Filed 8/19/24 P. v. Camphor CA1/1

Opinon after recalling remittitur

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

HENERY L. CAMPHOR, JR.,

Defendant and Appellant.

 A151488

 (Alameda County

 Super. Ct. No. 178180)

A jury convicted defendant of three counts of lewd conduct with a child. 

In a nonpublished opinion filed October 5, 2018, we affirmed his conviction 

and modified the judgment to award defendant conduct credit for his 

presentence confinement. Subsequently, defendant filed a motion to recall 

the remittitur based on the ineffective assistance of appellate counsel. We 

granted the unopposed motion and vacated our prior opinion. The parties 

filed supplemental briefs addressing several issues not raised in the prior 

briefing on appeal. 

Defendant contends his convictions must be reversed because the trial 

court prejudicially erred in admitting unreliable child sexual abuse 

accommodation syndrome expert testimony, the prosecutor committed 

misconduct at several points during closing argument, defendant’s sentence 

under the “One Strike” law must be vacated, defendant’s 110-year-to-life

sentence is cruel and unusual in violation of the state and federal 
2

Constitutions, and we should remand for the trial court to consider whether 

to modify his sentence to strike enhancements for a prior felony conviction

and prior prison term. 

In our prior opinion in this appeal, we rejected these arguments except 

for defendant’s contention the case must be remanded for the trial court to 

exercise its discretion under amendments to Penal Code sections 667 and

667.5 that were enacted following defendant’s conviction. The Supreme 

Court granted defendant’s petition for review and, after issuing its decision in 

In re Vaquera (2024) 15 Cal.5th 706 (Vaquera), returned the matter to us 

with directions to vacate our decision and reconsider the cause in light of 

Vaquera. After consideration of Vaquera and the parties’ supplemental 

briefs, we reach the same disposition. We address Vaquera in part II.C. of 

the Discussion section of this opinion and otherwise largely reissue our prior 

decision. 

I. FACTUAL AND PROCEDURAL BACKGROUND

We summarize only those facts necessary to our decision. We include 

additional facts in the relevant portions of our discussion. 

John Doe 1 and his cousin, John Doe 2, lived with other members of 

their extended families in a five-bedroom home in Alameda. One of the 

members of the household, Sergio, is the boys’ uncle. Sergio met defendant at 

a church, and when Sergio was 13 or 14 years old, he introduced his older 

brother, Isaac, to defendant. After defendant befriended Sergio, he started 

“hanging out” with Isaac at the Alameda residence. He also came over to 

watch “a couple of baseball games,” and attended a few family gatherings. 

Over time, defendant became acquainted with other members of the 

family, including nine-year-old John Doe 1 and eight-year-old John Doe 2. 

On several occasions, defendant came to the Alameda residence for movie 
3

nights where he, Isaac, and Does 1 and 2 ate food brought over by defendant 

and watched movies rented by defendant in Isaac’s bedroom. In addition to 

movie nights, defendant took Does 1 and 2 to baseball practice, and out to the 

beach, McDonald’s, Little Caesars, and a sports facility, the Bladium. 

Occasionally, defendant would take Does 1 and 2 to the old naval base in 

Alameda and let them drive his car by sitting on the center console or on his 

lap while turning the steering wheel. 

Between late December 2013 and late June 2014, defendant took Isaac, 

Sergio, and John Does 1 and 2 on camping trips to Lake Chabot. On one or 

two occasions, defendant took only Does 1 and 2 on a camping trip. 

Both John Doe 1 and John Doe 2 testified at defendant’s jury trial. 

According to Doe 1, defendant drove him and his cousin, Doe 2, to Lake 

Chabot for a camping trip, “[e]stimating” the trip took place during spring 

break of 2014. When they arrived at the campsite, it was dark. Inside the 

tent, Doe 1 slept on top of his sleeping bag because the rocks were “hurting” 

and “bothering” him. After Doe 1 went to sleep, while it was still dark, he 

woke up because “[s]omething was rubbing [his] bottom” and penis between 

his “boxers” and “PJs” as he laid on his left side. Doe 1 then “got up,” but as 

he “went to go turn on the light [defendant] was right behind [him].” And 

when Doe 1 turned on the light, defendant was next to where Doe 1 had been 

sleeping, laying down in a position “that would have been to [Doe 1’s] back.” 

Though Doe 1 felt “[u]ncomfortable” and “wanted to leave,” he instead turned 

off the light, laid down in a different spot of the tent, and went back to sleep. 

John Doe 1 woke up again when he heard John Doe 2 yelling, “Get off 

me.” After turning on the light, he saw defendant “on top of” John Doe 2, who 

was on his stomach. Defendant’s clothing on the bottom half of his body was 

“down to his knees,” and Doe 1 could see his bottom. Doe 2 was “moving 
4

around trying to get [defendant] off of him.” Doe 1 kept telling defendant to 

“get off” Doe 2, and eventually defendant did so. 

John Doe 2 described the molestations at trial first testifying that he 

and John Doe 1 rode with defendant for a camping trip at Lake Chabot. 

Initially, Doe 2 was in the backseat of the vehicle with Doe 1, but at 

defendant’s instruction, “crawled over” to the front passenger seat. As Doe 2 

was crawling to the passenger seat, defendant pulled Doe 2’s sweatpants 

down to his thighs. Once he sat in the front passenger seat, defendant told 

Doe 2 to sit on his lap. Before Doe 2 could sit on defendant’s lap, however, 

defendant pulled his own pants to his knees, stating he was airing them out. 

When Doe 2 eventually sat on defendant’s lap to steer the car, defendant was 

still wearing boxer underwear. While Doe 2 was on defendant’s lap steering 

the vehicle, he noticed defendant was having an “erection.” Defendant began 

moving his “thigh part” side to side, and Doe 2 felt defendant’s penis under 

him. Defendant also put his hand on Doe 2’s penis and rubbed it. In 

response, Doe 2 used his hands to push defendant’s head against the window 

and moved back to the passenger seat.

When all three arrived at the campsite, John Doe 2 ate some hot dogs 

and chips. After he finished eating, he changed into his pajamas, and went to 

sleep in defendant’s tent. Later, as Doe 2 laid on his stomach asleep, he woke 

up because he felt defendant’s penis on his bottom. Doe 2’s underwear and 

pants “were down,” and defendant was laying over him with “with his leg 

over” Doe 2’s legs. He remembered a light going on “from outside,” and 

defendant was now next to him, acting like he was asleep. Doe 2 pulled up 

his pants and went back to sleep, but awoke again, finding his hand on 

defendant’s penis. Defendant moved Doe 2’s hand back and forth. Next he 
5

saw defendant laying on the ground facing the front of John Doe 1, with his 

hand on Doe 1’s penis outside of his clothing. 

The following day, defendant took both boys home. According to John 

Doe 1, defendant told him and John Doe 2, when he dropped them off, not to 

tell anyone what he had done the previous night. Several days later, John 

Does 1 and 2 talked to Isaac about what happened on their camping trip. 

Doe 1 did most of the talking, but Isaac “kind of believed [them] but he kind 

of at the same time he thought [they] were lying.” Isaac, in turn, reported 

this conversation to his foster mother, who did not believe him. 

John Does 1 and 2, along with Isaac and his friend, Gabe, subsequently 

went on another camping trip with defendant. Doe 1 felt safe because Isaac 

was “very brave and strong and would protect us.” Neither Doe 1 nor 2 

described any inappropriate touching during that trip.

On July 4th, there was a family gathering. At some point, John Doe 1’s 

mother mentioned that a friend of hers stated a man, who the family knew 

from “fishing at the rock wall,” was a pedophile. A family member then 

showed Doe 1’s father, a picture on his cell phone of defendant whose face 

appeared on a Megan’s Law or similar Web site. After Doe 1’s father saw 

defendant’s picture on the Web site, he summoned Does 1 and 2 to his 

mother’s room and asked each if defendant had ever touched them sexually 

or inappropriately. Does 1 and 2 indicated defendant had touched them 

inappropriately. 

Following his conversation with John Does 1 and 2, Doe 1’s father 

called the Alameda Police Department. When the Alameda police arrived at 

the residence, Doe 1’s father was told he needed to contact the East Bay 

Regional Parks police. Later that day, defendant came over to the house and 

Doe 1’s father hit him several times. 
6

A few days later, John Does 1 and 2 were interviewed at CALICO 

(Child Abuse, Listening, Interviewing, and Coordination center). Both boys 

said defendant had sexually molested them during a camping trip. Doe 2 

exaggerated and even lied about some of the details of defendant’s actions 

because he wanted people to take him seriously.

At trial, R.R. testified that in 2001, when he was seven years old, 

defendant sexually molested him. He testified that when he was seven years 

old, he lived in a one-bedroom apartment with his mother, brothers, and 

sister. Defendant did not live in the apartment complex, but knew someone 

who lived there, and he would “show up around the complex.” Through his 

friends who also lived at the complex, R.R. had contact with defendant.

