1

Filed 8/6/21 P. v. Tidwell CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROY LINN TIDWELL,

Defendant and Appellant.

 A158243

 (Napa County

 Super. Ct. No. 18CR003274)

This is an appeal from final judgment after a jury convicted defendant 

Roy Linn Tidwell of one count of forcible lewd conduct upon a child under 

age 14. Defendant raises three instructional challenges on appeal. These 

relate to: (1) defense counsel’s failure to request a limiting instruction 

regarding the proper use of fresh complaint testimony; (2) the propriety of 

giving CALCRIM No. 361, which permitted the jury to draw an adverse 

inference from defendant’s failure to explain or deny incriminating evidence; 

and (3) the constitutionality of CALCRIM No. 1193, which permitted the jury 

to consider expert testimony on child sexual abuse accommodation syndrome. 

We affirm.
2

FACTUAL AND PROCEDURAL BACKGROUND

On December 7, 2018, an information was filed charging defendant 

with one count of forcible lewd act upon K.D.,

1 a child under age 14, in 

violation of Penal Code section 288, subdivision (b)(1).

2 The information 

further alleged that defendant committed the crime through force or fear 

(§ 1203.066, subd. (a)(1)) and that the crime involved substantial sexual 

conduct (§ 1203.066, subd. (a)(8)).

I. Prosecution’s Case.

A. K.D.

K.D., 19 years old at trial, was raised by her mother, T.D., in a small 

house in American Canyon. When K.D. was about four years old, T.D. began 

dating defendant, and a few years later he moved into their house.

When K.D. was about six years old, defendant began exposing his penis 

to her. This occurred about 10 separate times, when T.D. was elsewhere 

inside the house. K.D. did not disclose defendant’s indecent exposures 

because she feared him.

On November 15, 2007, when K.D. was about seven years old, she 

spent the evening alone in the house with defendant while T.D. was at the 

hospital with her ailing grandfather. K.D. was in her room, playing with 

dolls, when defendant entered and led her into the other bedroom. He threw 

K.D. onto the bed and rubbed her vagina over her pajamas. While K.D. 

struggled, defendant, smelling of alcohol, held her down and kissed her on 

the mouth. He then put his hand under her pajamas, but over her 

underwear, and rubbed her vagina. K.D. tried to escape, but defendant 

1 To protect this child victim’s privacy, we do not refer to her name. 

(Cal. Rules of Court, rule 8.90.)

2 Unless otherwise stated, all statutory citations are to the Penal Code.
3

grabbed her by the hair, pushed her back on the bed and continued rubbing 

her vagina. The assault ended when T.D. telephoned to report that her 

grandfather had died. K.D. did not tell T.D. that defendant molested her 

because she was scared and she knew T.D. loved defendant.

K.D. subsequently suffered a series of panic attacks due to defendant’s 

sexual assault. While defendant never directly acknowledged the incident, 

he often inexplicably apologized to K.D. He continued to live with K.D. and 

T.D. on and off until 2015.

In 2016, K.D. finally disclosed defendant’s crime, telling her cousin, 

R.D., some of the details. Later that same year, K.D. disclosed the crime to 

her sisters, A.H. and L.M. Then, in 2017, she disclosed the crime to T.D., 

reserving the details for a subsequent letter written to her mother on 

August 13, 2017. This letter stated, in relevant part:

“I know you want to know what happened, so I’m going to tell you. . . .

“I was playing in my room and I remember him coming into my room 

and saying something to me, but I cant remember what was said. A lot of the 

event I cant remember, I only remember the major parts.

“The next thing I remember was him throwing me on your bed and he 

started touching my vagina. I tried getting up to go back to my room, but 

thats when he pushed me back down a stuck his tongue down my throat. It 

was disgusting. The smell of alcohol and cigarettes was overwhelming and I 

felt like I couldnt breathe. I remember him continuing to rub my vagina on 

top of my underwear and me crying and praying for it to end.
4

“The next thing I remember was the phone ringing and talking to you 

and finding out that great grandpa passed away. Thats all I remember.” 

