d put [him] back in prison.” According to defendant, this 

became a “common threat” that S. made three to five times a year.

For the first two or three months of their marriage, defendant asked for S.’s 

consent each time before having sex. S. eventually told him that he did not need to ask 

every time. S. began having medical issues, including abdominal pain, during the first 

four years of marriage, which increased later in the marriage. Defendant testified that S. 

never told him “no” until “later on when she started hurting.” Other than when S. was in 

physical pain, she never told him that she did not to have sex. Defendant testified that 

when S. was in pain, they did not have sex. He testified that throughout the entire 

marriage, S. was a consenting partner and that she consented to every sex act that he had 

with her.

During the marriage, defendant and S. had “[n]ormal argument[s].” Defendant 

testified that when he got angry, he was quiet, did not get violent, and would leave to 

avoid a confrontation. He denied hitting, beating, or choking S.
22

Defendant testified that they took nude and partially nude pictures together and 

that the initial idea was S.’s. They also documented their sex life throughout their 

marriage in pictures and videos. Defendant testified that he never threatened S. to 

participate in the pictures or videos, and she never indicated that she was unwilling. He 

also testified that he never forced her to send nude pictures of herself.

Early in their relationship the pair talked about sleeping with other people outside 

of the relationship. It was each person’s choice whether to do so, and the expectation was 

that they would come home to each other. This occurred throughout the entire marriage, 

and S. appeared to be “okay” with it as long as he would “come home.”

Defendant testified that after they met C., defendant told S. that he was sexually 

attracted to C. S., for the first time, told defendant “no,” meaning she did not want him 

to have sex with C. who was her best friend. Defendant testified that he fell in love and 

began having sex with C. within two or three months. Defendant eventually moved in 

with C. Unbeknownst to C., defendant continued to have sex every week with S., who 

never told him no. After a few months, defendant filed for divorce from S. because he 

wanted to marry C.

S. eventually talked defendant out of the divorce by stating that “[K.] needs her 

daddy.” Defendant moved back in with them for about three months in 2017. He was 

still in love with C., however. S. appeared to still want to have sex with defendant, as 

she would initiate it. Defendant believed the “passion” was gone from the marriage. 

K. was also “standoffish” and mad at defendant. S. eventually told defendant that she 

found someone else, and she and K. moved out.

At some point thereafter, defendant’s brother stated in a phone call that he had a 

“pretty decent wife,” and defendant responded, “You know what, mine too. [S.] was a 

great wife. I got no complaints. You know, she was fucking -- she was -- she was 

wonderful. I can’t say nothing bad about her. She just left me.”
23

Defendant previously described himself as a “ ‘professional asshole,’ particularly 

towards women.” He admitted that he had been unfaithful in every relationship, 

including cheating on wife S. with his girlfriend C., and cheating on C. with S. 

Defendant testified that S. was the only person that he was honest with about seeing 

other people. Defendant admitted that he had been with prostitutes when he was in his 

20’s through the time he was with his girlfriend C.

Defendant admitted looking at pornography on his phone and computer. He 

testified that some pornography websites have “categories of porn” and that he had 

visited the “teen” category. Defendant believed the females were not actually underage 

teens but just young-looking women.

Defendant acknowledged that he and his brothers had conversations that were 

demeaning towards women and “extremely sexually explicit,” including regarding C. 

and her daughter. He also had conversation with his brothers about sex that he had 

outside of marriage. Defendant testified that some of things he said during these 

conversations about sex were not true. He also had a conversation about teenage girls 

“taking their panties off.” Defendant acknowledged the conversations were filthy, 

disrespectful, cruel, and sexist, but considered it “locker-room talk.” Defendant admitted 

that he liked “young women.” Defendant, who was 47 at the time of trial, testified that 

he considered anyone 10 years or younger than him to be a young woman. He admitted 

having conversations with his brothers about having sex with young women and getting 

prostitutes. He denied that he had a “particular attraction towards teenage girls.” 

Defendant testified that when he was negotiating for a prostitute in a recorded call, his 

expressed interest in a “young girl” meant a 19-, 20-, or 21-year-old girl.

In another phone call, defendant indicated that he was a “monster[]” but that he 

also had “a little bit of good” in himself. At trial, defendant testified that the statement 

“was meant in a joking manner” and that he and his brother had been laughing. He 
24

explained at trial that “when you’ve been to prison and you have a sex crime conviction, 

you’re looked at as a monster no matter what, even if you’re not.”

After his wife S. had moved out and then returned with a friend to confront him, 

defendant and his brother “jok[ed]” in one conversation that “ ‘women will talk 

tough’ . . . ‘when they know they won’t be hit.’ ” At trial, defendant explained that S.’s 

friend had pushed him several times, and he knew some women would push or hit a 

person “knowing they’re not going to get hit back.”

Defendant testified that he and his brothers received “spankings” as punishment 

by their father when they were growing up, and that a few times his father used a belt on 

him. Defendant testified that it is not “right” to hit a woman.

K. was defendant’s fourth child. He was happy and excited because he “never got 

to be a dad to [his] other kids” and he was “hoping this one would be different.”

Defendant started doing jujitsu 15 years ago. He trained most days of the week 

and eventually began competing. When K. was around seven or eight years old, 

defendant started K. in jujitsu and had her do 10-minute workouts that included 10 each 

of pushups, squats, sit-ups, and “burpees.” Defendant believed she was able to complete 

the workouts, and he did not punish her if she failed to do them.

Defendant admitted spanking K. three or four times over her clothes. He testified 

that all the spankings were for K. lying about where she was. Defendant denied using a 

belt on her or causing marks on her buttocks.

Defendant denied attempting to have sex with K. and denied orally copulating her 

or having her orally copulate him. He also denied getting her naked on the couch.

Defendant had “[a]most zero” contact with his older daughter D. before she 

moved in with him. She was having “legal problems” and “getting in trouble,” so 

defendant thought it might be a “new start.” The pair had verbal disagreements 

“[a]lmost right away.” Defendant’s rules included D. graduating from school, no 
25

smoking in the house, no drinking, and letting him know where she was located. D.’s 

reaction was that she was 18 and an adult so she did not have to follow his rules.

Defendant “suggested” that D. workout with K. Defendant was not aware of D. 

doing the workouts, and there were no consequences for not doing them.

Regarding the incident in which D. slipped and fractured her wrist, defendant 

testified that S. and K. walked her home and that he did not carry her naked through the 

RV park. Defendant denied that they all shared a bed after D. returned home from the 

hospital.

The day before D. moved out, S. told defendant that she suspected D. had taken 

money from S.’s purse. When defendant later asked D. about the money, she denied 

stealing it. Defendant testified that D. “swung a punch” at him, and he slapped her with 

the tips of his fingers. Defendant denied that D. fell down after being hit. She left and 

called the police. Defendant denied being arrested. He testified that it was his idea to 

fly her home and that she left the next morning.

Defendant denied beating D. with a belt. He also denied taking off D.’s clothes 

when she was in bed and denied trying to put his penis in her vagina twice.

Defendant testified that S., K., and D. were lying when they testified. He denied 

being a “monster” to S. and K., and he denied wanting to have sex with D.

Defendant was married to A. for about four years in the 1990’s. They had a child 

together. Defendant denied being violent with her or repeatedly sexually assaulting her.

Defendant stated in a phone call to his brother that defendant was “happy or 

grateful that A. and S. never called the cops.” At trial, defendant testified that “a lot of 

times cops get called when there is no reason.”

D. The Prosecution’s Rebuttal Case

A. was in a relationship with defendant in Michigan in the mid-1990’s, when she 

was between the ages of 15 and 17. The relationship lasted until he went to prison in 

1998. A.’s sister was married to one of defendant’s brothers.
26

The first time that A. and defendant had sex, defendant’s car had gotten stuck. He 

told her that she had to have sex with him if he got the car out. It was dark outside and 

they were alone. A. testified that she agreed to have sex with defendant only because she 

was scared.

When A. was 17 years old, she and defendant married, and they had a child 

together. Defendant physically abused her, including by punching her, slapping her 

across the face, and hitting her with coat hangers. He also put her in “sleeper holds,” 

where he put his arm around her neck and put her to sleep.

Defendant also forced her to have sex. On one occasion, he forced her to have 

oral sex. On another occasion, they were in the backseat of a car that defendant’s father 

was driving. Defendant put a Maglite flashlight inside of her and the forced her to have 

sex. On another occasion, they were in a car by her deceased sister’s gravesite, and 

defendant forced A. to have sex. He told A. that “he wanted [her] deceased sister to see it 

too.”

A. considered leaving defendant or going to the police but she was scared that he 

would hit her more. They separated when defendant went to prison.

A. texted defendant’s brother in December 2017, inquiring about defendant’s 

situation. A. texted defendant’s brother, “I agree and pray he doesn’t go to prison.” 