According to R.R., defendant “would take a couple of us in his car and just

drive around and put us out to sell candy and stuff.” In February 2001, 

defendant drove R.R. to a toy store where he bought fake paper money and 

gave it to R.R. Following the stop at the toy store, defendant drove to a park.

It was already dark outside, but the lights were on inside the car. Defendant 

took off R.R.’s top and bottom clothing, after which defendant took off his own

pants and underwear. Next, defendant, who was on the driver’s side, placed 

R.R. on his lap. He touched R.R.’s legs, thighs, and “privates” and moved his 

penis against R.R.’s “bottom, torso” in a “[w]obbly” manner. While defendant 

and R.R. were in the car, the police made contact with them. Defendant was 

convicted of molesting R.R. in 2002.

Several other witnesses also testified during the trial. Child sexual 

abuse accommodation syndrome (CSAAS) expert, Dr. Anthony Urquiza, 

testified for the prosecution, explaining the common reactions of children to 

sexual abuse. Dr. Bradley McAuliff, a professor of psychology, testified for 
7

the defense as an expert on the suggestibility of children in cases of alleged 

sexual abuse. 

In March 2017, the Alameda County District Attorney filed a second 

amended information charging defendant with three counts of lewd act upon

a child, in violation of Penal Code section 288, subdivision (a). The 

information further alleged defendant’s crimes had involved multiple victims 

(Pen. Code, § 667.61) and defendant had previously been convicted of lewd act 

upon a child (id., §§ 667, subds. (a)(1) & (e)(1), 667.5, subd. (c), 667.71, 

subd. (b), 1170.12, subd. (c)(1), 1192.7, subd. (c)). The information further 

alleged defendant had served a prior prison term and had not remained free 

of prison custody for five years as of the time he committed the charged 

crimes. (Pen. Code, § 667.5, subd. (b).)

In April 2017, a jury convicted defendant as charged. 

The trial court sentenced defendant to an aggregate prison term of 110 

years to life with pretrial custody credits of 1,105 days.

II. DISCUSSION

A. CSAAS Evidence

Defendant contends the trial court erred by admitting CSAAS evidence 

in violation of several constitutional and statutory provisions. For the 

reasons explained below, we disagree. 

1. Additional Background

a. Motions in Limine

The prosecution moved in limine to admit CSAAS evidence at trial “to 

dispel myths and misconceptions concerning child molestation and sexual 

assault.” Defendant responded with a motion in limine to exclude CSAAS 

evidence, arguing its admission was improper because it was a clinical model 
8

not based on facts specific to the case, could not be narrowly tailored, and 

would not assist the trier of fact. 

At the hearing on the motions in limine, the prosecutor argued the 

delayed disclosure aspect of CSAAS was relevant because while John Does 1 

and 2 immediately told their 17-year-old uncle, Isaac, about the molestation

after “the most egregious events,” he did not believe them, and “it took them 

quite a while to get to the point where they told an adult subsequently.” The 

prosecutor also argued “there was behavior by the defendant . . . [that] could 

be considered grooming behavior,” a part of the accommodation aspect of the 

syndrome that could “give context” to John Does 1’s and 2’s reaction to the 

touching and escalation of the touching. 

The trial court found the CSAAS evidence “relevant as a matter of law,” 

and ruled “the contents of what they can testify to is limited also as a matter 

of law.” The court emphasized the expert could not “ultimatedly [sic] give an 

opinion as to the fact whether or not these boys were molested,” and told the 

parties to object if the experts “have gone beyond the scope of what they 

should have testified to.” 

b. Expert Testimony 

Dr. Anthony Urquiza, a licensed clinical psychologist employed as a 

professor and director of the Child Care Center with the Department of 

Pediatrics at the University of California, Davis Medical Center, testified for 

the prosecution as an expert on CSAAS. He told the jury that CSAAS is 

essentially “an educational tool” developed by Roland Summit in 1983. It 

first appeared in a professional journal article written to “inform therapists 

about commonalities or common characteristics or the context in which child 

abuse occurs.” There are five parts to CSAAS as written: (1) secrecy, 

(2) helplessness, (3) entrapment and accommodation, (4) delayed and 
9

unconvincing disclosure, and (5) recantation or retraction. He testified not all 

elements are necessarily present in a given case; rather Summit “wrote about 

. . . characteristics that are common to a child who has been sexually abused 

for the purpose of educating” child therapists and the five parts were 

“different ways in which children will respond to being sexual victims.” He 

emphasized the CSAAS is not a diagnostic tool and cannot be used to prove or 

disprove that any specific child has been sexually abused. He also testified 

he would not “have an opinion as to whether a particular person was abused 

or not, or whether a particular person was guilty or innocent of the crime.” 

Dr. Urquiza also testified CSAAS applies in a situation where the 

abuse victim knows their assailant. When asked by the prosecution if he 

could estimate how often child abuse victims know their abusers, Dr. Urquiza 

testified, “[F]or me to say a specific number is a little bit tricky, because there 

are lots of different studies and they all have somewhat different numbers. 

But I think it’s fair to say that by far most children are sexually abused by 

somebody that they know or somebody with whom they have some type of 

ongoing relationship. I would say in the percentages probably in around 90 

percent or so where there is some type of relationship or awareness between 

the child and the perpetrator.”

The trial court instructed the jury that “Dr. Urquiza’s testimony about 

child sexual abuse accommodation syndrome 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 [John Doe 1’s and 2’s] 

conduct was not inconsistent with the conduct of someone who has been 

molested, and in evaluating the believability of their testimony.” 
10

2. Analysis 

Expert opinion testimony is admissible when the subject matter is 

“beyond common experience,” and the expert’s opinion would assist the jury. 

(Evid. Code, § 801, subd. (a).) An expert opinion may be provided at trial 

even if the jurors have some knowledge of the topic, as long as the expert 

testimony would assist the jury. (People v. Prince (2007) 40 Cal.4th 1179, 

1222 [an expert may testify on a subject about which jurors are not “ ‘wholly 

ignorant’ ”].) 

We review the trial court’s decision to admit expert testimony for abuse 

of discretion. (People v. McDowell (2012) 54 Cal.4th 395, 426.) 

a. Kelly/Frye and Reliability

Defendant first contends the trial court erred in admitting the CSAAS 

evidence because it does not satisfy the Kelly/Frye1 framework for the 

admission of scientific evidence. Though defendant acknowledges California 

courts have repeatedly held CSAAS evidence is admissible without any 

Kelly/Frye showing when offered to rebut misconceptions about child abuse, 

he argues the time has nonetheless come to reevaluate these precedents. He 

further argues the trial court erred in failing to consider the reliability of Dr. 

Urquiza’s testimony under Evidence Code sections 801, 802, and Sargon 

Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,

770 (Sargon). 

More than 30 years ago, our Supreme Court recognized in People v. 

McAlpin (1991) 53 Cal.3d 1289 (McAlpin), that California courts have found 

expert testimony on the common reactions of child molestation victims

(CSAAS evidence) admissible, noting such testimony is “ ‘needed to disabuse 

1 People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly); Frye v. U.S. (D.C. Cir. 

1923) 293 F. 1013, 1014 (Frye). 
11

jurors of commonly held misconceptions about child sexual abuse, and to 

explain the emotional antecedents of abused children’s seemingly selfimpeaching behavior.’ ” (Id. at pp. 1300–1301.) The court explained CSAAS 

evidence is admissible not to prove the complaining witness had been abused, 

but to rehabilitate the witness’s credibility. (Ibid.) In 2004, the Supreme 

Court cited McAlpin with approval to extend its principles to expert 

testimony on the common behaviors of victims of domestic violence. (See 

People v. Brown (2004) 33 Cal.4th 892, 906.) Courts of Appeal have 

consistently followed McAlpin and Brown in holding CSAAS testimony is 

admissible to rehabilitate witness credibility and explain the behavior and 

treatment of children who are sexually abused. (See, e.g., People v. Munch 

(2020) 52 Cal.App.5th 464, 468; People v. Julian (2019) 34 Cal.App.5th 878, 

885; People v. Perez (2010) 182 Cal.App.4th 231, 245.) 

Defendant relies on an academic article and two judicial decisions from 

New Jersey and Kentucky that reject or question the use of CSAAS evidence 

in criminal trials to argue we should reconsider existing precedent. These 

authorities, however, do not prevail over the authority of our own Supreme 

Court.2 (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) 

Defendant also argues the trial court should have conducted a “Sargon 

Enterprises inquiry into the basis of CSAAS evidence,” and had the court 

2 We likewise reject defendant’s argument that CSAAS evidence is 

inadmissible because the sexual molestation of children no longer falls 

outside the common experience of jurors. Defendant cites an article stating 

an estimated 30 percent of male children and 40 percent of female children 

are molested in some way and notes the season premiere of a popular 

television series, Law and Order: Special Victims Unit, dealt with the subject 

of childhood sexual abuse. We cannot assume, as defendant apparently 

suggests, that these facts show the average juror is familiar with the 

behavior of child victims of sex crimes, or that expert testimony on the 

subject would be unhelpful to the jury. 
12

done so, it would have rejected the evidence, much like the New Jersey

Supreme Court. As our Supreme Court explained in Sargon, however, “under 

Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a 

gatekeeper to exclude expert opinion testimony that is (1) based on a matter 

of a type on which an expert may not reasonably rely, (2) based on reasons 

unsupported by the material on which the expert relies, or (3) speculative.” 