(Sic.)

3

B. T.D.

T.D. testified about an incident when K.D. was eight or nine years old. 

One night, T.D. heard defendant get out of bed. A few minutes later, T.D. 

thought defendant had called to her, so she left her bed and went into the 

adjacent hallway. There, T.D. saw defendant with his hands in front of his 

sweat pants; K.D. was standing nearby, looking “petrified” and “hugging the 

wall” as if trying to make herself invisible. T.D. grabbed K.D. and took her 

outside to the porch. T.D. asked K.D. what happened, and K.D. “just kept 

saying” that she “didn’t see anything.”

T.D. sent K.D. to her grandfather’s house. When she returned, T.D. 

asked defendant what happened. Initially, defendant stated that nothing 

happened, but he eventually admitted that he exposed his penis in K.D.’s 

presence. He insisted that he believed he was exposing himself to T.D., not 

K.D. Confused, T.D. ordered defendant to move out.

About a year later, defendant showed up at T.D.’s house and needed a 

place to stay. He apologized for the late-night incident, insisting he was 

“drunk” and “didn’t mean it” and promising it “would never happen again.” 

Because she still loved defendant, T.D. allowed him to move back in.

T.D. also testified about the charged incident, which occurred on 

November 15, 2007, the day her grandfather died. T.D. went to the hospital 

to visit him; after his passing, she called K.D., who was at home with 

defendant. When T.D. returned later that evening, K.D. was asleep in her 

3 K.D. testified at trial she only remembered that defendant kissed her 

and could not recall whether he stuck his tongue down her throat.
5

bedroom and defendant was outside, drinking. T.D. observed nothing

unusual.

T.D. and defendant permanently separated in or around October 2016, 

when a serious argument culminated in the police removing defendant from 

her home. Several months later, in March 2017, K.D. finally told T.D. about 

the November 2007 sexual assault. K.D., crying and upset, said only that 

defendant “molested me.” The next day, T.D. took K.D. to see a counselor, 

who told them to contact the Child Protective Services division of the State

Department of Social Services. T.D. and K.D. did so and later cooperated 

with the police in their investigation of defendant. T.D. also gave the police 

K.D.’s August 13, 2017 letter explaining in more detail defendant’s assault.

On cross-examination, T.D. acknowledged that she told a police 

detective that K.D. always seemed happier when defendant was present in 

the house. T.D. also testified that K.D. may have told her, when she first 

disclosed defendant’s sexual assault, that he threw her on the bed and stuck 

his tongue down her throat.

C. Fresh Complaint Witnesses.

Three of K.D.’s relatives testified that K.D. disclosed defendant’s sexual 

assault on separate occasions long before trial.

R.D., K.D.’s cousin, testified that K.D. disclosed defendant’s sexual 

assault on two occasions, once in 2015 and again in 2018. The first time, 

K.D. told R.D. that defendant exposed himself to her when she was six years 

old and “molested” her when she was seven years old. In 2018, K.D. gave 

R.D. a more detailed and emotional account of the event, disclosing that 

while T.D. was away, defendant took her into T.D.’s bedroom, placed her on 

the bed, removed her pants, and touched her genitals.
6

L.M., K.D.’s stepsister4 and very close friend, testified that during her 

Thanksgiving 2016 visit to K.D. and T.D.’s house, K.D. told L.M. and a few

other relatives that defendant sexually assaulted her in T.D.’s bedroom while

T.D. was visiting K.D.’s great-grandfather in the hospital. When disclosing 

this information, K.D. was distraught and appeared to be having a panic 

attack. L.M. instructed K.D. to tell her mother and warned that if she did 

not do so within three months, L.M. would tell her mother.