A. had heard that defendant was being charged only for something he had done to his 

daughter K. A. also texted, “I sure hope he gets out of this shit. Why doesn’t she just 

leave him alone if she moved on.” A. was referring to S. At trial, A testified that she 

was concerned about defendant “not getting in trouble for [K.]” and that she (A.) did not 

think he would hurt his own daughter. A. further texted, “That’s BS. I pray to God he 

gets out of this shit and the last laugh is on her.” At trial, A. testified that she “was 

hoping the last laugh was on [S.] for the stuff they were saying that he supposedly had 

done to [K.]” A. further texted that she would not be able to write to defendant because 

the man who she was currently with “ ‘would not allow that.’ ” A. had previously written 
27

to defendant when he was in prison the first time because, despite what he had done to 

her, she “still wanted [her] son to grow up knowing who his father was.”

A. testified that these text messages were sent before she knew the prosecutor 

wanted her to testify against defendant. When the police contacted her and asked 

whether she had been sexually or physically abused by defendant, she replied that she 

would have reported it if it had occurred. A. also testified that she had never been 

questioned about the abuse until she was contacted in 2018 regarding defendant’s current 

criminal case. A. did not voluntarily testify at defendant’s trial and had to be ordered to 

appear. She testified that defendant’s abuse caused her trauma and “nightmare after 

nightmare.” At first, A. did not want to testify and “relive all the horrible nightmares.” 

However, someone told her that “maybe it would be good for [her] to just get it out in the 

open so [she could] finally just move on with [her] life and just try to get the help that 

[she] needed to get over the nightmares and stuff.”

E. The Charges, Verdicts, and Sentencing

Defendant was charged by third amended information with eight counts against 

his wife S., their daughter K., and his older daughter D. Regarding S., defendant was 

charged with spousal rape (former § 262, subd. (a)(1); count 4). Regarding younger 

daughter K., defendant was charged with two counts of oral copulation with a child aged 

10 or younger (§ 288.7, subd. (b); counts 1 & 5) and two counts of aggravated sexual 

assault of a child under the age of 14 by rape (§§ 269, subd. (a)(1), 261, subd. (a)(2) or 

(6); counts 2 & 3). Regarding his older daughter D., defendant was charged with forcible 

rape (§ 261, subd. (a)(2); count 6), forcible sexual penetration (§ 289, subd. (a)(1)(A); 

count 7), and assault by means of force likely to produce great bodily injury (§ 245, 

subd. (a)(4); count 8). The information also alleged that the sex offenses were committed 

against more than one victim (§ 667.61, subds. (b) & (e)).

At the close of evidence, defendant brought a motion for acquittal (§ 1118.1), 

which the trial court granted as to count 7, forcible sexual penetration of D.
28

On February 25, 2020, the jury found defendant guilty on counts 1 through 5, the 

offenses committed against his wife S. and daughter K. The jury also found true the 

allegation that defendant was guilty of two or more sex offenses against more than one 

victim. Regarding the remaining counts committed against his older daughter D., the jury 

found defendant guilty of simple assault (§ 240), a lesser offense of assault by means of 

force likely to produce great bodily injury, which was charged in count 8. The jury found 

defendant not guilty on count 6.

On December 3, 2020, the trial court sentenced defendant to consecutive terms of 

15 years to life on each of counts 1 through 4, a concurrent term of 15 years to life on 

count 5, and a one-year concurrent term on count 8, for an aggregate term of 60 years to 

life. The court granted defendant a total of 1,257 days of custody credits, consisting of 

1,093 actual days plus 164 days of conduct credit. Defendant was also ordered to pay 

various amounts, including a criminal justice administration fee of $129.75.

III. DISCUSSION

A. Admission of Evidence Regarding Defendant’s Uncharged Sex Offenses 

Against His Former Wife A.

Defendant contends that the admission of evidence of his uncharged sex offenses 

against his former wife A. was an abuse of discretion and violated due process. 

Specifically, he argues that the trial court failed to identify the factors it used to balance 

the probative value of the evidence against the prejudicial effect. Defendant further 

contends that the proffered evidence should have been excluded, because the uncharged 

offenses were remote in time, the court failed to consider the degree of certainty that the 

uncharged offenses actually occurred, defendant was never arrested or convicted for the 

offenses, the court should have considered the burden on defendant in defending against 

the allegations, and the court should have considered the availability of less prejudicial 

alternatives to admission of the evidence.
29

The Attorney General contends that evidence of defendant’s prior uncharged 

offenses against his ex-wife A. were admissible under Evidence Code section 1108, were 

not unduly prejudicial under Evidence Code section 352, and that any error in admitting 

the testimony was harmless.

1. Background

The prosecutor filed a pretrial motion in limine to admit evidence of defendant’s 

prior sexual assaults of three women under Evidence Code section 1108. The prosecutor 

contended that defendant (1) raped a woman repeatedly between approximately 1992 to 

1995, (2) sexually assaulted, including raped, his ex-wife, A., repeatedly from 1995 until 

he went to prison in 1998 for raping another woman, and (3) was convicted in Wisconsin 

in 1998 for third degree sexual assault for raping a woman and sentenced to four years in 

prison. The prosecutor argued that the evidence was probative regarding whether 

defendant sexually assaulted S., who he began dating in 2000. Relevant to this appeal, 

the prosecutor contended that the prior sexual offenses were not inadmissible under 

Evidence Code section 352 because: (1) although the prior offenses occurred many years 

ago, it showed defendant’s continuous pattern of sexually abusing young woman that he 

dated; (2) although defendant had not been convicted of assaulting A., she was expected 

to testify at trial, she would be subject to cross-examination, and defendant himself could 

testify and refute her claims; (3) the prior sexual assaults of the women that he dated were 

less inflammatory than the charges involving his sexual assault of his own daughters; and 

(4) any prejudice could be minimized by limiting the number of instances of Evidence 

Code section 1108 evidence, limiting the amount of time spent questioning A., and giving 

appropriate jury instructions.

Defendant filed a motion in limine to exclude the evidence pursuant to Evidence

Code section 352 and his state and federal constitutional rights to due process and equal 

protection. Relevant to this appeal, although he “concede[d] that the allegations made by 

[A. were] somewhat similar to the current allegations of alleged victim [S.],” he argued 
30

that the prior alleged offenses were too remote in time. Defendant also contended that 

the probative value was outweighed by the likelihood that A’s testimony would create a 

“mini trial” resulting in an undue consumption of time, was highly prejudicial, and would 

confuse the issues which would confuse the jury. To the extent the evidence was 

admitted, defendant requested that the trial court limit the evidence to minimize the risk 

of prejudice and the undue consumption of time, such as by admitting only some of the 

prior sex offenses and excluding inflammatory details.

At the hearing at the motion, the prosecutor reiterated that the evidence of prior 

sexual assaults under Evidence Code section 1108 should be admitted over an Evidence 

Code section 352 objection. Defendant contended the evidence should be excluded based 

on the “prejudicial risk of not only inflaming the jury but also of confusing the issues . . . 

as well as the reliability of this evidence.” Regarding the evidence concerning A., 

defendant argued that A. became pregnant with his child when she was 16 years old, 

which was the age of consent in Michigan. This would “confuse the jury” and “inflame 

them.” Defendant also contended that A. provided only general statements about being 

hit in the face and that she was not able to “give specific times or more facts than those 

generalities.” Finally, defendant contended that the argument that the prior sexual 

assaults were similar because they were “ ‘consensual to physical to nonconsensual’ 

sexual relationship[s]” made “it almost too broad and too easy to say that all of these 

sexual assaults fall under the same umbrella to show propensity of generic sexual 

assaults” and that there was “a danger to prejudice [defendant] in a way that he will be 

unable to cure.”

The trial court ruled that the sexual assaults of all three women were admissible, 

but limited the scope or form of the evidence. First, the court stated that “under 

[Evidence Code section] 352 grounds,” it was going to limit the witnesses who could 

testify regarding the sexual assault of the first woman. Regarding defendant’s sexual 

assault of the second woman A., the court ruled that that she would be allowed to testify 
31

as she was “the direct victim and has personal knowledge and even though, as [defense 

counsel] indicated, it involved a wide range of conduct, as long as it’s physical and/or 

sexual in nature, specifically if she was hit in the face or was otherwise sexually 

assaulted, she will be allowed to testify as to those incidents.” Lastly, after stating that it 

had “endeavored to weigh the [Evidence Code section] 352 factors that [it was] obligated 

to do,” the court indicated the abstract of judgment relating to defendant’s conviction for 

sexually assaulting the third woman would be admitted, but that “there will not be any 

recited facts or information concerning the specifics of the conduct involved. That would 

be inflammatory; that would be prejudicial.” The court proceeded to confirm with 

defense counsel that the court, “in addressing the People’s [Evidence Code section] 1108 

motion, that would also encompass the defense’s motion in limine on the same subject 

matter.”