(Sargon, supra, 55 Cal.4th at pp. 771–772.) In doing so, the “court must not 

weigh an opinion’s probative value or substitute its own opinion for the 

expert’s opinion. Rather, the court must simply determine whether the 

matter relied on can provide a reasonable basis for the opinion or whether 

that opinion is based on a leap of logic or conjecture. . . . The goal of trial 

court gatekeeping is simply to exclude ‘clearly invalid and unreliable’ expert 

opinion.” (Id. at p. 772.) Dr. Urquiza’s expert testimony was based on (1) Dr. 

Summit’s article, which in turn was based on Summit’s clinical experience 

and interviews with other experts; (2) other research; and (3) Urquiza’s own 

clinical and teaching experience over the course of his 26-year career, 

including his treatment of “in excess of a thousand children.” Defendant has 

not shown his testimony was clearly invalid or unreliable. 

We also reject defendant’s claim that the CSAAS evidence was 

inadmissible under the Kelly/Frye framework. In Kelly, the California 

Supreme Court adopted the test set out in Frye, supra, 293 F. at page 1014, 

which requires a party proffering expert testimony based on a new scientific 

technique to establish the technique’s reliability and acceptance within the 

relevant scientific community before the testimony will be allowed. (Kelly, 

supra, 17 Cal.3d at p. 30.) By its terms, the Kelly/Frye rule only applies to 

new scientific techniques. 
13

As defendant recognizes, court’s decisions about whether Kelly/Frye 

applies to CSAAS testimony have typically depended on whether the 

testimony is offered as direct evidence of a defendant’s guilt, or for another 

purpose, such as to rehabilitate a victim’s credibility or explain a victim’s 

reactions to the abuse. When offered for the former purpose, as a predictive 

tool, courts have applied Kelly/Frye and excluded the testimony. (See, e.g., 

People v. Bowker (1988) 203 Cal.App.3d 385, 389–395 (Bowker).) When 

offered for the latter purpose, however, the Kelly/Frye reliability standard 

does not apply because the testimony does not concern a new scientific 

method of proving that molestation had occurred.3 (See, e.g., People v. Wells 

(2004) 118 Cal.App.4th 179, 187–190; People v. Gray (1986) 187 Cal.App.3d 

213, 218–219.) 

Here, Dr. Urquiza specifically stated in his testimony that CSAAS was 

not a diagnostic tool, and he did not opine as to whether the boys had, in fact, 

been molested. Moreover, the trial court instructed the jury not to use his 

testimony as evidence of guilt. (See, e.g. People v. Housley (1992) 

6 Cal.App.4th 947, 958–959 [limiting instruction that CSAAS evidence 

should not be used to determine whether molestation happened would clearly 

define proper use of testimony and prevent jury from using expert testimony 

as proof of molestation].) Because the CSAAS testimony was not offered to 

prove the charged crimes but to give context to John Does 1’s and 2’s conduct, 

Kelly/Frye does not apply, and we reject defendant’s argument the evidence 

was inadmissible. 

3 We address in part II.A.2.c. and d., post, defendant’s claims that the 

prosecution relied on specific portions of Dr. Urquiza’s testimony to prove 

that the molestation occurred. 
14

b. Not Tailored

Defendant next cites Bowker, supra, 203 Cal.App.3d at pages 393–394,

to support his argument that “the prosecutor must identify ‘the “myth” or 

[“]misconception” to be rebutted and the evidence must be tailored to address 

only that aspect.’ ” Defendant contends because the prosecution failed to do 

so here, the CSAAS testimony was inadmissible. We reject the argument. 

First, at the hearing on the motion in limine, the prosecutor discussed 

the relevance of Dr. Urquiza’s testimony. Specifically, she argued the 

delayed disclosure element was present because “the two boys did have a 

conversation with their 17-year-old uncle soon after the most egregious 

events in this case. However, they were dismissed out of hand and it took 

them quite a while to get to the point where they told an adult subsequently.” 

She also argued defendant exhibited grooming behavior, which is part of the 

accommodation element of CSAAS. She believed Dr. Urquiza’s testimony 

“would explain and give context to . . . the two John Does[’] behavior in this 

case as far as their reactions to any touching, any escalation of touching . . . .” 

Defendant challenges the prosecution’s explanation regarding delayed 

disclosure because it does not track the content of Dr. Summit’s work on 

CSAAS and Dr. Urquiza failed to “provide examples from the literature or 

from his clinical practice supporting his testimony that disclosure followed by 

disbelief equals delayed disclosure consistent with CSAAS.” Dr. Urquiza 

testified, however, that the five components of CSAAS reoccurred frequently 

in cases he has personally seen. With regard to delayed disclosure he 

testified in part that “if a child is able to ultimately be able to sort of cross 

that barrier and say this is what happened to me, and there is not a 

supportive positive response, then it’s hard to sustain that disclosure. [¶]

More practically, why keep putting this sense of embarrassment or shame 
15

out to people if no one is going to do anything about it. And so failing to get a 

positive response to a disclosure is a really difficult thing, often makes kids 

not to want say [sic] more about the abuse.” Whether he offered examples 

from his own practice or the literature goes to the weight and not the 

admissibility of his testimony. 

Second, while the Bowker opinion states that a prosecutor must 

identify the myth or misconception to be rebutted by CSAAS evidence, courts 

have not interpreted that “as requiring the prosecution to expressly state on 

the record the evidence which is inconsistent with the finding of molestation.” 

(People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) As the Patino court 

explained, “[i]t is sufficient if the victim’s credibility is placed in issue due to 

. . . paradoxical behavior” and CSAAS evidence is “pertinent and admissible if 

an issue has been raised as to the victim’s credibility.” (Id. at pp. 1744–

1745.) Here, the boys’ credibility was a central issue at trial and CSAAS 

testimony was admissible to help the jury understand their actions in 

response to the abuse. 

Finally, even if the prosecution improperly failed to identify the myth 

or misconception it was seeking to rebut, we conclude any error was harmless 

for the reasons discussed further below. 

c. Statistics

Defendant next complains that Dr. Urquiza improperly testified that 

“it’s fair to say that by far most children are sexually abused by somebody 

that they know or somebody with whom they have some type of ongoing 

relationship. I would say in the percentages probably in around 90 percent or 

so.” Relying on People v. Wilson (2019) 33 Cal.App.5th 559, 571 (Wilson) and 

People v. Julian (2019) 34 Cal.App.5th 878, 885–886 (Julian), defendant 

contends the testimony “ ‘invited jurors to presume [defendant] was guilty 
16

based on statistical probabilities,’ ” and deprived defendant of his right to a 

fair trial. 

Defendant’s reliance on Wilson and Julian is misplaced. In both cases, 

Dr. Urquiza testified for the prosecution about the five components of 

CSAAS, and in both cases was asked if children ever falsely accuse an adult 

of sexual molestation. In Wilson, he testified that false allegations occur 

“ ‘very infrequently or rarely’ ” and that “between 94 and 99 percent” of 

children who reported sexual abuse were telling the truth. (Wilson, supra,

33 Cal.App.5th at p. 568.) In Julian, he provided testimony that false 

allegations of sexual abuse do not happen very often and provided statistics 

as to the percentage of cases (between 1 and 8 percent) in which a child had 

lied. (Julian, supra, 34 Cal.App.5th at pp. 885–886.) 

Here, however, Dr. Urquiza did not testify about the percentage of false 

allegations as he did in Wilson and Julian. He testified that although it was 

“a little bit tricky” to give a specific number, he estimated “probably” “around 

90 percent” of abused children know their abuser. That testimony did not 

endorse the testimony of John Does 1 and 2, nor did the fact that the boys 

knew defendant, standing alone, suggest he was guilty of molesting them. 

Instead, the testimony disabused jurors of a common stereotype—that a child 

molester is “an old man in shabby clothes who loiters in playgrounds or 

schoolyards and lures unsuspecting children into sexual contact by offering 

them candy or money.” (See McAlpin, supra, 53 Cal.3d at p. 1302.) The trial 

court did not abuse its discretion in allowing this testimony. 

d. “Profile Evidence”

Dr. Urquiza also testified “grooming . . . is one of the strategies often 

that are used by perpetrators to gain access to a child to sexually abuse 

them,” and is “a process by which the relationship is developed, it’s a trusting 
17

relationship, and there’s an increasing amount of . . . sexual behavior . . . .” 