A.H., K.D.’s older sister, testified that she was also present on 

Thanksgiving 2016 when K.D. emotionally disclosed defendant’s sexual 

assault. A.H. also testified that she previously learned from her mother that

defendant exposed himself to K.D. on two occasions.

D. Expert Testimony on CSAAS.5

Blake Carmichael, Ph.D., a psychologist at the UC Davis Children’s 

Hospital, gave expert testimony regarding CSAAS, explaining that its

purpose is to dispel certain common “myths and misconceptions” about child 

sexual abuse victims and their apparent reluctance to disclose their abuse. 

Dr. Carmichael explained each of CSAAS’s five components: secrecy,

helplessness, entrapment and accommodation, delayed and unconvincing 

disclosure, and retraction and recantation. Briefly stated, this syndrome is a 

consequence of the fact that the sexual abuser of a child is often an older 

person with whom the child has an ongoing relationship. The abuser often 

manipulates the child by, among other things, threatening him or her 

emotionally or physically in order to maintain secrecy. The child victim, in 

turn, feels afraid and helpless and, thus, will often delay reporting the sexual 

4 T.D. is L.M.’s guardian. However, K.D. and L.M. are not actual blood 

relatives.

5 “CSAAS” refers to child sexual abuse accommodation syndrome.
7

abuse, give vague or incomplete descriptions, report the abuse over time in a 

piecemeal fashion, and/or recant his or her disclosures.

Dr. Carmichael had no opinion as to whether K.D. was sexually abused

and, in fact, did not know any of the specifics of this case.

II. Defense Case.

Defendant adamantly denied molesting or exposing his penis to K.D. 

Defendant described himself as the victim in this case, of a “false allegation” 

and a “besmirched reputation.” Nonetheless, as discussed in greater detail 

post (see discussion, part II), defendant admitted “it’s possible” that he told 

Detective Perry when interviewed that “maybe you did touch the victim in 

the wrong place while you were playing in the backyard.” Further, when 

asked whether he told Detective Perry “something about pulling the front 

waistband of your sweats away from your body sort of in her presence,” 

defendant responded, “I was under pressure then. I can’t answer that 

question, honestly.”

Defendant acknowledged his conviction in 2008 for an incident of 

domestic violence against T.D. and his “issue” with drinking that led to “a few 

DUIs.”6

III. Jury Verdict, Sentencing and Appeal.

On June 12, 2019, the jury found defendant guilty as charged and 

found true both enhancements. Defendant, sentenced to the midterm of eight 

years, has timely appealed.

DISCUSSION

Defendant raises three instructional challenges on appeal: (1) defense 

counsel provided ineffective legal assistance by failing to request an 

6 “DUI” is shorthand for the offense of driving under the influence of 

alcohol or drugs. (See Veh. Code, § 23152.)
8

instruction limiting the purposes for which the jury could consider “fresh 

complaint” evidence; (2) instructing the jury on CALCRIM No. 361 was 

prejudicial error because it lacked a factual basis in the record; and 

(3) CALCRIM No. 1193, as written, violates the constitutional guarantee of 

due process by reducing the prosecution’s burden of proof. We address each 

argument in turn.

I. Ineffective Assistance: Failing to Request a Limiting Instruction 

Based on the Fresh Complaint Doctrine.

Defendant contends his constitutional right to effective assistance of

counsel was violated when his trial counsel failed to request an instruction 

limiting the purposes for which the jury could consider K.D.’s statements to 

her relatives (T.D., R.D., A.H., and L.M.) disclosing defendant’s sexual 

assault.

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

must show counsel’s performance fell below a standard of reasonable 

competence, and that prejudice resulted.” (People v. Anderson (2001) 25 

Cal.4th 543, 569.) “Prejudice” in this context occurs only where defense 

counsel’s deficient performance “ ‘so undermined the proper functioning of the 

adversarial process’ ” that the outcome cannot be deemed reliable. (People v. 

Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 

U.S. 668, 686 (Strickland).)

