Filed 4/28/23 P. v. Dare CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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.

MARK ALAN DARE,

Defendant and Appellant.

 A164002

 (Humboldt County

 Super. Ct. No. CR1800523)

Defendant appeals from his conviction on several counts of felony child 

molestation, raising challenges based on (1) the admission and exclusion of 

certain evidence, (2) instructional error, (3) prosecutorial misconduct, (4) the 

alleged ineffective assistance of his trial counsel, and (5) cumulative error. 

Defendant also contends we must remand for resentencing in light of changes 

to Penal Code section 1170, subdivision (b) that became effective after his 

sentencing. We reject defendant’s challenges to his convictions, but conclude

that remand for resentencing is required based on the recent statutory 

changes affecting the trial court’s imposition of an upper term.

I. BACKGROUND

A. Factual Background

Dennis W. and W.D. were married in 1998. The couple had two 

daughters, Jane Doe 2 and Jane Doe 1, who were both born during the 

marriage. In 2004, Dennis and W.D. separated, and in 2005, they divorced. 
2

After Dennis and W.D. separated, W.D. began dating defendant. In 

2007, W.D. married defendant and moved into his home with her two 

daughters. Defendant’s teenage son also lived in the home. Dennis and W.D. 

initially shared custody of the girls, but in 2010, Dennis moved to Missouri. 

In December 2010, W.D. gave birth to her son; defendant was the baby’s

father. 

1. Jane Doe 2

Jane Doe 2’s earliest memory of sexual abuse dates back to when she 

was in second grade and was eight or nine years old. On multiple nights—

more than she could count—Doe 2 woke up in her bed1 to being touched and 

stimulated. Sometimes defendant would get into Doe 2’s bed with her; more 

often he would stand next to her bed and reach through the bars on the side 

of the bed. The abuse happened almost every night until it ended when she 

was in fourth or fifth grade. 

One time, defendant crawled up into Doe 2’s bed and laid down on her 

right side; another time he answered the phone while he was in bed with her. 

On one occasion, defendant touched her and then told her something about 

how glad he was that he could “calm [her] down.” 

The touching was mostly the same: while her sister slept on the bottom 

bunk, sometime after 8:30 or 9:00 p.m. until 11:00 or 11:30 p.m., defendant

would first rub Doe 2’s back, then rub her clitoris in a stimulating motion. 

Sometimes he also touched her breasts and buttocks beneath her clothes. 

When the abuse was happening, Doe 2 felt “super confused” and “didn’t 

know what was going on.” She had a feeling it was bad because it would 

happen at night when no one was around. She posted to a discussion forum 

1 Doe 2 shared a bunk bed with her little sister, Doe 1. Doe 2 slept in 

the top bunk and Doe 1 slept in the bottom bunk. 
3

on a menstrual cycle tracking application called “Pink Pad” about what had 

been happening to her and asked whether it was rape. Someone responded 

and told her she was being molested and needed to talk to someone about it. 

Doe 2 did not feel like she could tell any adults or her school at the time, but 

in fifth grade she told her friend she was being molested. Doe 2 also disclosed

the abuse to a friend and the friend’s mother in her sophomore or junior year 

of high school. 

2. Jane Doe 1

Beginning before her younger brother was born in 2010, defendant 

touched Jane Doe 1 sexually approximately two or three times per week at 

night when she was in her bed. During one incident she remembered, Doe 1 

was barely asleep and was awakened by defendant’s mouth on her bare 

vagina. Sometimes he would put his finger in her vagina and grope her legs. 

One time, she awakened to defendant placing her hand on his penis. Another 

time, he put his mouth on her vagina and put his finger in her vagina. 

Doe 1 also recalled a time when defendant touched her in her mother 

and defendant’s bedroom. She was lying on the bed with her pants and 

underwear off and defendant put his mouth on her vagina.

Another time when Doe 1 was preparing to take a shower, defendant 

put her on the countertop next to the sink and “started doing oral.” He put 

his mouth on her vagina and put his finger in her vagina. 

During most of these touching incidents, defendant would not say 

anything, but sometimes he would say, “ ‘Good girl.’ ” Once, he told her it 

was a game and she could not tell anyone. After many of the incidents he 

would buy her toys—she remembered receiving “a lot of My Little Ponies.” 