Defendant notes Dr. Summit’s CSAAS article did not discuss grooming,4 and 

because Urquiza’s testimony focused on the perpetrator, not the children’s 

reactions to abuse, it amounted to inadmissible profile evidence that should 

not have been allowed under the “banner of CSAAS.” When asked whether it 

is unusual for someone to molest two victims at once in the same place, Dr. 

Urquiza testified that while it is “not as common,” it “does happen.”

Defendant contends this evidence about how perpetrators act was outside the 

scope of Dr. Urquiza’s expertise, and the trial court erred in overruling 

defense counsel’s objection. 

“A profile ordinarily constitutes a set of circumstances—some 

innocuous—characteristic of certain crimes or criminals, said to comprise a 

typical pattern of behavior. In profile testimony, the expert compares the 

behavior of the defendant to the pattern or profile and concludes the 

defendant fits the profile.” (People v. Prince, supra, 40 Cal.4th at p. 1226; 

People v. Lopez (1994) 21 Cal.App.4th 1551, 1555 [“ ‘Profile evidence is a 

“point by point examination of profile characteristics” that enable[s] an 

investigator to justify pursuing the matter.’ ”].) Dr. Urquiza made no such in 

depth examination here but testified briefly and generally that grooming is a 

strategy “often” used by abusers to gain access to children and establish trust

and that sometimes, abusers abuse more than one child at a time in the same 

place. As in Prince, his “testimony did not refer to defendant at all” and “did 

4 We reject defendant’s argument that the subject of grooming falls 

outside the scope of CSAAS. While Dr. Urquiza testified the initial 1983 

article on CSAAS by Dr. Summit did not use the term “grooming,” it 

discussed “systematic desensitization” in the context of secrecy as “how the 

relationship was developed, and that is used to manipulate and coerce a 

child.” Dr. Urquiza explained that “systematic desensitization” is the “fancy 

psychological name for grooming.” 
18

not evaluate defendant’s behavior against a pattern or profile.” (Prince, at 

p. 1226.) This type of background evidence does not specifically address the 

guilt or innocence of defendant but helps the jury understand other evidence

and was not improper. 

e. Evidence Code Section 352

Defendant next argues that the trial court failed to weigh the probative 

value of Dr. Urquiza’s testimony against its prejudicial effect, even though 

defense counsel included an objection under Evidence Code section 352 in her 

moving papers. 

Relevant evidence may be excluded under Evidence Code section 352 

where “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.” Our Supreme Court has explained that “ ‘ “The 

‘prejudice’ referred to in Evidence Code section 352 applies to evidence which 

uniquely tends to evoke an emotional bias against the defendant as an 

individual and which has very little effect on the issues.” ’ ” (People v. 

Nguyen (2015) 61 Cal.4th 1015, 1035.) 

Defendant cites nothing in the record to suggest the trial court failed to 

conduct the weighing required by Evidence Code section 352 other than the 

fact that the court made no express statement that it had done so. But, as 

defendant readily acknowledges, the weighing can be inferred from the record 

despite the absence of an express statement by the trial court. (See People v. 

Prince, supra, 40 Cal.4th at p. 1237.) Here, the trial court held a hearing on 

the parties’ motions in limine, heard argument from the parties, and assured

the defense attorney he would sustain any objection to Dr. Urquiza’s 

testimony that exceeded the proper scope of its admissibility. Further, we 
19

fail to see how his testimony could have created an emotional bias against 

defendant when Dr. Urquiza did not mention defendant and repeatedly 

emphasized that the CSAAS framework was intended as an educational tool 

to understand victim behavior and could not be used to determine whether 

any given individual in fact abused a child. 

f. Harmless Error

Finally, although we conclude the trial court did not err in admitting 

Dr. Urquiza’s testimony, we also find that any possible error was harmless 

under People v. Watson (1956) 46 Cal.2d 818, 836. (See, e.g., Wilson, supra, 

33 Cal.App.5th at pp. 571–572 [applying Watson standard to evaluate 

whether admission of statistical evidence was prejudicial]; Bowker, supra, 

203 Cal.App.3d at p. 395 [same].) We consider whether it is reasonably 

probable that defendant would have achieved a more favorable result in the 

absence of the error. (Watson, at p. 836.)

Defendant argues John Doe 2 lied in his CALICO interview,5 the 

defense presented evidence showing the boys might have internalized 

negative attitudes toward defendant based on their Uncle Isaac’s negative 

opinion of him, and points out that the camping trip with defendant may not 

have occurred during their spring break in April, but in January. Dr. 

Urquiza, however, did not testify about any of these facts, nor did he

5 Specifically, defendant notes John Doe 2 said (1) defendant had 

masturbated in the car on the way to Lake Chabot, (2) defendant’s head 

cracked the car window when John Doe 2 pushed it, and (3) defendant 

masturbated in the tent. John Doe 2 admitted at trial that he told the 

CALICO interviewer some things that were not true, including that 

defendant had masturbated in the car because “[his] uncle wouldn’t believe 

[him]” and “[n]o one would believe [him].” He also affirmed that he may have 

exaggerated when he said defendant’s car window cracked. John Doe 2 

testified that it was true defendant had masturbated in the tent. 
20

comment on the boys’ credibility or the credibility of abused children in 

general.

6 The defense also had its own expert, Dr. McAuliff, opine on the 

suggestibility and memory of children in cases of alleged sexual abuse.

Defense counsel argued the inconsistencies in the boys’ testimony, their 

uncle’s bias toward defendant, and the issue with timing of the camping trip

to the jury thoroughly in closing argument, but the jury believed the boys 

nonetheless. 

Furthermore, the evidence of guilt in this case was strong. John Doe 1 

and John Doe 2 told Isaac defendant molested them on a camping trip before 

they had been questioned by any adult. They later repeated the allegations 

that defendant had molested them on a camping trip to the CALICO 

interviewer, and defendant’s own expert testified there was no misleading or 

unduly suggestive questioning by the CALICO interviewer. Though John 

Doe 2 admitted he lied about some things in his CALICO interview, he 

testified he did so because Isaac had not believed him initially and he wanted 

to be believed. Defendant had been convicted of molesting R.R. previously, in 

circumstances like the crime here. He befriended R.R., took him on outings, 

and molested him in his car. Similarly, defendant met Sergio through 

church, made friends with Isaac, then expanded the circle of friendship to 

include the boys. He took them on outings, bought them food, and took them 

out to “drive” his car, eventually taking both boys on a camping trip alone 

where he molested them in his car and tent. 

6 When questioned by defense counsel, Dr. Urquiza did acknowledge 

that false claims of sexual abuse are made by children. But he testified that 

it is not a subject he has researched or written about, he does not forensically 

evaluate whether children have been sexually abused or not, and as an 

expert witness it is not his place to assert whether a particular child has been 

abused or not. 
21

Defendant also complains the prosecution referenced Dr. Urquiza’s 

testimony multiple times during closing argument, “reminding the jurors how 

the boys’ actions meshed with CSAAS.” Given that CSAAS testimony is 

admissible to explain the behavior of victims of child abuse, we do not see 

how defendant was prejudiced by the prosecution’s use of that testimony to 

explain the boys’ reactions to the abuse. Moreover, as noted previously, the 

court expressly instructed the jury it could not use Dr. Urquiza’s testimony as 

evidence that defendant had committed the charged crimes. Further, defense 

counsel herself relied on Dr. Urquiza’s testimony to argue that false 

allegations do happen. 

Defendant also contends he was prejudiced because the jury (1) asked 

for a readback of the boys’ testimony, (2) had difficulty reaching agreement 

on one of the three counts against defendant, and (3) asked the court for 

clarification of the standard for reasonable doubt. But the jurors reached 

their guilty verdicts on counts one and two within just a few hours of 

deliberating, and their only questions focused on count three involving John 

Doe 2. The extra time they took to unanimously find defendant guilty of all 

three charges is consistent with a careful and thorough evaluation of the 

evidence. (See, e.g., People v. Houston (2005) 130 Cal.App.4th 279, 301.) 

Further, defendant has not shown that allowing Dr. Urquiza’s 

testimony could have resulted in a miscarriage of justice. As discussed 

previously, Dr. Urquiza generally discussed the elements of CSAAS and 

described common reactions of child abuse victims, stated he knew nothing 

about the facts of this case, and declined to express any opinion either about 

the credibility of the children or whether they had been sexually abused. On 
22

this record, it is not reasonably probable defendant would have achieved a 

more favorable result in the absence of Dr. Urquiza’s testimony. 

B. Prosecutorial Misconduct

Defendant argues the prosecutor committed misconduct several times 

during oral argument by (1) using Dr. Urquiza’s testimony about CSAAS as 

substantive evidence of guilt, (2) denigrating the defense, (3) vouching, and 

(4) mischaracterizing the testimony of a defense expert. 