In applying this standard (hereinafter, Strickland standard), the 

defendant must overcome a strong presumption that counsel’s conduct was 

sound legal strategy or otherwise within the wide range of reasonable 

professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; 

People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) “Defendant’s burden is 

difficult to carry on direct appeal, as we have observed: ‘ “Reviewing courts 

will reverse convictions [on direct appeal] on the ground of inadequate 
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counsel only if the record on appeal affirmatively discloses that counsel had 

no rational tactical purpose for [his or her] act or omission.” ’ [Citation.]” 

(People v. Lucas (1995) 12 Cal.4th 415, 437.)

If “defendant has failed to show that the challenged actions of counsel 

were prejudicial, a reviewing court may reject the claim on that ground 

without determining whether counsel’s performance was deficient.” (People 

v. Kipp, supra, 18 Cal.4th at p. 366.)

Relevant here, the fresh complaint doctrine provides that “proof of an 

extrajudicial complaint, made by the victim of a sexual offense, disclosing the 

alleged assault, may be admissible for a limited, nonhearsay purpose—

namely, to establish the fact of, and the circumstances surrounding, the 

victim’s disclosure of the assault to others—whenever the fact that the 

disclosure was made and the circumstances under which it was made are 

relevant to the trier of fact’s determination as to whether the offense 

occurred.” (People v. Brown (1994) 8 Cal.4th 746, 749–750 (Brown).) Thus, 

the jury may consider this evidence “for the purpose of corroborating the 

victim’s testimony, but not to prove the occurrence of the crime.” (People v. 

Ramirez (2006) 143 Cal.App.4th 1512, 1522.) “So long as the evidence that is 

admitted is carefully limited to the fact that a complaint was made, and to 

the circumstances surrounding the making of the complaint, thereby 

eliminating or at least minimizing the risk that the jury will rely upon the 

evidence for an impermissible hearsay purpose, admission of such relevant 

evidence should assist in enlightening the jury without improperly 

prejudicing the defendant.” (Brown, supra, at p. 762.)

Here, the record is silent as to why defense counsel failed to request a 

limiting instruction clarifying that the fresh complaint testimony offered by 

K.D.’s relatives could be considered only to establish the fact that K.D. 
10

disclosed the alleged crime and the circumstances of her disclosure, and not 

to prove the crime occurred. This silent record generally forecloses an 

ineffective assistance claim on direct appeal. (People v. Lucas, supra, 12 

Cal.4th at p. 437.) However, defendant argues that his claim should survive 

here because there can be no conceivable tactical justification for his counsel’s 

failure.

Defendant’s argument bears some weight. The California Supreme 

Court has made clear: “The specific relevance of the extrajudicial-complaint 

evidence . . . must be shown in every case.” (Brown, supra, 8 Cal.4th at p. 

763.) However, as mentioned, the Strickland standard has two prongs—

deficient performance by counsel and prejudice. (People v. Kipp, supra, 18 

Cal.4th at p. 366.) On this record, even assuming deficient performance, we 

would find no prejudice.

First, notwithstanding the absence of a limiting instruction, in each 

instance K.D.’s relatives provided brief testimony that did no more than state 

the fact of her disclosure of the alleged crime and the basic circumstances 

surrounding her disclosure.7

Moreover, defendant himself relied on these disclosures and the fact 

that K.D. made them so many years after he allegedly assaulted her to label 

her claim false. As such, the fresh complaint (or, rather, not-so-fresh 

complaint) evidence in part supported his primary defense. (See Brown, 

supra, 8 Cal.4th at p. 762 [“in many cases it will be the defendant who 

believes that the particular circumstances under which the victim reported 

the alleged offense—either promptly after the offense is alleged to have 

7 Defense counsel cross-examined A.H. in more detail regarding the fact 

that she told a detective that she knew from her mother of two incidents of 

defendant’s exposing himself to K.D.
11

occurred or at some later date—cast doubt upon the veracity of the victim’s 

charge, and the defendant will be entitled to introduce and rely upon such 

evidence in seeking to undermine the prosecution’s case”].)