2. Law

Generally, “propensity evidence is not admissible to prove a defendant’s conduct 

on a specific occasion. [Citations.]” (People v. Jackson (2016) 1 Cal.5th 269, 299-300; 

see Evid. Code, § 1101, subd. (a).) “Evidence Code section 1108 provides an exception 

to the general rule and permits evidence that a defendant accused of a sexual offense 

has committed another sexual offense, potentially showing a propensity to do so. 

[Citation.]” (People v. Baker (2021) 10 Cal.5th 1044, 1089.) “ ‘In enacting Evidence 

Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so 

uniquely probative in sex crimes prosecutions it is presumed admissible without regard 

to the limitations of Evidence Code section 1101.’ [Citation.]” (People v. Loy (2011) 

52 Cal.4th 46, 63 (Loy).) Further, “ ‘ “[t]he Legislature has determined the need for this 

evidence is ‘critical’ given the serious and secretive nature of sex crimes and the often 

resulting credibility contest at trial. . . .” [Citations.] . . . “With the enactment of 

[Evidence Code] section 1108, the Legislature ‘declared that the willingness to commit 

a sexual offense is not common to most individuals . . . .’ ” ’ [Citation.]” (People v. 
32

Nguyen (2010) 184 Cal.App.4th 1096, 1115, fn. 13.) Evidence Code “[s]ection 1108 

provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s 

possible disposition to commit sex crimes. [Citation.]” (People v. Falsetta (1999) 

21 Cal.4th 903, 915.)

“In a criminal action in which the defendant is accused of a sexual offense, 

evidence of the defendant’s commission of another sexual offense” is subject to exclusion 

under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) “Evidence Code 

section 352, in turn, provides that ‘[t]he court in its discretion may exclude evidence if its 

probative value is substantially outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.’ ‘In short, if evidence 

satisfies [Evidence Code] section 1108, and is not excluded under [Evidence Code] 

section 352, admission of that evidence to prove propensity is permitted.’ [Citations.]” 

(People v. Dworak (2021) 11 Cal.5th 881, 899 (Dworak).)

“ ‘By reason of [Evidence Code] section 1108, trial courts may no longer deem 

“propensity” evidence unduly prejudicial per se,’ but trial courts ‘must engage in a 

careful weighing process under [Evidence Code] section 352.’ [Citation.] . . . [T]he trial 

court’s determination should be guided by such factors as the ‘nature, relevance, and 

possible remoteness’ of the evidence, ‘the degree of certainty of its commission and the 

likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its 

similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on 

the defendant in defending against the uncharged offense, and the availability of less 

prejudicial alternatives to its outright admission, such as admitting some but not all of the 

defendant’s other sex offenses, or excluding irrelevant though inflammatory details 

surrounding the offense.’ [Citation.]” (Dworak, supra, 11 Cal.5th at p. 900.)

We review a trial court’s rulings under Evidence Code sections 1108 and 352 for 

abuse of discretion. (Dworak, supra, 11 Cal.5th at pp. 899-900.) “ ‘To establish an 
33

abuse of discretion, defendant[] must demonstrate that the trial court’s decision was so 

erroneous that it “falls outside the bounds of reason.” [Citations.] A merely debatable 

ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will 

be “established by ‘a showing the trial court exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest miscarriage of 

justice.’ ” ’ [Citation.]” (People v. Miracle (2018) 6 Cal.5th 318, 346-347 (Miracle).)

3. Analysis

We determine that the trial court did not abuse its discretion in finding that 

defendant’s uncharged conduct against A. was admissible under Evidence Code 

sections 1108 and 352. Defendant’s conduct against A. was highly probative, as it 

involved his sexual assault, including rape, of a young partner, similar to the charged 

conduct against his former wife S.

On appeal, defendant contends that “the trial court did not identify the factors it 

used to balance the prejudicial effect against the probative value of the evidence to be 

presented through [A.]” Although defendant acknowledges that a court is “presumed to 

have known the law and correctly applied it,” he contends the presumption was rebutted 

in this case because it was only later during an Evidence Code section 402 hearing held 

on a different day that the court specifically referred to Evidence Code section 352.

We are not persuaded by defendant’s contention. The California Supreme Court 

has stated that “a court need not expressly weigh prejudice against probative value or 

even expressly state that it has done so, if the record as a whole shows the court was 

aware of and performed its balancing functions under Evidence Code section 352.” 

(People v. Taylor (2001) 26 Cal.4th 1155, 1169 (Taylor).) In this case, the parties’ 

pretrial written motions both addressed whether evidence of defendant’s prior sex 

offenses should be excluded under Evidence Code section 352. At the hearing on the 

competing motions, the parties again addressed whether the evidence should be excluded 

under Evidence Code section 352. The trial court in ruling on the motions expressly cited 
34

Evidence Code section 352 when explaining why it was limiting the witnesses or the 

scope of evidence as to defendant’s sex offenses committed against his first and third 

female victims. Further, after making its ruling, the court confirmed with defense 

counsel that its ruling “also encompass[ed] the defense’s motion in limine on the same 

subject matter,” which as we have just explained, was a defense motion seeking 

exclusion of the evidence under Evidence Code section 352. Although the court did not 

expressly cite Evidence Code section 352 when ruling on the admissibility of defendant’s 

sex offenses against the second female victim A., we determine that “the record as a 

whole shows the court was aware of and performed its balancing functions under 

Evidence Code section 352.” (Taylor, supra, at p. 1169.)

Second, defendant argues that the sex offenses involving A., which occurred in the 

mid to late 1990’s, were “extremely remote in time,” which decreased the probative value 

of the evidence.

We find defendant’s argument unpersuasive. “No specific time limits have been 

established for determining when an uncharged offense is so remote as to be 

inadmissible. [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 284; see 

People v. Cordova (2015) 62 Cal.4th 104, 133 [time gap of 13 and 18 years “does not 

compel exclusion of the evidence”; “[n]either Evidence Code [§] 352 nor Evidence Code 

[§] 1108 contains rigid requirements”].) Further, the “ ‘ “staleness” of an offense is 

generally relevant if and only if the defendant has led a blameless life in the interim.’ 

[Citation.]” (Dworak, supra, 11 Cal.5th at p. 901.) In this case, defendant committed the 

uncharged sex offenses against A. in the years leading up to his incarceration for the 

sexual assault of another woman. Upon his release from prison, he began a relationship 

with S, the victim in the instant case, and committed sexual assaults against her 

throughout that relationship. As the prosecutor observed in the pretrial motion to admit 

the evidence, “the only thing that seems to stop [d]efendant from sexually assaulting 

women is going to prison.” On this record, the trial court did not err in determining that 
35

the sexual offenses committed against A. were not too remote in time. (See ibid. [prior 

sexual offense was not too remote where the defendant “was incarcerated or on parole . . . 

for the bulk of the time between the two incidents”]; Loy, supra, 52 Cal.4th at p. 62 

[timing of prior offenses committed 15 and 21 years before the charged offense

“provided no reason to exclude them” where the defendant was in prison “for much of 

the time” between the offenses].)

Third, defendant argues that the “degree of certainty of the commission of these

offenses” against A. and the burden on him to defend against the allegations warranted 

exclusion of the evidence.

Defendant fails to demonstrate that the trial court erred by not excluding the 

evidence on this ground. At the time of the trial court’s ruling, it was anticipated that A. 

would testify. She did in fact testify at trial, and she was subject to cross-examination. 

The evidence of defendant’s sexual offenses against A. was limited to testimony by her, 

and the prosecutor’s direct examination of A. was relatively brief, spanning less than

11 pages of the reporter’s transcript. Defendant testified at trial and denied being violent 

with A. or repeatedly sexually assaulting her. “It is well settled . . . that the reliability of 

a witness’s testimony is a matter for the jury to decide and therefore concerns the weight 

of the evidence, and not its admissibility. [Citation]” (People v. Merriman (2014) 

60 Cal.4th 1, 57 (Merriman) [rejecting the defendant’s argument that prior sexual offense 

evidence should have been excluded because the victim’s recollection of the events was 

“vague, disjointed, and inherently unreliable”].)

Fourth, defendant contends that the prejudicial impact of the evidence was 

increased by the fact that he was never arrested or convicted for the sexual offenses 

against A. He argues that the jury might have been tempted to convict him of the charged

offenses regardless of his guilt in order to punish him for the uncharged offenses. He 

further contends that the jury’s attention might have been “diverted” to a determination 

of whether he committed the offenses against A.
36

Defendant fails to persuade us that the trial court erred in admitting the evidence. 