A prosecutor who uses deceptive or reprehensible methods to persuade 

the jury commits misconduct. Reversal under the federal Constitution is 

necessary only when these methods infect the trial with such unfairness as to 

make the resulting conviction a denial of due process. (People v. Salcido 

(2008) 44 Cal.4th 93, 152.) A prosecutor’s conduct not rising to the level of a 

constitutional violation is misconduct under state law only if it involves the 

use of deceptive or reprehensible methods to attempt to persuade either the 

court or the jury. (People v. Ledesma (2006) 39 Cal.4th 641, 726.) “A 

prosecutor is given wide latitude to vigorously argue his or her case and to 

make fair comment upon the evidence, including reasonable inferences or 

deductions that may be drawn from the evidence.” (Ibid.)

1. CSAAS Testimony

As to CSAAS testimony, defendant contends the prosecution twice 

argued to the jury that defendant was grooming not only John Does 1 and 2, 

but their entire family. She first said: “You heard Dr. Urquiza talk about 

grooming. The boys were not the only ones being groomed here. The entire 

family was being groomed here. Sergio was being groomed . . . . [T]he 

defendant was insinuating and ingratiating himself into this whole family.” 

The trial court overruled defense counsel’s objection to that argument and 

admonished the jury that counsel’s statement are not evidence and the jury 
23

should follow the court’s instructions. Later, the prosecutor returned to the 

subject stating defendant paid John Doe 1’s father’s phone bill and “dangled 

jobs in front of [him],” and made “monetary investments in this family to 

ingratiate himself . . . .” The trial court again overruled a defense objection.

Defendant argues this was misconduct for two reasons: (1) because grooming 

is not a part of CSAAS, and (2) because the CSAAS testimony was admitted 

for the limited purpose of evaluating John Doe 1’s and 2’s testimony, but the

prosecutor used it as substantive evidence of guilt.

We agree generally with defendant that the argument was improper. 

As to the first comment, Dr. Urquiza testified very briefly about grooming as 

part of the secrecy aspect of CSAAS, but he testified only about a child abuser 

using grooming to gain a child’s trust, not to ingratiate himself with other 

family members. Moreover, the prosecution argued the evidence of 

defendant’s attempt to get close to the family not to explain the boys’ conduct, 

but to argue defendant had a “plan” all along to molest them. 

We conclude, however, that any error was nonprejudicial. While he did 

not call it grooming, Dr. Urquiza did discuss the concept that if an abuser is 

accepted as a trusted person in a family, it can put children “in a position of 

great vulnerability or helplessness.” The prosecutor’s remarks about 

grooming the family during closing argument were brief, and the trial court 

admonished the jury that they were not evidence and reminded them to 

follow the court’s instructions. The jury was instructed that they could not 

consider the CSAAS evidence to prove defendant was guilty of committing 

the crime. Further, as discussed previously, the evidence of defendant’s guilt 

was strong. In light of all these considerations, we conclude defendant was 
24

not prejudiced.

7 (People v. Seumanu (2015) 61 Cal.4th 1293, 1344 [improper 

argument was not prejudicial where it was brief part of closing argument and 

evidence of guilt was strong].) 

2. Denigrating Defense Counsel

Defendant next argues the prosecutor improperly denigrated defense 

counsel during closing argument with the following comment: “The defense 

[attorney] will tell you all the reasons that the two children in this case . . . 

should not be believed. There’s a lot of reasons, she’ll have a lot to talk about, 

there’s a lot of inconsistencies. As I warned you at the beginning of this case, 

these are child witnesses, ladies and gentlemen. And the defense is betting on 

that. That’s what happens in these cases.” (Italics added.) 

Defendant argues the comments were improper because they suggested 

defense attorneys have a “stock” and “worthless” response to accusations of 

sexual abuse by children, and because they related to the prosecutor’s 

experience in other cases and thus referred to matters outside the record. 

We disagree that the prosecutor’s comments were improper. Rather, 

the comment acknowledged that the children’s testimony contained certain 

inconsistencies and attempted to anticipate and prepare the jury for defense 

arguments about the credibility of John Does 1 and 2. At most, it criticized 

defense tactics, not defense counsel. Courts have frequently found similar 

argument appropriate. (See, e.g., People v. Cunningham (2001) 25 Cal.4th

926, 1002–1003 [prosecutor’s argument that defense counsel’s job is “ ‘to 

create straw men,’ ” “ ‘to put up smoke, red herrings,’ ” and the prosecution’s 

7 In his reply brief, defendant argues the prosecutor’s argument “went 

beyond arguing about a molester getting close to a family to get access to a 

child, for it relied on evidence not admitted substantively.” Because 

defendant did not raise this argument in his opening brief, did not elaborate, 

and did not provide citations to the record, we will not address it. 
25

job is “ ‘to straighten that out and show [the jury] where the truth lies’ ” was 

not improper]; People v. Stitely (2005) 35 Cal.4th 514, 559 [jurors should 

“avoid ‘fall[ing]’ for [defense] counsel’s argument” and should view it as a 

“ ‘ridiculous’ attempt to allow defendant to ‘walk’ free” and a “ ‘legal smoke 

screen’ ”].)

3. Vouching

Defendant also argues the prosecutor improperly vouched for R.R. and 

John Doe 2 and relied on her professional opinion and facts outside the record

when she summarized R.R.’s and John Doe 2’s descriptions of what happened 

in defendant’s car then told the jurors, “These, ladies and gentlemen, are

things that people cannot make up.” Defendant acknowledges that a 

prosecutor may argue a witness is credible based on facts in the record and 

inferences reasonably drawn from them but argues here the prosecutor asked 

the jury to rely on her personal assessment of the evidence. 

Viewing the comments in context, however, the prosecutor was not 

vouching. In describing R.R.’s testimony about his molestation by defendant, 

and comparing it to the molestation of John Doe 2, the prosecutor said:

“In July of 2001, [defendant] parked near Diamond Park, the [police 

evidence] technician told you that location where the technician found [R.R.’s] 

underwear on the floor [of the car]. He told you that car was parked in 

Diamond Park here in Oakland. It was dark. The defendant took all of 

[R.R.’s] clothes off, the defendant took his own pants off. As he’s sitting in 

the driver’s seat the defendant moved [R.R.] over to his lap and put [R.R.] on 

his lap and moved around, engaged in masturbatory behavior with [R.R.] on 

his lap. 
26

“OPD[8] caught him. If OPD had not come up on that car we would not 

have this evidence, more than likely. But we do have this evidence. This 

evidence is undeniable, it is a fact to you. And I think one of the absolute 

crystal clear things you can take from this evidence is the position that 

defendant put [R.R.] in in his car. The position that he put [John Doe 2] in in 

his car.

“These, ladies and gentlemen, are things that people cannot make up. 

These are things that exhibit the defendant’s predilection, and exhibit his 

methods and exhibit the ways he victimizes boys.” (Italics added.) 

Evaluating these comments in context, the prosecutor described the 

molestation of R.R. in defendant’s car and told the jury the police discovered 

defendant with R.R. and recovered R.R.’s underwear from the floor, arguing 

that “OPD caught him” and that evidence was “undeniable.” She then 

suggested defendant put John Doe 2 in a similar “position” as R.R., and made 

the comment that “[t]hese . . . are things that people cannot make up.” The 

prosecutor was discussing the evidence of defendant’s prior sexual offense, 

which was confirmed by an Oakland police officer, drawing similarities to 

John Doe 2’s testimony, and asking the jury to use that information to 

evaluate defendant’s methods and predilection. This was not improper. 

(People v. Seumanu, supra, 61 Cal.4th at p. 1330 [“ ‘ “[S]o long as a 

prosecutor’s assurances regarding the apparent honesty or reliability of 

prosecution witnesses are based on the ‘facts of [the] record and the 

inferences reasonably drawn therefrom, rather than any purported personal 

knowledge or belief,’ her comments cannot be characterized as improper 

vouching.” ’ ”].)

8 Oakland Police Department. 
27

4. Mischaracterizing Defense Expert’s Testimony

Dr. Bradley McAuliff testified as an expert for the defense on the 

suggestibility and memory of children in cases of alleged sexual abuse. 

McAuliff testified that a witness is “suggestible” when his or her memory or 

report has been compromised by an external source—based on direct 

questions from an interviewer, conversations a child overhears, or other 

“experiments that . . . seep into their report about the event.” He also

testified to factors that influence a witness’s memory and the accuracy of the 

memory, including the passage of time, repeatedly asking direct or leading 

questions about what might have happened, “stereotype induction,” and 

“cross contamination” through conversations with other people. 

In her closing argument, the prosecutor characterized Dr. McAuliff’s 

testimony as follows:

“I’m going to talk about Dr. McAuliff here for a minute and analyze 

what he says. Because essentially what he says . . . is that when a child 

witness comes to testify and has gone through the court process they’re 

unreliable witnesses. That’s the conclusion that he and defense counsel want 

you to draw, because they talk to authority figures, because they have been 

repeatedly questioned. 