Finally, there was significant evidence corroborating K.D.’s claim and 

little evidence undermining it. K.D. provided strong, detailed and consistent 

testimony regarding the sexual assault that was not seriously impeached. 

T.D. corroborated K.D.’s statements about the evening of the crime, including 

the fact that T.D. was at the hospital during her grandfather’s passing. T.D. 

also described in detail another incident wherein she found defendant, in the 

middle of the night, in the hallway with his hands in front of his sweat pants 

while K.D. cowered in fear by the wall. Defendant unconvincingly explained 

that he thought he was exposing himself to T.D., and T.D. ordered him to 

leave the house. Defendant returned to the house about a year later, only 

after telling T.D. that he “didn’t mean to do it” and that “it would never 

happen again.”

Given the weight of incriminating evidence and the limited nature of 

the fresh complaint testimony, we conclude any error in the failure to seek a

limiting instruction as to such testimony was harmless. (See Strickland, 

supra, 466 U.S. at p. 686.)

II. Instruction on CALCRIM No. 361.

Defendant contends the trial court prejudicially erred by instructing

the jury per CALCRIM No. 361: “If the defendant failed in his testimony to 

explain or deny evidence against him, and if he could reasonably be expected 

to have done so based on what he knew, you may consider his failure to 

explain or deny in evaluating that evidence. Any such failure is not enough 

by itself to prove guilt. The People must still prove the defendant guilty 
12

beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is 

up to you to decide the meaning and importance of that failure.”

“A party is entitled to a requested instruction if it is supported by 

substantial evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose if

it is ‘sufficient to “deserve consideration by the jury,” that is, evidence that a

reasonable jury could find persuasive.’ [Citation.]” (People v. Ross (2007) 155

Cal.App.4th 1033, 1049–1050.) We review a claim of instructional error

de novo, considering the instruction in the context of the entire jury charge. 

(People v. Posey (2004) 32 Cal.4th 193, 218.)

CALCRIM No. 361 is based on Evidence Code section 413, which 

provides: “In determining what inferences to draw from the evidence or facts 

in the case against a party, the trier of fact may consider, among other 

things, the party’s failure to explain or to deny by his testimony such 

evidence or facts in the case against him, or his willful suppression of 

evidence relating thereto, if such be the case.”

As defendant notes, however, CALCRIM No. 361 “applies only when a 

defendant completely fails to explain or deny incriminating evidence, or 

claims to lack knowledge and it appears from the evidence that the defendant 

could reasonably be expected to have that knowledge.” (People v. Cortez

(2016) 63 Cal.4th 101, 118; accord, People v. Grandberry (2019) 35 

Cal.App.5th 599, 606 [“ ‘It is an elementary principle of law that before a jury 

can be instructed that it may draw a particular inference, evidence must 

appear in the record which, if believed by the jury, will support the suggested 

inference’ ”], quoting People v. Saddler (1979) 24 Cal.3d 671, 681 (Saddler).) 

Defendant contends this standard is not met here because he did not fail in 

testimony to explain or deny any evidence against him.
13

We conclude that substantial evidence supported the trial court’s giving 

of CALCRIM No. 361. The record shows that defendant failed to explain or 

deny an incriminating fact that was peculiarly within his knowledge to 

address: Specifically, defendant adamantly denied exposing his penis to K.D. 

Yet, on cross-examination, defendant acknowledged that it was “possible” 

that T.D. confronted him about exposing himself to K.D. and that he 

admitted doing so. He also responded, “It’s possible,” when asked whether he 

told Detective Joseph Perry that “maybe you did touch [K.D.] in the wrong 

place while you were playing in the backyard; do you recall that?” Then, 

when asked whether he touched K.D.’s genitals on this occasion, defendant 

responded that he “really doubt[ed] it” but that he “guess[ed]” it was true 

that he told Detective Perry he “possib[ly]” touched K.D.’s genitals. This

colloquy continued:

“Q. . . . [¶] And you initially told Detective Perry that you did not 

expose yourself to [K.D.], but later you sort of explained something about 

pulling the front waistband of your sweats away from your body sort of in her 

presence; do you recall that?