When she was young, Doe 1 did not realize the sexual abuse was wrong 

and did not disclose it at that time. At some point, Doe 1 tried to tell a 
4

counselor at school about the abuse, but she decided not to disclose when the 

counselor informed her they would need to tell her parents if someone was 

hurting her. In eighth grade, Doe 1 disclosed to her basketball coach that she 

had been physically and sexually abused by her stepfather when she was 

younger. Although he was a mandated reporter, her coach did not report the 

disclosure because of her demeanor and the nonchalant manner in which she 

made the disclosure.2

3. Formal Reports of Abuse

Jane Doe 1 disclosed the abuse to a teacher in her freshman year of 

high school. The teacher escorted Doe 1 to the school office, where she 

disclosed to school counselors and then the school police officer. The school 

informed Dennis W. of Doe 1’s disclosure, and Dennis discussed it with Doe 1. 

Jane Doe 2 reported the molestation to law enforcement in early 2018,

after learning about Doe 1’s disclosure. 

4. Investigation and Searches

An investigator with the district attorney’s office conducted a search of 

defendant’s cell phone and reviewed a timeline of the events of January 22,

2018. He found a text message sent from defendant to W.D. at 7:44 p.m.,

asking if the life insurance was “ ‘paid up.’ ” Also at 7:44 p.m., there were 

Google searches for “Suboxone,” “Suboxone, lethal dose,” and “bupe.” 

Immediately thereafter was a responsive text from W.D. confirming the life 

insurance was paid up, followed by a text from defendant to W.D. stating: 

“ ‘Good. If somebody shoots me or whatever.’ ” Thereafter, there was a 

search for “ ‘Bupe, . . . ‘Suboxone and Xanax[???] deadly[?] safe[?]’ ” The 

2 The basketball coach testified at trial that Doe 1 disclosed she was 

abused but he did not know whether it was sexual in nature. On further 

examination, he conceded he had previously told an investigator it was 

“sexual” abuse. 
5

investigator knew “ ‘bupe’ ” to be a slang term for Suboxone based on his 

training and experience. 

Detective Donald Rowberry, who was qualified at trial as an expert in 

computer forensics and child pornography, performed searches of defendant’s 

computer hard drives. Rowberry located 18 visits to the website 

“motherless.com,” 16 of which were associated with the user name “M. Dare” 

from October 2011; 34 searches for website links related to “motherless.com” 

on the computer’s search history from the deleted or “unallocated” space on 

the hard drive from October 2011; and query searches within the 

“motherless.com” website for the search terms “ ‘young teen’ ” and “ ‘teen.’ ” 

Rowberry testified that in his experience, the only times he had seen 

motherless.com show up in a web history is during a child pornography or 

child molestation investigation. Rowberry also discovered several Google 

searches regarding the statute of limitations for molestation conducted on 

September 26, 2013; two video clips which he classified as “child 

pornography” on the unallocated space; and a JPEG file in note format 

stating, “ ‘Mark, my husband, please make sure you keep yourself in check 

while on this computer. I’ve gone through it, and I think I cleared the 

disgusting things you had hidden. This reminder is out of love and nothing 

more.’ ” 

5. Procedural History

On October 25, 2019, the Humboldt County District Attorney filed a

first amended information charging defendant with two counts of oral 

copulation or sexual penetration with a child 10 years old or younger as to 

Jane Doe 1 for the year 2010 (Pen. Code, § 288.7, subd. (b); counts 1 & 2); 

continuous sexual abuse of a child under 14 years old as to Jane Doe 1 for the 

years 2010 to 2012 (id., § 288.5, subd. (a); count 3); and continuous sexual 
6

abuse of a child under 14 years old as to Jane Doe 2 for the years 2008 to 

2010 (id., § 288.5, subd. (a); count 4). Special allegations were included as to 

counts 3 and 4 that defendant had substantial sexual conduct with the 

victims who were under 14 years old (id., § 1203.066, subd. (a)(8)), and as to 

all counts, that defendant committed the offenses against more than one 

victim under the age of 14 years within the meaning of Penal Code 

section 667.61, subdivisions (j)(2) and (e). The day before trial, the 

prosecution dismissed count 3 and orally amended count 1 to specify oral 

copulation as the prohibited act, and count 2 to specify sexual penetration as 

the prohibited act.

After deliberating less than two hours, a jury found defendant guilty on 

counts 1, 2, and 4, and found true the special allegations. On October 29, 

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

life in prison. The court struck the enhancement under Penal Code 

section 667.61, subdivision (j)(2) upon agreement of the parties. Defendant 

timely appealed. 

II. DISCUSSION

A. Evidence of Prior Sexual Conduct

Defendant first contends the trial court prejudicially erred by striking 

Doe 2’s cross-examination testimony that when she was seven or eight years 

old, her young friend asked Doe 2 to “kiss or something her pubic area”; that 

Doe 2 talked with her parents about it; and that W.D. told Doe 2 it was 

wrong. Defendant asserts such evidence was highly relevant to Doe 2’s 

credibility and its exclusion violated his federal and state constitutional 

rights in a close case which hinged entirely on the credibility of Does 1 and 2. 