“Ladies and gentlemen, that is the criminal process. This is not a 

laboratory where people lie to children and then see if the children repeat the 

lie after interview after interview after interview. This is a court of law. If 

you are to believe Dr. McAuliff’s conclusion, then in no case in a court of law 

could you believe a child. That’s the conclusion that he wants you to get.” 

(Italics added.)

Defense counsel objected that the argument misstated the testimony. 

The court overruled the objection, but stated: “The jury will decide the 
28

testimony. They know what the evidence is, and they’re shaking their heads. 

They know what the evidence is. So move on.” 

Defendant argues mischaracterizing testimony is misconduct, and the 

comment on Dr. McAuliff’s testimony was an improper attack on the defense 

strategy of questioning the boys’ credibility with expert testimony about 

possible contamination. 

“Although prosecutors have wide latitude to draw inferences from the 

evidence presented at trial, mischaracterizing evidence is misconduct.” 

(People v. Hill (1998) 17 Cal.4th 800, 823.) Once again taking into account 

the context of the prosecutor’s argument, we find no error. The prosecutor 

told the jury she wanted to “analyze” Dr. McAuliff’s testimony, referred to his 

testimony that children may be unreliable witnesses when repeatedly 

questioned by authority figures, and told the jury if they were to believe that 

“conclusion” always applied, no child witness could ever be believed. She 

then continued to discuss weaknesses in his testimony, including his 

statement that his studies were based on academic experiments rather than 

“real life” incidents. The argument reasonably falls within the wide latitude 

granted prosecutors in argument. Moreover, any arguable error in 

overstating Dr. McAuliff’s “conclusion” was remedied by the trial court’s 

immediate statements noting that “[t]he jury will decide the testimony” and 

the jury “know[s] what the evidence is,” and the trial court’s instruction to 

the jury that nothing the attorneys say, including their remarks during 

closing argument, is evidence. 

5. Right to Fair Trial

Finally, defendant contends that all of the prosecutorial errors 

compromised defendant’s constitutional right to a fair trial and require 

reversal. As discussed above, we conclude three of the four alleged errors 
29

were not improper. The inappropriate remarks regarding grooming the 

family were nonprejudicial because the evidence of molestation was strong, 

the remarks were brief, and they were followed by an instruction that the 

attorneys’ remarks are not evidence and jury instructions that the jury could 

not use the CSAAS evidence to conclude defendant committed the crimes. 

Defendant’s right to a fair trial was not violated. 

C. One Strike Sentence

Defendant next argues we must remand for resentencing because the 

trial court failed to indicate whether his sentence was based on the habitual 

sexual offender (Pen. Code,9 § 667.71) provisions or the One Strike (§ 667.61) 

sentence scheme and because his One Strike sentence was based on a 

circumstance not pleaded in the information. Our Supreme Court directed us 

to reconsider this issue in light of its recent opinion in Vaquera. With the 

benefit of the parties’ supplemental briefs and after close study of the facts of 

this case, we conclude defendant is not entitled to resentencing under the 

One Strike law.

1. Additional Background

The second amended information alleged three counts of lewd conduct 

with a child under 14, in violation of section 288, subdivision (a). It further 

alleged that defendant had previously been convicted of a violation of 

section 288, subdivision (a) and as to each count that the prior lewd conduct 

conviction brought defendant within the sentencing provisions of the habitual 

sexual offender law (§ 667.71, subd. (b)). The information also contained the 

following One Strike allegation as to each of the three counts: “It is further 

alleged that the said defendant has been convicted in these proceedings of 

committing an offense specified in subdivision (c) of Penal Code § 667.61 

9 All further undesignated statutory references are to the Penal Code.
30

against more than one victim. It is further alleged that said defendant is 

punishable under the provisions of subdivisions (a) and (b) of section 667.61 

and is ineligible for probation pursuant to subdivision (h) section 667.61.” 

In a bifurcated trial held on April 3, 2017, the trial court found true 

that defendant had suffered the prior lewd conduct conviction and served a 

prior prison term, subject to the jury’s verdict. The next day, the jury 

convicted defendant on all three charged counts and found true that 

defendant had suffered the prior conviction and committed his offenses 

against more than one victim. 

At sentencing, the trial court said it was “sentencing the defendant 

under two schemes.” First, under the habitual sexual offender law, 

section 667.71, the court sentenced defendant to terms of 55 years to life on 

each count, based on a 25-year-to-life term under section 667.71, 

subdivision (b), doubled because of the prior strike, and increased by five

years for the prior serious felony conviction. The court ordered counts one 

and three to run consecutively, but the term on count two to run concurrently 

because that count had been committed on the “same victim and pretty much 

in the same occasion” as count three. It imposed, then stayed, the one-year 

term under section 667.5, subdivision (b) for the prior prison term, resulting 

in an aggregate term of 110 years to life. 

The court then sentenced defendant under the One Strike law, 

section 667.61, subdivision (j)(2) (section 667.61(j)(2)) to 25 years to life on all 

counts, doubled as a result of the prior strike, and increased by five years for 

the prior serious felony. The trial court again ran the sentences on counts 

one and three consecutively, but the sentence on count two concurrently. The 

court did not say it was staying the sentence under either the habitual sexual 
31

offender or the One Strike sentencing schemes, but the minutes show the 

One Strike sentence was stayed. 

2. Unpleaded Allegations

Defendant contends the trial court erred in calculating his sentence 

because the second amended information failed to give him adequate notice 

he was subject to the increased 25-year-to-life terms under the provisions of 

the One Strike law.

10 We disagree.

The One Strike Law is an alternative sentencing scheme that sets forth 

harsher indeterminate sentences when the prosecution pleads and proves 

specific aggravating circumstances for certain sex crimes. (Vaquera, supra, 

15 Cal.5th at p. 713.) When the jury finds true a One Strike allegation, the 

offense generally will be punishable by an indeterminate sentence of 15 years 

to life or 25 years to life. (See § 667.61, subds. (a)–(e); Vaquera, at p. 713.) 

Under subdivision (a), the sentence is generally 25 years to life if the crime 

was committed under one or more of the circumstances specified in 

subdivision (d) or under two or more of the circumstances specified in 

subdivision (e) of the One Strike law. (§ 667.61, subd. (a).) Under 

subdivision (b), the sentence is generally 15 years to life if the crime was 

committed under one of the circumstances specified in subdivision (e). 

(§ 667.61, subd. (b).) As relevant here, the subdivision (e)(4) circumstance 

supports an increased sentence if the defendant committed the offense 

against more than one victim. (§ 667.61, subd. (e)(4).) 

10 Although defendant did not object to the sentencing error, we 

exercise our discretion to consider his claim on the merits to avoid an 

ineffective assistance of counsel claim and because defendant argues the trial 

court’s error impacts his substantial rights. (See, e.g., People v. Anderson 

(2020) 9 Cal.5th 946, 961–963.)
32

The scheme also contains exceptions providing harsher sentences when 

the prosecution has pled and proved a One Strike circumstance involving a 

minor victim. (Vaquera, supra, 15 Cal.5th at p. 713; see § 667.61, subd. (a) 

[“Except as provided in subdivision (j), (l), or (m)”]; id., subd. (b) [“Except as 

provided in subdivision (a), (j), (l), or (m)”].) Section 667.61(j)(2) provides for 

a sentence of 25 years to life if a defendant’s offense was committed under 

one of the circumstances in subdivision (e) on a victim under 14 years of age.

(§ 667.61, subd. (j)(2).) 

In Vaquera, a jury convicted the defendant of two counts of lewd act on 

a child under age 14 in violation of section 288, subdivision (a). (Vaquera,

15 Cal.5th at pp. 714–715.) As to one of the counts, defendant was sentenced 

to an indeterminate term of 25 years to life under section 667.61(j)(2). 

(Vaquera, at pp. 715, 720–721.) Our Supreme Court held the 25-year-to-life 

sentence violated due process because the One Strike allegation cited only to 

the multiple victim circumstance in subdivision (e)(4) and subdivision (b), 

which provides for a sentence of 15 years to life. (Vaquera, at pp. 721, 723–

725.) The allegation failed to provide fair notice of the prosecution’s intent to 

invoke the circumstance on which the trial court sentenced him because it 

“did not specify that the prosecution was seeking 25 years to life on that 

count, cite to [section 667.61](j)(2), or otherwise make clear that the 

prosecution was seeking a longer sentence based on the victim’s age.” 

(Vaquera, at p. 725.)

Having determined the 25-year-to-life sentence violated the defendant’s 

due process right to fair notice, the Vaquera court further concluded the error 

was not harmless. (Vaquera, supra, 15 Cal.5th at p. 726.) As the court 

explained, the purpose of statutory pleading requirements is to give a 

defendant the opportunity to consider the potential sentence in time to make 
33

informed decisions about defense strategy. (Ibid.) “Because the information 

could be reasonably read as indicating that the prosecution had elected not to 

seek 25 years to life under [section 667.61](j)(2),” the Attorney General had 

not met its burden “to demonstrate that Vaquera was aware of the sentence 

the prosecution was seeking at a time when he could have taken his 

sentencing exposure into consideration in making key decisions about how to 

conduct his defense, ‘including whether to plead guilty, how to allocate 

investigatory resources, and what strategy to deploy at trial.’ ” (Vaquera, at 

p. 727.) 