“A. I can’t remember.

“Q. You can’t remember telling him that or you can’t remember doing 

that?

“A. I can’t remember.

“Q. Both things?

“A. I can’t remember doing it.”

Then, after some effort by the prosecutor to phrase a proper question, 

the colloquy continued:

“Q. Back when you talked to Detective Perry did you have a memory 

of pulling—
14

“A. I was under pressure then. I can’t answer that question, 

honestly.

“Q. But it was something that you said you did?

“A. Like I said, I was under pressure.

“Q. And you said that it was the stupidest thing that you had ever 

done and you don’t even know why you did it. Do you recall that?

“A. It’s possible.”

On this record, CALCRIM No. 361 was appropriate. (See People v. 

Cortez, supra, 63 Cal.4th at p. 121 [where a defendant claims he or she “did 

not know” information that he or she “could reasonably be expected to know” 

from the evidence, the instruction is appropriate].) Defendant’s nonanswer 

when asked to explain why he previously told a law enforcement agent that 

he “possibly” sexually abused K.D. while he unequivocally denied any such 

abuse at trial is significant. Indeed, defendant went so far as to admit it was 

“possible” that he told the detective this incident was the “stupidest thing” he 

had ever done—yet he was unsure whether this “thing” happened. The jury 

was entitled to weigh this testimony against defendant.

Defendant argues that the instruction should not have been given 

because the two bases offered for giving it—his alleged statements to 

Detective Perry regarding a backyard “horseplay” incident and a possible act 

of indecent exposure—were not evidence against him because Detective Perry 

did not testify and his interview of defendant was not introduced at trial. 

However, notwithstanding Detective Perry’s absence from trial, defendant

provided evidence in the form of his own testimony regarding his interview 

by the detective. Moreover, his own authority (People v. Grandberry, supra, 

35 Cal.App.5th at pp. 608–609) makes clear that CALCRIM No. 361 is 

appropriate where the defendant fails to explain or deny any fact of evidence
15

that was within the scope of relevant cross-examination—not just those facts

actually adduced at trial.

Finally, even if we were to reach the opposite conclusion regarding the 

applicability of CALCRIM No. 361, we would find no prejudice here. 

“[G]iving an irrelevant or inapplicable instruction is generally ‘ “only a 

technical error which does not constitute ground for reversal.” ’ ” (People v. 

Cross (2008) 45 Cal.4th 58, 67.) CALCRIM No. 361 permitted, but did not 

require, the jury to draw an adverse inference from defendant’s testimony, 

and only then if the jury first made the required findings that he failed to 

explain or deny certain evidence and that he could have reasonably been 

expected to provide such explanation or denial. In addition, the instruction 

explicitly stated that defendant’s failure to explain or deny such evidence was 

not sufficient by itself to establish his guilt.

Moreover, in addition to the standard instructions on the presumption 

of innocence and the prosecutor’s burden to prove guilt beyond a reasonable 

doubt, the trial court instructed the jury under CALCRIM No. 200, “Some of 

these instructions may not apply, depending on your findings about the facts 

of the case. . . . After you have decided what the facts are, follow the 

instructions that do apply to the facts as you find them.” We presume the

jury followed these instructions. (People v. Fuiava (2012) 53 Cal.4th 622, 

669.) Thus, even assuming for the sake of argument that defendant is correct

that CALCRIM No. 361 was not applicable here, the jury, following

CALCRIM No. 200, would have disregarded it.

Last, defendant labels this case a credibility contest between K.D. and

himself. Yet the fact remains that K.D. gave a detailed and credible

description of defendant’s crime, which was consistent with the descriptions

she gave earlier to her mother and her close relatives. At trial, despite
16

defendant’s efforts, K.D.’s credibility was never seriously undermined. 