1. Additional Background
7

On direct examination, Doe 2 testified that her first memory of 

defendant’s molestation was when she was in second grade; she was eight or 

nine years old. After Doe 2 described the acts of molestation, the prosecutor

asked Doe 2 how she felt when the abuse was happening to her. Doe 2 

responded: “I was super confused. I didn’t know what was going on. I had a 

feeling that it was, like, bad because it would happen at night and when 

nobody was around, so I had a weird inkling about it, so I ended up looking 

into it myself.” 

Later, on cross-examination, Doe 2 testified that when she was seven or 

eight years old she had a playdate with a friend who asked her to “kiss or 

something her pubic area or something.” Doe 2 did not remember doing it, 

but she did talk to her parents about it. Doe 2 testified: “I just remember 

them asking me what had happened, and then I told them and then they told 

me like, you don’t do that with your friends, kind of thing, not to touch people 

there if I don’t want to.” She also testified the conversation “never went 

beyond that one discussion.” 

After Doe 2 completed her testimony, the prosecutor moved to strike 

the evidence regarding Doe 2’s friend and her subsequent conversation with 

her parents. The prosecutor argued that she was never given any discovery 

on the issue and allowing the testimony directly contravened the trial court’s 

ruling that the defense was not allowed to bring up any prior sexual act of the 

complaining witnesses. 

Defense counsel argued the testimony did not involve a sexual act, but 

only “age-appropriate playful conduct between two 7- or 8-year olds.” In any 

event, defense counsel asserted the evidence went “directly to impeachment 

and credibility” because Doe 2 had a conversation with her parents about 

appropriate and inappropriate touching. He argued the evidence was 
8

relevant to “impeach her based on her testimony that she had no idea what 

was happening to her.” 

The trial court excluded the evidence, explaining: “I don’t know how 

you can qualify ‘please kiss my private part,’ . . . as nonsexual. Definitely 

falls within that frame. You can qualify it as children not necessarily 

knowing the full ramification of what they were doing, but that would 

certainly land within the parameters of the Motion in Limine.” 

The trial court subsequently instructed the jury: “Ladies and 

gentlemen, yesterday you heard testimony involving a young person . . . and 

the alleged or the conduct was when Jane Doe was 7 or 8 and then a 

subsequent conversation with Dennis and [W.D.]. [¶] Ladies and gentlemen, I 

am striking that testimony from the trial. You are not to consider it for any 

purpose. I am asking you to set it aside and not use it in your deliberation, 

and it will not be referred to during the rest of the trial because it is 

irrelevant.” 

2. Analysis

Defendant contends the trial court erred because (1) Doe 2’s testimony 

was not evidence of sexual conduct, and (2) it was critically important to the 

jury’s evaluation of her credibility. 

Generally, evidence of a complaining witness’s prior sexual conduct is 

inadmissible in a sex crimes case, but a limited exception allows such 

evidence to be admitted if it is relevant to the victim’s credibility. (Evid.

Code, §§ 1103, subd. (c) & 782, subds. (a), (c)(1).) In a prosecution under 

Penal Code section 288.5, “Evidence Code section 782 provides for a strict 

procedure that includes a hearing outside of the presence of the jury prior to 

the admission of evidence of the complaining witness’s sexual conduct. 

[Citation.] Evidence Code section 782 is designed to protect victims of 
9

molestation from ‘embarrassing personal disclosures’ unless the defense is 

able to show in advance that the victim’s sexual conduct is relevant to the 

victim’s credibility. [Citation.] If, after review, ‘the court finds the evidence 

relevant and not inadmissible pursuant to Evidence Code section 352, it may 

make an order stating what evidence may be introduced and the nature of 

the questions permitted.’ ” (People v. Bautista (2008) 163 Cal.App.4th 762, 

782; People v. Mestas (2013) 217 Cal.App.4th 1509, 1514 (Mestas).) We 

review the trial court’s decision to exclude such evidence for an abuse of 

discretion. (Bautista, at p. 782.) 

First, we reject defendant’s contention that the trial court’s decision to 

exclude Doe 2’s testimony violated his federal due process rights and his right 

to present a defense. “[T]he routine application of provisions of the state 

Evidence Code law does not implicate a criminal defendant’s constitutional 

rights.” (People v. Jones (2013) 57 Cal.4th 899, 957.) “[O]nly evidentiary 

error amounting to a complete preclusion of a defense violates a defendant’s 

federal constitutional right to present a defense.” (People v. Bacon (2010) 

50 Cal.4th 1082, 1104, fn. 4.) At most, the exclusion of Doe 2’s brief 

testimony limited defendant’s ability to impeach one vague statement about 

whether she understood what defendant was doing to her and whether it was 

appropriate. There was no violation of defendant’s constitutional rights. 