“That defendant had not been charged and convicted of any sexual crimes in connection 

with . . . [A.] arguably increased the potential for undue prejudice because of the risk that 

the jury might want to convict defendant of the charged offenses because he had escaped 

punishment for his crimes against [A.]. We observe furthermore that because there was 

no prior conviction, defendant’s commission of the offenses against [A.] was less certain 

and he bore some additional burden defending against that evidence. [Citation.] None of 

these factors is dispositive, however.” (Merriman, supra, 60 Cal.4th at p. 59.) As we 

have indicated, the evidence of sex offenses against A. demonstrated defendant’s 

continuous pattern of sexually assaulting young female partners. “Given the strong 

probative value of the evidence in question, the potential for prejudice did not overcome 

Evidence Code section 1108’s presumption in favor of admissibility of the sexual offense 

evidence to show defendant’s propensity to commit the charged sexual offense[]” against 

his wife S. (Ibid.)

Fifth, defendant contends that the trial court should have considered the 

availability of less prejudicial alternatives to admission of the allegations. He argues that 

A. “testified in somewhat graphic detail that [defendant] had beaten her, forced her to 

have sex with him, forced her to perform oral sex on him, and penetrated her with a 

flashlight.” Defendant observes that A. also testified about being hit with coat hangers. 

He contends that “[t]he details of these incidents - particularly the mention of coat 

hangers and flashlights - were sure to evoke an emotional response in the jurors. They 

easily could have been, and certainly should have been, excluded.”

Defendant fails to demonstrate error. Although he made a general request below 

in his written pretrial motion in limine to “sanitize the priors if admitted” (bold omitted), 

defendant does not provide a record citation showing that he specifically requested that 

the trial court limit the evidence in the manner he now suggests. Indeed, at the time the 

trial court made its pretrial rulings on the parties’ motions in limine, it does not appear 
37

that the trial court was informed by either party that A. would be testifying about, for 

example, coat hangers or a flashlight. To the extent A. raised one or more of these issues 

when she subsequently testified outside the presence of the jury at an Evidence Code 

section 402 hearing, defendant did not seek a ruling from the court to limit the scope of 

her trial testimony as he now urges on appeal. On this record, where defendant failed to 

request below that A.’s testimony be limited in the manner he now urges on appeal, 

defendant cannot show error in the trial court’s admission of the evidence. (See People v. 

Letner and Tobin (2010) 50 Cal.4th 99, 159 [notwithstanding an in limine motion to 

exclude evidence, a defendant must “renew [the] objection at trial, when the trial court 

would have the opportunity to evaluate [the] objections in light of the actual evidence 

presented”].)

In sum, we cannot say that the trial court’s determination—that the probative 

value of the uncharged sex offenses involving A. outweighed its prejudicial effect in 

establishing defendant’s propensity to commit the charged sexual offense involving S.—

fell outside the bounds of reason. Accordingly, we determine that the court did not abuse 

its discretion in admitting the evidence of the uncharged sex offenses involving A. under 

Evidence Code sections 1108 and 352. (Dworak, supra, 11 Cal.5th at pp. 899-900.)

Defendant further contends that the admission of the evidence regarding A. 

violated his federal constitutional rights to due process and a fair trial. As defendant 

acknowledges, the California Supreme Court has “rejected the argument . . . that 

admission of prior crimes under Evidence Code section 1108 violates the constitutional 

right to due process and a fair trial.” (Dworak, supra, 11 Cal.5th at p. 900.) Defendant 

nevertheless contends that “the admission of irrelevant and prejudicial evidence may 

become so ‘fundamentally unfair’ as to offend the United States Constitution’s guarantee 

of due process.” As we have explained, however, defendant fails to establish that the trial 

court did not properly engage in the required weighing process under Evidence Code 

section 352, the evidence of sex offenses committed against A. was probative of 
38

defendant’s propensity to commit sex crimes, and defendant fails to establish that 

admission of the evidence was unduly prejudicial under Evidence Code section 352. 

“The admission of the evidence thus did not violate defendant’s constitutional rights.” 

(People v. Rhoades (2019) 8 Cal.5th 393, 415.)

B. Exclusion of Photograph of Daughter K. and Wife S.

Defendant contends that the trial court abused its discretion by excluding a 

photograph of his daughter K. and wife S. In the photograph, K. is apparently standing 

behind S., who is topless, with K.’s arms reaching around to cover S.’s breasts. 

Defendant argues that the photograph was relevant “to show that [K.’s] source of sexual 

knowledge could have been from her mother considering the extremely close and 

intimate relationship between them.” He also argues that the photograph was relevant to 

S.’s credibility, because although S. told the police that defendant forced them to pose for 

the picture, S. purportedly “ ‘backtrack[ed]’ ” on that explanation after it was pointed out 

the photograph was a “ ‘selfie.’ ” The Attorney General contends that the court did not 

abuse its discretion in excluding the photograph.

1. Background

The prosecutor filed a pretrial motion in limine to exclude the mother-daughter 

photograph. The prosecutor contended the photograph was irrelevant to the issues in the 

case, and there was “a huge risk of unfair prejudice” as jurors would speculate and leap to 

“unwarranted conclusions” about S. molesting or abusing K. The prosecutor also argued 

that the “effect of admitting this photograph would be to smear these victims and portray 

them as indecent, shameless, or obscene.”

At the hearing on the motion, the parties indicated that K. was a “young teenager” 

between 11 and 13 years old in the photograph and that she appeared to be fully clothed. 

The photograph was a “thumbnail [picture] found on one of [S.’s] phones.” The 

prosecutor contended that “whatever probative value” existed regarding the photograph 

was “substantially outweighed by the risk of undue prejudice.” The prosecutor argued 
39

that the “nude” photograph would be perceived as indecent and only served to “smear” 

and make K. and S. “look bad.”

Defense counsel contended that the photograph was relevant for two reasons. 

First, counsel argued that K. had alleged she was molested, but the defense believed 

“there could be an alternate source of her . . . sexual knowledge. Not because of her 

experiences with it, but because of the comfort level she has with her mother and . . . 

with the comfort level that they’ve shared, the communication they’ve shared, and the 

intimacy they’ve shared, their nonsexual intimacy.” Defense counsel clarified that he 

was “not making any inference that [S.] is harming [K.] in any way,” only that the pair 

were “as close as mother and daughter can be, not sexually.” Second, defense counsel 

contended that S.’s initial reaction when asked by the police about the photograph was 

to “blame” defendant and say that “[he] took that picture.” However, after the police 

indicated that it was a “selfie,” in which S. was holding the phone in her hand and taking 

the picture, “she had to backtrack that story.” Counsel argued that the photograph thus 

showed S.’s bias towards defendant.

The trial court ruled that the photograph would be excluded. The court stated, 

“[I]t may be probative – minorly probative on bias, but I just don’t really see that that

needs to come in to make that point.” The court stated that defense counsel could 

examine S. at trial and presumably she would not deny the existence of the photograph. 

However, if defense counsel was trying to establish bias, there were “other avenues for 

doing that,” and this photograph was “too distractive and time-consuming.”

Defense counsel sought clarification about questioning S. at trial about the picture. 

The trial court replied that “if this is the sole piece of bias,” then counsel was entitled to 

question S. about it. However, if the photograph was “only one little piece of . . . the bias 

puzzle,” and counsel had “other instances of exchanges, communications, circumstances 

that are going to make that point,” then the photograph was “really just cumulative on the 

point of bias, and it doesn’t really need to come in.” The court stated that if this 
40

particular photograph was “the only way” counsel could make the point, then the court 

would “revisit that, looking at the photo. But for the time being, that whole subject 

matter should not necessarily be brought up or come in.”

Defense counsel then asked whether the limitation on evidence also included 

“asking [K.] about her source of knowledge of sex and sexual activities.” The trial court 

responded affirmatively and explained, “I think for the same reason. Even more so, . . . 

I think that’s just getting far outside the aura of the sphere of relevancy and 

probativeness.” The court ruled that “that whole subject is to be steered away from.”

2. Law

Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant 

if it has “any tendency in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action,” including the credibility of a witness. 

(Id., § 210.) A trial court has discretion to exclude relevant evidence if “its probative 

value is substantially outweighed by the probability that its admission will (a) necessitate 

undue consumption of time or (b) create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.” (Id., § 352.)

As we stated above, we review a trial court’s rulings under Evidence Code 

section 352 for abuse of discretion. (Dworak, supra, 11 Cal.5th at pp. 899-900.) “ ‘To 

establish an abuse of discretion, defendant[] must demonstrate that the trial court’s 

decision was so erroneous that it “falls outside the bounds of reason.” [Citations.] A 

merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse 

of discretion will be “established by ‘a showing the trial court exercised its discretion in 

an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage 

of justice.’ ” ’ [Citation.]” (Miracle, supra, 6 Cal.5th at pp. 346-347.)