Moreover, her mother gave corroborating testimony regarding her absence on

the night K.D. was molested, confirming she was at the hospital with her

dying grandfather. Under these circumstances and in light of the careful and

complete set of instructions read to the jury, we find no reasonable

probability that but for the giving of CALCRIM No. 361 defendant would

have received a more favorable result. (See Saddler, supra, 24 Cal.3d at p.

684; People v. Covarrubias (2016) 1 Cal.5th 838, 934.)

III. Instruction on CALCRIM No. 1193.

Defendant contends that CALCRIM No. 1193, as written, violates the 

constitutional guarantee of due process by reducing the prosecution’s burden 

of proof.8 CALCRIM No. 1193, as read to the jury, provided: “You have 

heard testimony from Dr. Blake Carmichael regarding [CSAAS]. 

Dr. Carmichael’s testimony about [CSAAS] is not evidence that the defendant 

committed any of the crimes charged against him. You may consider this 

evidence only in deciding whether or not [K.D.’s] conduct was not inconsistent 

with the conduct of someone who has been molested and in evaluating the 

believability of his [sic] testimony.”

As reflected in this instruction, “CSAAS expert testimony is not 

admissible to prove the complaining witness has in fact been sexually abused. 

(People v. McAlpin (1991) 53 Cal.3d 1289, 1300 [283 Cal.Rptr. 382, 812 P.2d 

563].) It is admissible to rehabilitate such witness’s credibility when the 

8 We reject the People’s argument that defendant forfeited the right to 

challenge CALCRIM No. 1193 by failing to object to it below. “Generally 

speaking, a ‘failure to object does not waive an instructional error on appeal if 

the instruction was an incorrect statement of law or the defendant’s 

substantial rights were affected.’ ” (People v. Grandberry, supra, 35 

Cal.App.5th at p. 604.)
17

defendant suggests that the child’s conduct after the incident is inconsistent 

with her testimony claiming molestation. (Ibid.) Such testimony is needed to 

disabuse jurors of commonly held misconceptions of child sexual abuse and 

the abused child’s seemingly self-impeaching behavior. (Id. at p. 1301.)” 

(People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales).)

Defendant contends CALCRIM No. 1193 violates due process because it 

contains “self-contradictory language . . . [that] set[s] the jurors on the 

impossible task of finding the complainant believable while at the same time 

remaining open to a doubt that the molestation in this case actually 

occurred.”

Initially, we agree with defendant that because juries may assign

undue weight to an expert’s opinion, “special care must be taken to 

insure [sic] the jury understands its duty to independently assess the expert 

opinion along with and in light of all other relevant evidence.” (People v. 

Housely (1992) 6 Cal.App.4th 947, 958.) However, the language of CALCRIM 

No. 1193 itself provides necessary protection against juror misuse of CSAAS 

testimony. As set forth ante, CALCRIM No. 1193 contained two restrictions. 

First, it forbade the use of CSAAS testimony as “evidence that the defendant 

committed any of the crimes charged against him.” Second, it restricted the 

use of CSAAS testimony to “deciding whether or not [K.D.’s] conduct was not 

inconsistent with the conduct of someone who has been molested and in 

evaluating the believability of his [sic] testimony.”

Thus, defendant is wrong to claim CALCRIM No. 1193 “fails to convey 

to the jurors the simple message that CSAAS testimony is meant only to 

dispel the myth that delayed disclosure is per se evidence of untruthfulness, 

and nothing more.” To the contrary, this message is embedded in the 

instruction’s very language: Otherwise stated, “A reasonable juror would 
18

understand CALCRIM No. 1193 to mean that the jury can use [CSAAS] 

testimony to conclude that [the complainant’s] behavior does not mean she 

lied when she said she was abused. The jury also would understand it cannot 

use [this] testimony to conclude [the complainant] was, in fact, molested. The 

CSAAS evidence simply neutralizes the victim’s apparently self-impeaching 

behavior. Thus, under CALCRIM No. 1193, a juror who believes [the 

expert’s] testimony will find both that [the complainant’s] apparently selfimpeaching behavior does not affect her believability one way or the other, 

and that the CSAAS evidence does not show she had been molested. There is 

no conflict in the instruction.” (Gonzales, supra, 16 Cal.App.5th at p. 504; 

accord, People v. Munch (2020) 52 Cal.App.5th 464, 474.)