That is not the case here. In this case, the accusatory pleading did

provide defendant timely actual notice the prosecution was seeking a 

sentence of 25 years to life under the One Strike law. The information was 

amended before trial and the One Strike allegation attached to each count 

specifically cited section 667.61, subdivision (a), which provides for a 25-yearto-life sentence. In other words, unlike Vaquera, defendant could not infer 

the prosecution had exercised its discretion to reject a possible 25-year-to-life 

sentence under subdivision (a) and seek only a sentence of 15 years to life

under subdivision (b). (Vaquera, at p. 727.)

Further, the One Strike allegations expressly alleged defendant had 

been convicted “in these proceedings of committing an offense specified in

subdivision (c) of Penal Code § 667.61 against more than one victim.” The 

only crime charged in this case was section 288, subdivision (a), which 

necessarily requires proof the victim was under age 14 as required under

section 667.61(j)(2). (See Vaquera, supra, 15 Cal.5th at p. 725, fn. 12 [noting 

three offenses to which One Strike law applies require proof the victim was 

under age 14, and for other offenses, due process requires the One Strike 

allegation to specify the victim was under age 14 when prosecution is seeking 
34

a longer sentence under § 667.61, subd. (j)(2) on that basis].) There is no 

dispute that the statutory pleading requirement was met by the allegation 

that the offense was committed against more than one victim. (§ 667.61, 

subds. (e)(4) & (o).) Thus, defendant had timely actual notice that the 

prosecution was seeking a 25-year-to-life sentence under the One Strike law, 

and all of the facts supporting imposition of that sentence were alleged in the 

information and found true by the jury beyond a reasonable doubt.

In his supplemental brief, defendant argues “[t]he One Strike 

allegations are essentially the same as those the Supreme Court found 

wanting” in Vaquera, but he does not address the critical distinction that the 

amended information here alleged section 667.61, subdivision (a) providing 

for a 25-year-to-life sentence. Nor is there any reason to conclude defendant

was prejudiced in preparing his defense strategy, particularly given that he 

had actual notice the prosecution was seeking a 25-year-to-life sentence and

the information alleged all facts required to impose that sentence under 

section 667.61(j)(2). (See, e.g., People v. Anderson, supra, 9 Cal.5th at p. 964 

[purpose of pleading requirement is “to give sufficient notice to permit the 

defense to make informed decisions about the case, including whether to 

plead guilty, how to allocate investigatory resources, and what strategy to 

deploy at trial”].) Nothing in the parties’ briefing or the record indicates

defendant was offered and refused a plea bargain that might have been 

influenced by ambiguity regarding his potential sentence under the One 

Strike law. Further, there is nothing to suggest defendant might have

allocated investigatory resources differently or presented a different defense 

had the information specified the One Strike allegation was also based on the 

victim’s age. The age of the victims was necessarily at issue in the 

underlying offenses, and defendant’s defense theory was that the victims
35

were not telling the truth and he did not commit the acts at all. Under these 

circumstances, any possible error in failing to specifically plead either

section 667.61(j)(2) or the victims’ age was harmless. 

“A defendant has a due process right to fair notice of any sentencing 

allegation that, if proven, will increase the punishment for a crime. 

[Citations.] In the sentencing enhancement context, the touchstone of fair 

notice is whether the accusatory pleading enables the defense to predict 

the sentence the defendant faces if convicted. To enable a defendant to 

make this prediction, an accusatory pleading must provide the defendant 

with fair notice of the factual basis on which the prosecution is seeking an 

increased punishment and of ‘the potential sentence.’ ” (Vaquera, supra, 

15 Cal.5th at p. 717.) Here, defendant had fair notice that the prosecution 

was seeking a 25-year-to-life sentence and why. There is no reason to 

remand for resentencing under the One Strike law.

3. Discretion To Choose Sentencing Scheme

Defendant next argues that the case must be remanded to allow the 

trial court to exercise its discretion to choose whether to sentence defendant 

under the habitual sex offender or the One Strike sentencing scheme. As 

noted above, the trial court did not state it was staying defendant’s One 

Strike sentence in the oral pronouncement of judgment, but the court’s 

minutes reflect the sentence was stayed. We presume that notation was 

correct because it is not inconsistent with the oral pronouncement of 

judgment. (See In re Julian R. (2009) 47 Cal.4th 487, 498–499 [a judgment 

or order of the lower court is presumed correct, and all intendments and 

presumptions are indulged to support it on matters as to which the record is 

silent].) Further, a stay of the One Strike term is consistent with the 

procedure suggested in People v. McQueen (2008) 160 Cal.App.4th 27, 38, in 
36

which a trial court should select the appropriate term under either 

section 667.61 or 667.71, then stay the alternative sentence.

11 In any event, 

because we have rejected defendant’s claim that he is entitled to a lesser 

sentence under the One Strike law, remand on this issue is unnecessary. 

D. Cruel and Unusual Punishment

Defendant next contends his prison sentence of 110 years to life 

constitutes cruel and/or unusual punishment under both the state and 

federal Constitutions.

As an initial matter, we note defendant forfeited the claim by failing to 

raise it in the trial court. Because defendant contends his trial attorney 

rendered ineffective assistance of counsel by failing to object, however, we 

also address his claims on the merits. (See People v. Speight (2014) 

227 Cal.App.4th 1229, 1248–1249.) 

The Eighth Amendment prohibits imposition of a sentence “ ‘that is 

grossly disproportionate to the severity of the crime,’ ” but in a noncapital 

context, successful challenges are “ ‘exceedingly rare.’ ” (Ewing v. California 

(2003) 538 U.S. 11, 21, 28–31 [in light of antirecidivist purpose of California’s 

Three Strikes law, 25-year-to-life sentence for stealing three golf clubs worth 

11 There is a split of authority over how to impose sentence when a 

defendant is eligible for sentencing under both the habitual sexual offender 

and One Strike schemes. (Compare People v. Snow (2003) 105 Cal.App.4th 

271, 283–284 and People v. Johnson (2002) 96 Cal.App.4th 188, 205–206 

[court should select sentence under appropriate sentencing scheme and strike 

or dismiss sentence under other scheme] with People v. Lopez (2004) 

119 Cal.App.4th 355, 364 and People v. McQueen, supra, 160 Cal.App.4th at 

pp. 37–38 [court should impose sentence under either statute and stay 

sentence under the other]; see also Couzens & Bigelow, Sex Crimes: Cal. Law 

& Procedure (The Rutter Group 2023 update) ¶ 13:17.) Defendant does not 

discuss the split in authority but contends the trial court should have stayed 

the alternative sentence under McQueen. 
37

a total of $1,200 was not cruel and unusual].) A sentence may violate the 

California Constitution’s prohibition on cruel or unusual punishment “if . . . it 

is so disproportionate to the crime for which it is inflicted that it shocks the 

conscience and offends fundamental notions of human dignity.” (In re Lynch 

(1972) 8 Cal.3d 410, 424 (Lynch).) Because the definition of the crime and the 

determination of punishment are uniquely in the domain of the Legislature, 

defendant must overcome a considerable burden to establish that his 

sentence is cruel or unusual. (People v. Johnson (2010) 183 Cal.App.4th 253, 

296.) 

“[W]hen a defendant under an indeterminate sentence challenges that 

sentence as cruel or unusual punishment in violation of the California 

Constitution, the test is whether the maximum term of imprisonment 

permitted by the statute punishing his offense exceeds the constitutional 

limit, regardless of whether a lesser term may be fixed . . . .” (Lynch, supra, 

8 Cal.3d at p. 419.) In assessing whether the maximum life sentence is “ ‘out 

of all proportion to the offense,’ ’’ we employ three “techniques” identified by 

the Lynch court. (Id. at pp. 424–425.) First, we “examine[ ] the nature of the 

offense and/or the offender, with particular regard to the degree of danger 

both present to society.” (Id. at p. 425.) Next, we compare the sentence with 

the “punishments prescribed in the same jurisdiction for different offenses 

which . . . must be deemed more serious.” (Id. at p. 426.) Finally, we 

compare the sentence with “the punishments prescribed for the same offense

in other jurisdictions having an identical or similar constitutional provision.” 

(Id. at p. 427.) 

In arguing his sentence constitutes cruel and unusual punishment, 

defendant focuses primarily on the nature of his offenses and his personal 

background. He argues his offenses were brief, did not involve force or 
38

intimidation, and defendant did not engage in similar behavior after the 

molestations on the camping trip. He notes he is a military veteran, 

community volunteer, and did well in prison and on parole. 