3. Analysis

We find no abuse of discretion in the trial court’s exclusion of the photograph. 

First, the photograph, as described in the record with K. holding her mother’s bare 
41

breasts, would not have “any tendency in reason to prove or disprove” K.’s knowledge of 

sex, or her report as a teenager of defendant sexually abusing her when she was younger. 

(Evid. Code, § 210.) K. testified, among other things, that defendant made her hold his 

penis and put her mouth on his penis, put his mouth on her vagina, and put his penis in 

her vagina which she found to be physically painful when it occurred. The photograph 

“would simply have invited to the jury to speculate” (People v. Curl (2009) 46 Cal.4th 

339, 360 (Curl)) that K.’s physical descriptions of these sex acts by defendant somehow 

came from “nonsexual intimacy” with her mother as argued by defendant’s trial counsel, 

and that K. used this purported knowledge to fabricate a report of sexual abuse by 

defendant. As these are “ ‘speculative inferences,’ ” the photograph was not relevant and 

the court did not err in excluding it. (Ibid.; see People v. Nieves (2021) 11 Cal.5th 404, 

445 (Nieves) [no abuse of discretion by “excluding evidence that produces only 

speculative inferences”].)

The trial court likewise did not err in excluding the photograph as being “too

distractive and time-consuming” notwithstanding its finding that the photograph was 

“minorly probative on bias.” We understand the trial court’s ruling in this context to

mean that the photograph’s minimal probative value was substantially outweighed by: 

(1) the risk of undue prejudice from a seemingly provocative mother-daughter 

photograph, and (2) the likelihood that the photograph would create the need for 

additional evidence about the circumstances of the photograph and evidence from the 

prosecutor to rebut any speculation or “unwarranted conclusions” that K. and S. had 

posed for an “indecent, shameless, or obscene” photograph. The court explained that it 

would “revisit” its ruling excluding the photograph if the photograph was “the sole piece 

of bias” that defense counsel had. On appeal, defendant does not dispute that he had 

other evidence to establish S.’s bias against him. Given the nature of the photograph 

itself and the existence of other evidence to establish S.’s bias against defendant, we find 

no abuse of discretion in the court’s determination that the risk of undue prejudice and 
42

undue consumption of time substantially outweighed the minimal probative value of a 

provocative mother-daughter photograph.

For the first time in his reply brief on appeal, defendant argues that the photograph 

“demonstrates . . . that [S.], motivated by jealousy, may have coached [K.] about sexual 

activity in order to prepare her for making false yet convincing accusations against 

[defendant]. The photograph would have made the defense argument much more 

plausible even though the actual image did not explain how she knew about certain 

specifics.” Defendant fails to provide a record citation showing that he made this 

argument below in opposition to the prosecutor’s motion in limine to exclude the 

photograph. On the merits, defendant’s argument amounts to speculative inferences that 

he seeks to have the jury draw from the photograph and as such, the court did not err in 

excluding the photograph. (Curl, supra, 46 Cal.4th at p. 360; Nieves, supra, 11 Cal.5th at 

p. 445.)

C. Admission of CSAAS Expert Testimony

Defendant filed a pretrial motion in limine seeking to exclude or limit CSAAS 

evidence. After hearing argument from the parties, the trial court ruled that CSAAS 

evidence would be admitted, except regarding the issue of retraction as the parties had 

agreed there was no evidence the victim had retracted her report of abuse. At trial, the 

jury was instructed pursuant to CALJIC No. 10.64 that CSAAS evidence “must not be 

considered . . . as proof that the alleged victim’s molestation claim is true”; that CSAAS 

“seeks to describe and explain common reactions of children to that experience”; that 

the jury was to “presume the defendant innocent”; that the “People have the burden of 

proving guilt beyond a reasonable doubt”; and that CSAAS evidence should be 

considered “only for the limited purpose of showing, if it does, that the alleged victim’s 

reactions, as demonstrated by the evidence, are not inconsistent with her having been 

molested.”
43

On appeal, defendant does not challenge the specifics of the trial court’s ruling 

under the particular facts of this case. Instead, he contends that “CSAAS evidence should 

be inadmissible for all purposes because it is unreliable in that, by its very nature, it will 

always support the conclusion that the abuse actually occurred.” The Attorney General 

contends that the trial court did not abuse its discretion in admitting the evidence.

Expert opinion testimony is admissible when the opinion is “[r]elated to a subject 

that is sufficiently beyond common experience that the opinion of an expert would assist 

the trier of fact.” (Evid. Code, § 801, subd. (a).) Relevant here, expert opinion testimony 

is permitted “to explain to lay jurors conduct that may appear counterintuitive in the 

absence of such insight. [Citations.]” (People v. Ward (2005) 36 Cal.4th 186, 211.) 

Indeed, “ ‘[t]he jury need not be wholly ignorant of the subject matter of the opinion in 

order to justify its admission . . . . It will be excluded only when it would add nothing at 

all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of 

such common knowledge that men [or women] of ordinary education could reach a 

conclusion as intelligently as the witness.” ’ [Citation.]” (People v. McAlpin (1991) 

53 Cal.3d 1289, 1299-1300 (McAlpin).)

CSAAS evidence has long “been held admissible for the limited purpose of 

disabusing a jury of misconceptions it might hold about how a child reacts to a 

molestation. [Citations.]” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino); 

see also McAlpin, supra, 53 Cal.3d at pp.1300-1301; People v. Lapenias (2021) 67 

Cal.App.5th 162, 171 (Lapenias); People v. Munch (2020) 52 Cal.App.5th 464, 468

(Munch); People v. Gonzales (2017) 16 Cal.App.5th 494, 503; People v. Bowker (1988) 

203 Cal.App.3d 385, 393-394.) Such expert testimony is admissible “if the victim’s 

credibility is placed in issue due to the paradoxical behavior, including a delay in 

reporting a molestation. [Citations.]” (Patino, supra, at pp. 1744-1745.)

The California Supreme Court has explained in the analogous context of the rape 

trauma syndrome that expert testimony “may play a particularly useful role by disabusing 
44

the jury of some widely held misconceptions about [abuse] and [abuse] victims, so that 

it may evaluate the evidence free of the constraints of popular myths. [Citations.]” 

(People v. Bledsoe (1984) 36 Cal.3d 236, 247-248, fn. omitted.) The California Supreme 

Court has also referenced “the close analogy between use of expert testimony to explain 

the behavior of domestic violence victims, and expert testimony concerning victims of 

rape or child abuse,” and has held that expert testimony regarding commonly observed 

behaviors of domestic violence victims, such as the tendency to recant, is admissible. 

(People v. Brown (2004) 33 Cal.4th 892, 905; see id. at pp. 895-896, 906-907.) Further, 

in the analogous context of a parent of an abused child, the California Supreme Court 

has observed that “[m]ost jurors, fortunately, have been spared the experience of being 

the parent of a sexually molested child. Lacking that experience, jurors can rely only on 

their intuition or on relevant evidence introduced at trial.” (McAlpin, supra, 53 Cal.3d at 

p. 1302.)

Given that the expert testimony in this case sought to explain behaviors by a child 

sexual abuse victim that may appear counterintuitive, such as those behaviors exhibited 

by K., and given that the California Supreme Court has observed that most jurors lack 

personal experience with child molestation victims, we believe the trial court could have 

properly determined that expert opinion regarding CSAAS “[r]elated to a subject that is 

sufficiently beyond common experience” and “would assist the trier of fact.” (Evid. 

Code, § 801, subd. (a).)

Relying on several out-of-state cases, we understand defendant to contend that the 

California cases should be reexamined. We decline to do so. To the extent our Supreme 

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

analogous contexts of rape or domestic violence of adult victims, 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.)
45

We are also not persuaded by defendant’s contention that CSAAS evidence should 

be excluded as unreliable. Under the Kelly rule,3“evidence obtained through a new 

scientific technique may be admitted only after its reliability has been established under a 

three-pronged test.” (Bolden, supra, 29 Cal.4th at p. 544.) In contrast to evidence that is 

based on a new scientific technique or procedure, expert opinion testimony is generally 

not subject to Kelly. The California Supreme has explained that “in most cases no similar 

caution is required before a jury considers expert opinion testimony. Unlike results 

‘produced by a machine,’ to which jurors may ‘ascribe an inordinately high degree of 

certainty,’ jurors presented with the personal opinion of a witness, even an expert 

witness, ‘may temper their acceptance of his [or her] testimony with a healthy skepticism 

born of their knowledge that all human beings are fallible.’ [Citations.] For this reason, 

‘ “ ‘[a]bsent some special feature which effectively blindsides the jury, expert opinion 

testimony is not subject to Kelly[].” ’ [Citations.]” (People v. Peterson (2020) 10 Cal.5th

409, 458.) California courts have thus held that expert opinion testimony about CSAAS 

is not subject to the Kelly rule. (See, e.g., Lapenias, supra, 67 Cal.App.5th at p. 173; 

Munch, supra, 52 Cal.App.5th at pp. 472-473; People v. Harlan (1990) 222 Cal.App.3d 

439, 449.)