Indeed, defendant theorized at trial, and continues to argue on appeal,

that K.D. lacks credibility and may have a “false memory” of the single 

charged act of abuse, noting both the length of time she delayed reporting it

and the fact that, afterward, she continued to live in the same house with 

him off and on for several years. As courts have recognized, this is just the 

sort of case where CSAAS testimony proves helpful, as it tends to show “such 

delayed reporting is not inconsistent with the secretive environment often 

created by an abuser who occupies a position of trust.” (People v. Bowker

(1988) 203 Cal.App.3d 385, 393–394 [warning that CSAAS testimony should 

“be targeted to a specific ‘myth’ or ‘misconception’ suggested by the 

evidence”].) Moreover, Dr. Carmichael was not asked to offer an opinion on 

whether K.D.’s behavior was typical of abuse victims, “an issue closely 

related to the ultimate question of whether abuse actually occurred.” (People 

v. Housely, supra, 6 Cal.App.4th at p. 958; cf. People v. Bowker, supra, 203 

Cal.App.3d at pp. 394–395 [error in admitting CSAAS testimony where the 

expert testified to more than the “popular myths” debunked by CSAAS and 
19

the jury was not instructed that his testimony was admissible solely for the 

purpose of showing that the victim’s reactions were not inconsistent with 

having been molested].) Rather, Dr. Carmichael expressly warned that 

CSAAS does not provide a “tool checklist that will say a kid was abused,” 

adding “that’s why again we have the legal process.”

Finally, defendant focuses on CALCRIM No. 1193’s language that 

CSAAS testimony is not evidence that he committed “the crimes charged 

against him.” According to defendant, because this language does not 

preclude the use of CSAAS testimony as proof he committed any of the

uncharged offenses (including the 10 or so times he allegedly exposed himself 

to K.D.), the jury could have inferred based on an uncharged offense that he 

was inclined to commit sexual crimes. This, defendant argues, lessened the 

prosecution’s burden of proving him guilty on the charged offense beyond a 

reasonable doubt.

An identical argument was addressed and rejected in Gonzales. 

Considering the language of CALCRIM No. 1193 as a whole, the Gonzales

court noted that “the only use of evidence of the uncharged offenses is as 

evidence Gonzales committed the charged offenses. Thus, use of the CSAAS 

testimony as evidence Gonzales committed the uncharged offenses would 

violate the instruction that CSAAS testimony is not evidence he committed 

the charged offenses. Moreover, [the expert’s] testimony made it clear 

CSAAS evidence is not evidence Gonzales did anything charged or 

uncharged.” (Gonzales, supra, 16 Cal.App.5th at p. 504.)

This reading of CALCRIM No. 1193 comports with ours. Moreover, as 

in Gonzales, Dr. Carmichael testified that he had no opinion as to whether 

defendant committed the charged offense and, in fact, did not know the 

specific facts of this case. Under these circumstances, we disagree with 
20

defendant that CALCRIM No. 1193 functioned to lessen the prosecution’s 

burden to prove guilt beyond a reasonable doubt. Thus, because the trial 

court’s instruction was “clear, accurate and sufficient” (People v. Gilbert

(1992) 5 Cal.App.4th 1372, 1387), defendant’s challenge fails.

DISPOSITION

The judgment is affirmed.
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_________________________

Jackson, J.

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A158243/People v. Roy Linn Tidwell