We disagree the nature of his offenses and his background compel a 

conclusion that defendant’s sentence was cruel or unusual. Defendant 

committed multiple sex crimes against young children over the course of 

many years, against three different boys who had been entrusted to his care. 

(See, e.g., People v. Baker (2018) 20 Cal.App.5th 711, 719, 725 [15-year-to-life 

sentence for convicted child molester with no prior history of sex crimes and 

otherwise insignificant criminal record was not cruel and/or unusual]; People 

v. Christensen (2014) 229 Cal.App.4th 781, 803–804 [five separate acts of 

lewd conduct on three different victims were supportive of very long prison 

term].) Further, defendant was a mature and recidivist offender, who was 

not deterred by the prior prison term he served for the molestation of R.R. As 

defendant acknowledges, it is also “ ‘of course, significant’ ” that he 

committed his crimes in this case against two victims. Moreover, defendant 

caused the boys substantial emotional and psychological harm. The trial 

court remarked on the particularly traumatic experience of testifying for both 

R.R. and John Doe 1, and the trial court’s receipt of letters from the parents 

of both John Does 1 and 2, attesting to the psychological damage done by 

defendant. John Doe 1’s mother wrote that defendant had caused 

“unbelievable damage” and “trauma” to John Doe 1 and the entire family. 

John Doe 2’s mother wrote that he had been so traumatized by his experience 

with defendant that he needed to attend school through a “Home Hospital” 

and would likely need counseling for the rest of his life. 

Defendant relies on In re Rodriguez (1975) 14 Cal.3d 639 to argue his 

sentence was disproportionate, but that case is inapposite because it did not 
39

involve a repeat offender.12 Moreover, nothing in the record indicates 

defendant had a mental disability, a low IQ, or a learning disorder as did the 

defendant in Rodriguez. (Rodriguez, at pp. 655–666 [punishment was 

excessive where defendant’s “conduct was explained in part by his limited 

intelligence” and his “inability to cope” with his “intellectual and sexual 

inadequacy”].) 

Under the second prong of the Lynch test we compare defendant’s 

sentence to punishments for more serious crimes in California. (Lynch, 

supra, 8 Cal.3d at p. 426.) Defendant argues substantially shorter sentences 

are often imposed for crimes that are arguably more serious than lewd 

conduct with a child under 14. But “ ‘[p]unishment is not cruel or unusual 

merely because the Legislature may have chosen to permit a lesser 

punishment for another crime. Leniency as to one charge does not transform 

a reasonable punishment into one that is cruel or unusual.’ ” (People v. 

Baker, supra, 20 Cal.App.5th at p. 727.) In particular, “ ‘great deference is 

ordinarily paid to legislation designed to protect children, who all too 

frequently are helpless victims of sexual offenses.’ ” (Id. at p. 729.) Lengthy 

sentences for sexual offenses against children have been upheld by numerous

courts. (See, e.g., People v. Reyes (2016) 246 Cal.App.4th 62, 82–90 [life 

without possibility of parole not cruel and unusual punishment for 

committing two forcible sex offenses against a minor]; People v. Perez (2013) 

214 Cal.App.4th 49, 51, 60 [30 years to life for committing two forcible lewd 

acts against a child under the age of 14]; People v. Retanan (2007) 

154 Cal.App.4th 1219, 1230–1231 [135 years to life for multiple sex offenses 

12 We do not address defendant’s reliance on an opinion that has since 

been ordered depublished by the California Supreme Court. (People v. 

Cadena (Dec. 11, 2019, B281175) opn. ordered nonpub. Dec. 11, 2019, 

S258791.) 
40

involving minors].) We conclude defendant has not shown his sentence is one 

of those “ ‘rarest of cases’ ” in which the “ ‘length of a sentence mandated by 

the Legislature is unconstitutionally excessive.’ ”

13 (Baker, at p. 724.) 

As to defendant’s federal constitutional claim, the Eighth Amendment 

“ ‘does not require strict proportionality between crime and sentence,’ but 

rather ‘forbids only extreme sentences that are “grossly disproportionate” to 

the crime.’ ” (Graham v. Florida (2010) 560 U.S. 48, 59–60.) To decide 

whether a sentence is grossly disproportionate to the crime, a court “begin[s] 

by comparing the gravity of the offense and the severity of the sentence.

[Citation.] ‘[I]n the rare case in which [this] threshold comparison . . . leads 

to an inference of gross disproportionality,’ ” the court compares defendant’s 

sentence with sentences received by offenders in the same jurisdiction and 

with sentences imposed for the same crime in other jurisdictions. (Id. at 

p. 60.) For the reasons set forth above in our analysis under the first Lynch

prong, the gravity of the offense and the severity of the sentence do not give 

rise to a preliminary determination that sentencing defendant to 110 years to 

life would be excessive. On this basis alone, we conclude such a sentence 

would not be “grossly disproportionate” under the Eighth Amendment to the 

federal Constitution. 

Considering the totality of the circumstances, we conclude defendant’s

110-year-to-life sentence does not offend either the state or federal 

prohibition against cruel or unusual punishment. 

13 Defendant does not address the third Lynch prong and, accordingly, 

we find it unnecessary to compare his punishment with the same offense in 

other jurisdictions. (See People v. Norman (2003) 109 Cal.App.4th 221, 230 

[disproportionality need not be shown using each of the Lynch techniques].)
41

E. Remand for Resentencing

As noted above, the trial court sentenced defendant to five years on 

each count for his prior serious felony and imposed but stayed a one-year 

enhancement for his prior prison term. Defendant asked us to remand to 

allow the trial court to consider whether to exercise its newfound discretion, 

pursuant to Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393), 

to strike the previously mandatory prior serious felony enhancements under 

section 667, subdivision (a). Defendant also asks us to remand under Senate 

Bill No. 136 (2019–2020 Reg. Sess.), which amended section 667.5, 

subdivision (b) to provide that a one-year prior prison term enhancement will 

only apply if defendant served a prior prison term for a sexually violent 

offense as defined in Welfare and Institutions Code section 6600, 

subdivision (b). (See Stats. 2019, ch. 590, § 1.) Because the statutory 

amendments mitigate and reduce punishment respectively, defendant is 

entitled to their benefit. (In re Estrada (1965) 63 Cal.2d 740, 742, 744–745.) 

The Attorney General argues we need not remand for resentencing

because the record shows the trial court would not have exercised its 

discretion to strike the prior serious felony enhancements. Essentially, the 

Attorney General argues that we can assume from the trial court’s comments 

at sentencing and its decision to run counts one and three consecutively 

rather than concurrently that it would not have exercised its discretion to 

reduce defendant’s sentence by striking the prior serious felony conviction

enhancements. 

We disagree that it is clear from the record that the trial court would 

not have stricken the enhancements pursuant to Senate Bill No. 1393. While 

the trial court spoke at the sentencing hearing about the pain defendant 

inflicted on his victims and defendant’s failure to reform after his first prison 
42

sentence, it also commented defendant is not “a mean man” and “has a 

disconnect that we can’t address.” The trial court emphasized that under the 

legislative scheme, it was required to impose “the incredible number that I 

have to give to [defendant] as a result of this offense.” Accordingly, we 

remand to allow the trial court to exercise its discretion whether to strike 

enhancements for the prior serious felony conviction. We express no opinion 

on how the trial court should exercise its sentencing discretion.

As to the one-year prison prior enhancements, defendant requests that 

we remand to permit the court to strike the sentences for his prior prison 

terms. We note neither party discussed whether defendant’s prior conviction 

for violation of section 288, subdivision (a) qualifies as a “sexually violent 

offense” within the meaning of Welfare and Institutions Code section 6600. 

(See § 667.5, subd. (b) [one-year enhancement for prior prison term applies 

only if defendant served a prior prison term for a sexually violent offense as 

defined in Welf. & Inst. Code, §§ 6600, 6600.1].) Because we must remand for 

the trial court to exercise its discretion with regard to the five-year 

enhancements for the prior felony conviction, we direct the trial court to also 

determine on remand whether the stayed one-year prison prior 

enhancements should be stricken. We express no opinion on this issue.

III. DISPOSITION

We remand for the trial court to exercise its discretion under 

section 1385 whether to strike defendant’s enhancements for his prior serious 

felony conviction, and to determine whether the one-year enhancements

imposed and stayed pursuant to section 667.5, subdivision (b) should be

stricken. The judgment is otherwise affirmed.

We observe that the abstract of judgment reflects defendant’s sentence 

on counts one, two, and three were 25 years to life rather than 50 years to 
43

life. On remand, the trial court shall ensure the abstract of judgment 

correctly reflects defendant’s sentence. The trial court is directed to prepare 

an amended abstract of judgment and forward a certified copy to the 

Department of Corrections and Rehabilitation. 
44

SIGGINS, J.*

WE CONCUR:

HUMES, P. J.

LANGHORNE WILSON, J.

A151488

People v. Camphor

* Retired Presiding Justice of the Court of Appeal, First Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.