Accordingly, we conclude that the trial court did not err in admitting expert 

testimony about CSAAS.

3 As explained by the California Supreme Court, “[u]ntil 1993, this rule was 

generally known in this state as the Kelly-Frye rule because this court in [People v.] Kelly

[17 Cal.3d 24] had relied on the reasoning of a federal appellate court decision, Frye v. 

United States (D.C. Cir. 1923) 293 F. 1013 (Frye). In 1993, the United States Supreme 

Court held that the Federal Rules of Evidence had superseded Frye [citation], and our 

state law rule is now referred to simply as the Kelly test or rule. [Citation.]” (People v. 

Bolden (2002) 29 Cal.4th 515, 545 (Bolden); accord, Nieves, supra, 11 Cal.5th at p. 442, 

fn. 8.)
46

D. Prosecutor’s Recitation of Facts Underlying Defendant’s 1998 Conviction on 

Cross-Examination of Defense Character Witnesses

Defendant contends that the prosecutor committed misconduct in crossexamination of defense character witnesses by reciting the facts of defendant’s 1998 

Wisconsin conviction for third degree sexual assault, after the court previously ruled 

during pretrial motions in limine that the underlying facts would be excluded. He also 

argues that the court erred by changing its ruling during trial to allow the prosecutor to 

recite the facts on cross-examination and that his federal constitutional rights to due 

process and a fair trial were violated. To the extent his claims are forfeited, defendant 

contends that his trial counsel rendered ineffective assistance of counsel.

The Attorney General contends that the trial court properly allowed the prosecutor 

to cross-examine defendant’s character witnesses about the prior conviction, that any 

error in allowing the cross-examination was harmless, and that defendant has not shown 

ineffective assistance of counsel.

1. Background

As we set forth above, the prosecutor filed a pretrial motion in limine to admit 

evidence of defendant’s prior sexual assaults of three women under Evidence Code 

section 1108. Relevant here, the prosecutor stated that defendant was convicted of third 

degree sexual assault in Wisconsin in 1998, for raping a woman, K.A. The prosecutor 

reported that the complaint included the following allegations: In December 1997, K.A. 

reported that defendant, who was her boyfriend, told her after they had started to have 

intercourse that he wanted to whip her for 10 minutes. She said, “ ‘No.’ ” While she was

in a kneeling position, defendant held her head down and told her to enjoy it. He 

repeatedly hit her with a belt. She cried and told him “ ‘over and over again’ ” to stop. 

He kept moving her hands out of the way. After having sexual intercourse, defendant 

looked at her back, told her to keep it covered, and told her not to show anyone. The 

prosecutor argued that the conviction was admissible under Evidence Code section 1108 
47

regarding defendant’s propensity to commit sex offenses and was not inadmissible under 

Evidence Code section 352. The prosecutor filed a separate motion in limine to admit 

certified records of defendant’s 1998 conviction, specifically the complaint, information, 

and minute orders reflecting his plea and sentence.

Defendant filed a motion in limine to exclude the evidence pursuant to Evidence 

Code section 352 and his state and federal constitutional rights to due process and equal 

protection. To the extent the evidence was admitted under Evidence Code section 1108, 

defendant requested generally that the evidence be “sanitize[d].” (Bold omitted.) 

Further, to the extent his prior sexual offense against K.A. was admitted, defendant 

argued that the prosecutor should be required to produce a live witness to establish his 

commission of the sexual offense, not simply rely on a court record.

At the hearing on the motion, the prosecutor indicated that K.A. was unwilling to 

testify at trial and that the 1998 conviction would be established through certified court 

records from Wisconsin. Defense counsel indicated that to the extent the conviction was 

admitted into evidence, the parties agreed that only the record of conviction, specifically 

the abstract of judgment, would be admitted, “not any of the probable cause statements 

included in the [c]omplaint.”

The trial court ruled that defendant’s conviction involving K.A. would be 

admitted. The court stated, however, that the evidence would be limited to the abstract 

of judgment, and there would “not be any recited facts or information concerning the 

specifics of the conduct involved. That would be inflammatory; that would be 

prejudicial . . . .”

Later in the hearing on the parties’ other motions in limine, the trial court 

addressed the prosecutor’s motion to limit character testimony regarding defendant to 

reputation and opinion only and to preclude him from introducing specific instances of 

his good conduct. Defendant’s trial counsel indicated that the defense evidence would 

be limited to reputation and opinion. The court stated: “And that being the case, I just 
48

want to make sure that we anticipate or at least we are in agreement as to any . . .

questioning . . . from the part of the People on cross, because my experience has been 

normally when you get into opinion and reputation, inevitably the character witnesses 

learn something about the person of whom they’re speaking. And, you know, they may 

or may not be aware that he’s been convicted. And, frankly, I know that typically it’s . . . 

a line of questioning[,] ‘Well, did you know that he was convicted of sexual assault?’ 

And just so we know that that’s on the table. That’s not being excluded. And I don’t 

want any surprises when that’s -- or I don’t want any battles when that’s brought up 

because it’s fair game. [¶] I think when you put somebody’s reputation and character at 

issue and if the witnesses are testifying to it -- and it may well be that they just recently 

learned it, but that’s also a fair line of questioning. [¶] I only mention it because we need 

to anticipate that and make sure that it doesn’t create any evidentiary issues or delays 

about whether or not that’s proper subject of cross-examination. [¶] So, to sum it up, the 

Court will grant that motion in limine and limit character evidence to reputation and

opinion. And any testimony presented, the witnesses can be questioned about their 

knowledge or awareness of any prior convictions for the sexual assault conviction that 

we’ve been discussing.”

During the cross-examination of two defense character witnesses at trial, the 

prosecutor referred to the facts underlying defendant’s 1998 Wisconsin conviction in 

the following contexts.

a. Examination of next door neighbor Empleo and objection by defense 

counsel

Empleo, the next door neighbor at the RV park, testified on direct examination 

that defendant was a “very quiet, peaceful man” and that he was never “sexually 

inappropriate.” On cross-examination by the prosecutor, the neighbor confirmed that 

defendant was peaceful, nice, and not violent. When asked whether she knew that in 

1997 defendant had raped a woman, the neighbor responded that she had “heard of that.”
49

Defense counsel then objected, stating, “We dealt with this conviction in in 

limines.” The trial court initially sustained the objection and proceeded to have a sidebar 

with counsel. After the unreported discussion, the court went back on the record and 

stated, “So the Court will overrule the objection and allow counsel to pursue the line of 

questioning. And we’ve at sidebar discussed at length the parameters of the previous in 

limine motion and ruling.”

The prosecutor then proceeded to ask the neighbor on cross-examination, “So . . . 

you had described the defendant as a nonviolent, peaceful, nice person. So what I want 

to ask you is did you know that in 1997 he had nonconsensual, forcible sex with a 

woman? He told her he wanted to whip her for ten minutes. She said no. He held her 

head down and said to enjoy it. He continued to strike her. She asked to stop and tried to 

protect herself. He continued. She cried and asked him to please stop. He continued and 

had sex with her nonetheless. And then he told her, after he looked at her back, told her 

to keep it covered and not to show anyone. Were you aware of that?” The neighbor 

responded, “No, not really,” and indicated that it did not change her opinion about 

defendant. She explained that it was “the past,” and “[a]s long as it doesn’t affect [her]” 

she was “okay” with it. When asked whether the prosecutor’s description was “pretty 

sexually inappropriate,” the neighbor responded, “If it was to me, yes. If it was to 

somebody else, that’s them.”

On redirect examination, the neighbor indicated that she had no “way of knowing” 

whether the prosecutor’s description was “true or false.”

On recross-examination, the neighbor admitted that she knew defendant was 

convicted of sexual assault in 1998.

b. Examination of defendant’s friend Turner

Defendant’s friend and jujitsu training partner, Turner, testified on direct 

examination that defendant was not a violent person with respect to S. and K. and that 

defendant was not someone who was capable of sexual assault. The friend was not 
50

aware that defendant had been imprisoned years ago for sexual assault. “If evidence 

was supplied” that defendant used physical force to have sex with someone who did not 

consent, the friend testified that it would change his opinion about defendant.

On cross-examination, the friend confirmed that in his opinion, defendant was a 

nonviolent person outside the realm of sporting events and jujitsu and that defendant 

was not capable of sexual assault. The prosecutor then asked the friend whether he knew 

that: “In 1997 in Wisconsin [defendant] had sex with a woman against her will. He 

struck her. He said he wanted to whip her for ten minutes. She said no. He held her 

head down and said to enjoy it. He continued to strike her with a belt. Again she asked 

him to stop and tried to put her hands over her back, but he kept moving them. She cried 

and asked him to please stop, but he persisted. And after the sexual assault, he checked 

her back and told her to keep it covered and not to show anyone.” The friend responded 

that he was not aware of it. He agreed that it was “violent” if “that account [was] 

accurate.” The friend also did not know that in 1998, defendant was convicted of sexual 

assault in Wisconsin. The friend was further asked whether he knew that defendant had 

beat and sexually assaulted his first wife, L., in Wisconsin, and that he had beat, raped, 

and sexually assaulted his second wife, A. The friend indicated that he did not know, but 

he agreed that “those things [were] violent.” The friend indicated that the information 

revealed by the prosecutor would change the friend’s opinion about whether defendant 

was capable of sexual assault.

On redirect examination, the friend stated that he did not know whether any of 

“the horrible things that the [prosecutor] just read” were true.

c. Further discussion by the court and parties about character evidence 

and cross-examination of C.

Later in the trial, C., with whom defendant had an affair while he was still married 

to S., testified that defendant was sweet, thoughtful, gentle, nonviolent, and appropriate 

around her children. The prosecutor in cross-examination asked her about defendant’s 
51

conversations with his brother in which defendant made, for example, sexual comments 

about C.’s daughter. In response to objections by defense counsel, the trial court and 

counsel held a discussion outside the presence of the jury. The court explained that the 

prosecutor had indicated that he intended to ask C. about additional bad conduct by 

defendant and its effect on C.’s opinion of defendant’s character traits. The court 

indicated that defense counsel had objected based on Evidence Code section 352. The 

court explained that it had asked the prosecutor how many more incidents he intended to 

raise with C. because at some point it might become cumulative. After further discussion 

between the court and the prosecutor, the prosecutor stated that the defense had “got[ten] 

into character traits like honesty, how good of a person [defendant] is, how gentle he is, 

[and] how nonviolent he is . . . . [¶] And the Court warned of the risks of this. And I 

know that we’re all aware of the risks of opening the door with character evidence. [¶] 

So when you spend 20 minutes with the witness, not to mention all the other witnesses 

we’ve heard from today, painting a picture of the defendant as all these great things when 

it turns out he’s anything but – in fact, he is the opposite of these things -- to let a jury sit 

here and listen to this over and over, you -- we get a chance to show that that’s just not 

true. [¶] And all I’m trying to do is question these witnesses about whether they really 

know the defendant. And I’m trying to frame the questions in that fashion. [¶] . . . [¶] 

As the Court knows, once a witness describes a character trait and presents character 

evidence, the prosecution does get to cross-examine and ask ‘did you know’ or ‘had you 

heard things.’ And, as you can see, a lot of these witnesses are changing their opinion 

because there’s a good reason to change their opinion. [¶] This has all been discovered 

to the defense, and it was voluminous.”

Defense counsel stated the following in response, “As far as the witnesses today, 

I concede that [defendant’s friend Turner] and [the next door neighbor Empleo] were 

asked about the opinion and reputation that they had of [defendant]. I was very careful 

with the other witness -- and the People were able to ask about specific incidents of 
52

misconduct to ask them if it changed their opinion. They spoke of prior sexual assaults. 

They spoke of many allegations with both of those witnesses. [¶] The other witnesses –

[defendant’s friend Schilbe] and [the officer manager and the property manager for the 

RV park] -- I asked them specifically about watching interactions between [defendant]

and his wife, [defendant] and his daughter -- the two victims in this case. I stayed away 

from opinion/reputation evidence. I didn’t ask them what his nature was as to violence, 

as to sexual inappropriateness with those witnesses.” Defense counsel proceeded to 

discuss his examination of C., and the court issued its ruling regarding the scope of 

additional incidents that the prosecutor could use in cross-examining C.

After the close of evidence, the jury was instructed pursuant to CALCRIM 

No. 350 regarding character testimony as follows: “You have heard character testimony 

that the defendant is a polite, non-violent, sexually appropriate, nice person. [¶] 

Evidence of the defendant’s character for those traits can by itself create a reasonable 

doubt whether the defendant committed any or all of the crimes charged. However, 

evidence of the defendant’s good character may be countered by evidence of his bad 

character for the same trait. You must decide the meaning and importance of the

character evidence. [¶] You may take that testimony into consideration along with all 

the other evidence in deciding whether the People have proved that the defendant is 

guilty beyond a reasonable doubt.”

The jury was also instructed pursuant to CALCRIM No. 351 regarding the crossexamination of character witnesses as follows: “The attorney for the People was allowed 

to ask defendant’s character witnesses if they had heard or knew that the defendant had 

engaged in certain conduct. These ‘have you heard’ or ‘did you know’ questions and

their answers are not evidence that the defendant engaged in any such conduct. You may 

consider these questions and answers only to evaluate the meaning and importance of the 

character witness’s testimony.”
53

The jury was further instructed pursuant to CALCRIM No. 222 that “[n]othing 

that the attorneys say is evidence,” that “[t]heir questions are not evidence,” and that the 

jury should “not assume that something is true just because one of the attorneys asked a 

question that suggested it was true.”

2. Law

“In a criminal action, the defendant may introduce evidence of his or her own 

good character. [Citation.] Such evidence may be in the form of a witness’s own 

opinion, based on the witness’s perceptions, or in the form of the defendant’s reputation, 

based on what the witness has heard from others. [Citations.]” (People v. Hawara

(2021) 61 Cal.App.5th 704, 712-713 (Hawara).)

“Once a witness testifies, on direct examination, to the defendant’s good character, 

it is a common and accepted method of cross-examination to ask whether the witness is 

aware of instances of the defendant’s bad character. A variant of this is to ask, as here, 

whether the witness’s opinion would change if the witness became aware of instances of 

the defendant’s bad character.” (Hawara, supra, 61 Cal.App.5th at p. 713.) The witness 

may be asked about events or acts that have “ ‘indisputably’ occurred,” or that “ ‘the 

cross-examiner ha[s] in his [or her] possession information that reasonably leads him [or 

her] to believe that the acts of conduct by defendant have in fact been committed or the 

reports of their commission have been generally circulated. [Citation.]’ [Citations.]” 

(Id. at p. 713, fn. 8.)

Regarding the form of the question on cross-examination, it is “proper” to ask 

“ ‘if you heard’ ” “when the witness has testified to the defendant’s reputation[] based on 

what the witness has heard.” (Hawara, supra, 61 Cal.App.5th at p. 713, italics omitted.) 

Alternatively, “when the witness has testified to the witness’s own opinion, based on the 

witness’s perceptions, it is perfectly proper to ask, ‘if you knew.’ ” (Ibid., italics added.)

“ ‘The rationale for permitting the prosecution to cross-examine a defendant’s 

good-character witness as to whether or not he [or she] has heard rumors or reports of 
54

defendant’s arrest or conviction of other offenses inconsistent with the character trait 

testified to, is that such cross-examination tests and exposes weaknesses in the witness’ 

knowledge of the reputation. [Citations.]’ ” (People v. Hempstead (1983) 148 

Cal.App.3d 949, 954 (Hempstead).) Likewise, “[w]hen, as here, a witness is called to 

express an opinion as to the good character of the defendant, the prosecution must have

the opportunity to let the jury test the validity of the opinion or the weight to be given to 

it by asking whether the holder of the opinion has knowledge of events or acts . . . .” 

(Ibid.)

“If allowing these questions and answers would create a substantial danger of 

undue prejudice to the defendant, the trial judge has the discretion to preclude them under 

Evidence Code section 352.” (Hempstead, supra, 148 Cal.App.3d at p. 954.) We review 

a trial court’s rulings under Evidence Code section 352 for abuse of discretion. (Dworak, 

supra, 11 Cal.5th at pp. 899-900.)

“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears 

the burden of demonstrating, first, that counsel’s performance was deficient because it 

“fell below an objective standard of reasonableness [¶] . . . under prevailing professional 

norms.” [Citations.] . . . If a defendant meets the burden of establishing that counsel’s 

performance was deficient, he or she also must show that counsel’s deficiencies resulted 

in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]”

(People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)

3. Analysis

Defendant contends that although the trial court ruled during pretrial motions in 

limine that the underlying facts of his 1998 Wisconsin conviction would be excluded as 

inflammatory and prejudicial, the court at trial, after a defense objection and unreported 

sidebar conference, permitted the prosecutor to recite the facts on cross-examination of 

character witnesses Empleo (the next door neighbor) and Turner (defendant’s friend). 
55

Defendant argues that the latter ruling was erroneous because “nothing . . . had transpired 

during the trial [that] made these acts any less inflammatory and prejudicial than they 

were when the court made its in limine ruling.”

We disagree with defendant’s characterization of the record that “nothing . . . 

had transpired” during trial that could account for the trial court’s change in ruling, and 

we further determine that defendant has not met his burden on appeal to show that the 

court erred in its ruling at trial. The court’s pretrial ruling that the underlying facts of the 

conviction would be excluded as inflammatory and prejudicial under Evidence Code 

section 352 was made in the context of the parties’ competing motions regarding whether 

evidence of defendant’s prior sex offenses would be admitted under Evidence Code 

section 1108. Later, at that same pretrial hearing, the court cautioned that if defendant 

presented character witnesses, the prosecutor would be allowed to cross-examine the 

witnesses “about their knowledge or awareness of any prior convictions for the sexual 

assault conviction that we’ve been discussing.” At trial, defendant offered the testimony 

of several character witnesses, including next door neighbor Empleo and friend Turner. 

The court, as it had earlier indicated, allowed the prosecutor to cross-examine both 

witnesses about their knowledge of defendant’s prior sexual assault and resulting 

conviction. The underlying facts of defendant’s prior sexual assault conviction were 

thus raised by the prosecutor in connection with the cross-examination of defendant’s 

character witnesses, not in connection with the presentation of Evidence Code 

section 1108 evidence and not in violation of the court’s pretrial ruling excluding under 

Evidence Code section 352 certain Evidence Code section 1108 evidence.

Regarding defendant’s challenge to the trial court’s ruling allowing the underlying 

facts to be presented in the cross-examination of two of his character witnesses, 

defendant does not provide an adequate record for us to determine whether error 

occurred. When defendant’s trial counsel objected to the prosecutor’s recitation of facts 

on cross-examination, the basis for counsel’s objection was that “[w]e dealt with this 
56

conviction in in limines.” The court initially sustained the objection. After an unreported 

sidebar discussion in which “the parameters of the previous in limine motion and ruling” 

were “discussed at length,” the court overruled the objection. Based on this limited 

record, it is unclear whether defendant was objecting only on the grounds that the 

prosecutor had violated the earlier in limine ruling which, as we have explained, only 

addressed an Evidence Code section 352 objection in the context of admitting evidence 

under Evidence Code section 1108, or whether defendant was raising a new Evidence 

Code section 352 objection in the specific context of the cross-examination of a character 

witness. Without an adequate record concerning the sidebar discussion, defendant cannot 

meet his burden to show that the trial court abused its discretion in allowing the 

prosecutor’s cross-examination. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609

[appellant has burden to show error and “ ‘all presumptions in favor of the trial court’s 

action will be made by the appellate court’ ”].) We therefore turn to the question of 

whether defendant’s trial counsel rendered ineffective assistance of counsel.

The next door neighbor Empleo testified to defendant’s good character with 

respect to being peaceful, nonviolent, and never sexually inappropriate. On crossexamination, when asked whether she knew that defendant had raped a woman in 

Wisconsin in 1997, Empleo indicated that she had “heard of that” yet she apparently 

maintained the same opinion that defendant was peaceful, nonviolent, and never sexually 

inappropriate. Defendant’s other character witness, his friend Turner, likewise opined 

that defendant was not a violent person or someone who was capable of sexual assault. 

On this record, the trial court could have reasonably determined that the underlying facts 

concerning the 1997 Wisconsin incident, including that defendant repeatedly whipped the 

victim over her cries to stop and that he then had sex with her, were relevant and 

probative for testing Empleo’s and Turner’s opinions that defendant was peaceful, 

nonviolent, and never sexually inappropriate. (See People v. Clair (1992) 2 Cal.4th 629, 

684 [cross-examination “must be ‘specific’ and must ‘relate directly to a particular 
57

incident or character trait defendant offers in his own behalf’ ”].) The questioning by 

the prosecutor “could reasonably have ‘let the jury test the validity of the opinion or the 

weight to be given it’ [citation]:” the information in the prosecutor’s question “[could] 

certainly be judged inconsistent with” peacefulness, nonviolence, and sexually 

appropriateness as opined by Empleo and Turner. (Id. at pp. 684-685.) Further, in view 

of the character traits at issue – peaceful, nonviolent, and never sexually inappropriate –

the court could have reasonably determined that the prosecutor’s questions on crossexamination were not substantially more prejudicial than probative. On this record, 

defendant fails to establish that (1) his trial counsel was ineffective for failing to 

specifically object on Evidence Code section 352 grounds to the prosecutor’s crossexamination of character witnesses Empleo and Turner, and (2) that there is a reasonable 

probability that, but for trial counsel’s failure to object, the result of the proceeding would 

have been different. (Lopez, supra, 42 Cal.4th at p. 966.) Further, in view of defendant’s 

failure to establish that the trial court erred under Evidence Code section 352 in allowing 

the prosecutor to cross-examine defendant’s character witnesses about the facts 

underlying the Wisconsin conviction, defendant also fails to establish a violation of his 

rights to due process and a fair trial.

E. Cumulative Error

Defendant contends that the combined effect of the individual errors during trial 

was prejudicial. As we have found no individual error, we reject defendant’s cumulative 

error argument.

F. Custody Credit

Defendant contends that the abstract of judgment erroneously indicates actual 

custody credit of 1,093 days. He argues that he was in county jail from December 3, 

2017, through the date of sentencing on December 3, 2020, and that he is therefore 

entitled to actual credit of 1,097 days. With the addition of conduct credit of 164 days, 

defendant contends that his total presentence custody credits should be 1,261 days. 
58

The Attorney General contends that defendant fails to provide a record citation in his 

opening brief on appeal that shows the date he was initially taken into custody. In reply, 

defendant cites to the probation report.

The probation report reflects that defendant was arrested on December 3, 2017. 

The probation report indicates that he remained in custody through June 19, 2020, the 

date of the probation report, for 930 actual days.

The sentencing hearing took place on December 3, 2020. Defendant was in 

custody at that time. The trial court calculated defendant’s actual time in custody as 

1,083 days. However, defendant’s trial counsel stated that he calculated 1,093 actual 

days based on “the day [defendant] was arrested to today.” The prosecutor “defer[red]” 

to defense counsel’s calculation.

Based on the day defendant was arrested, December 3, 2017, through day of 

sentencing, December 3, 2020, defendant is entitled to 1,097 actual days. (See People v. 

Valdes (2020) 53 Cal.App.5th 953, 955 [for a defendant who is continuously in custody, 

calculation of custody credit includes the day of arrest and the day of sentencing].) With 

conduct credit of 164 days (see § 2933.1, subds. (a) & (c); People v. Ramos (1996) 

50 Cal.App.4th 810, 815-816), defendant’s total custody credits are 1,261 days. We will 

order the judgment modified accordingly.

G. Criminal Justice Administration Fee

At the sentencing hearing on December 3, 2020, the trial court ordered defendant 

to pay a criminal justice administration fee of $129.75 to the City of Morgan Hill. 

Although the court did not expressly state the statutory basis for the fee, the probation 

report recommended that the amount be imposed pursuant to former Government Code 

sections 29550, 29550.1, and 29550.2.

On appeal, defendant contends that the criminal justice administration fee is no 

longer collectible based on Government Code 6111, subdivision (a), and that any 
59

outstanding balance must be vacated. The Attorney General agrees. We find the 

Attorney General’s concession appropriate.

Government Code section 6111 states: “On and after July 1, 2021, the unpaid 

balance of any court-imposed costs pursuant to . . . subdivision (c) or (f) of 

Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on 

June 30, 2021, is unenforceable and uncollectible and any portion of a judgment 

imposing those costs shall be vacated.” (Id., subd. (a).) In other words, “by its plain 

terms,” Government Code section 6111 “make[s] any unpaid portion of the identified 

assessments, as they existed on June 30, 2021, ‘unenforceable and uncollectible’ as of 

July 1, 2021. [Citation.]” (People v. Greeley (2021) 70 Cal.App.5th 609, 626, italics 

added.) Further, “the statute also mandates that any portion of a judgment imposing 

those fees be vacated. Accordingly, based on the plain language of the statute, the 

unpaid balance of the . . . criminal justice administration fee[] must be vacated.” (Id. at 

pp. 626-627, italics & fns. omitted.).

IV. DISPOSITION

The judgment is modified to reflect 1,097 actual days and 164 days of conduct 

credit (Pen. Code, § 2933.1), for a total of 1,261 days of presentence custody credits.

The portion of the $129.75 criminal justice administration fee that remained 

unpaid as of July 1, 2021, is vacated. The clerk of the superior court is directed to amend 

the abstract of judgment to reflect the vacatur of any balance of the criminal justice 

administration fee that remained unpaid as of July 1, 2021.

As amended, the judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

DANNER, J.

WILSON, J.

People v. Kitzman

H048726