(Mestas, supra, 217 Cal.App.4th at p. 1517.) 

Second, defendant has not shown the trial court abused its discretion in 

excluding the evidence under Evidence Code section 782. Although he 

contends the conversation between Doe 2 and her friend was not evidence of 

“sexual activity,” Doe 2’s memory was vague as to whether she had actually 

engaged in any kissing or touching with her friend. In any event, courts have 

construed “sexual conduct” within the meaning of Evidence Code section 782
10

broadly. (See People v. Franklin (1994) 25 Cal.App.4th 328, 334, fn. omitted

(Franklin) [“[S]exual conduct . . . encompasses any behavior that reflects the 

actor’s or speaker’s willingness to engage in sexual activity. The term should 

not be narrowly construed.”]; People v. Casas (1986) 181 Cal.App.3d 889, 895 

[verbal communication between sexual assault victim and third party 

reflected her willingness to have sex for money].)

Third, regardless of whether the evidence qualifies as prior sexual 

conduct, it was irrelevant. (See Franklin, supra, 25 Cal.App.4th at p. 335

[court need not decide whether certain evidence constituted sexual conduct 

because it was properly excluded on grounds it was irrelevant and would 

require undue consumption of time].) Defendant argues the testimony was 

relevant to impeach Doe 2’s testimony that she was confused about 

defendant’s acts of molestation and “didn’t know what was going on.” But 

evidence that Doe 2’s parents told her when she was seven or eight years old 

that she should not let a friend touch or kiss her “private parts” does not tend 

to prove that she should have known at age eight or nine that her 

stepfather’s acts of abuse fell in the same category.

Defendant’s attempt to draw an analogy between the exclusion of 

Doe 2’s testimony and cases such as People v. Adams (1988) 198 Cal.App.3d 

10, 16, 18–19 and Franklin, supra, 25 Cal.App.4th 328, in which courts 

excluded prior false claims of sexual assault, is unavailing. Evidence that a 

victim has previously made a false allegation about similar sexual abuse is 

clearly more relevant to a victim’s credibility than the evidence in this case. 

“The fact that a witness stated something that is not true as true is relevant 

on the witness’s credibility whether she fabricated the incident or fantasized 

it.” (Franklin, at p. 335.) Here, however, there was no evidence that Doe 2 

made a prior false allegation of sexual abuse. Rather, the evidence defendant
11

sought to introduce concerned her understanding as a very young child about 

whether a particular sexual act with a peer was “wrong” or “bad.” As we 

have already explained, that conversation had little bearing on the veracity of 

her testimony that she was confused about sexual touching and acts of 

molestation by her stepfather.

In any event, even if the exclusion was error, it was harmless. Ample 

evidence was introduced to the effect that Doe 2 suspected, knew, or learned 

that defendant’s acts were wrong before she disclosed the abuse. First, Doe 2 

herself stated she “had a feeling that it was . . . bad” and “had a weird inkling 

about it” while the abuse was happening. Further, W.D. testified that she 

had conversations with her daughters, especially Doe 2, about inappropriate 

touching in their “ ‘no-no’ ” areas, including below the belt and their breast

area. W.D. also told the girls that no one could touch these areas except their 

mother, father, and doctors. Both of these conversations suggested much 

more directly and strongly that the acts of molestation were wrong than the 

brief conversation about Doe 2’s friend when she was seven or eight years old. 

Moreover, W.D. testified that on multiple occasions, Dennis threatened to kill 

defendant if he ever touched the girls, and that Dennis said that in front of 

the girls. Finally, when she was in the fifth grade, Doe 2 posted to a 

discussion forum about what was happening to her and was told she was 

being molested and needed to tell someone. Given the substantial evidence 

suggesting Doe 2 knew or had reason to suspect defendant’s behavior was 

“wrong” but still delayed reporting the abuse for many years, it is not likely 

defendant would have received a different result had the jury been allowed to 

consider her conversation with her young friend and her parents when she 

was seven or eight years old. (People v. Watson (1956) 46 Cal.2d 818, 836 

(Watson).) 
12

Finally, the evidence of defendant’s guilt was overwhelming. Both girls 

testified about defendant’s abuse; the jury was allowed to consider Doe 1’s 

testimony regarding defendant’s molestation as propensity evidence in 

deciding the charge involving Doe 2. There was ample corroboration of both 

girls’ testimony as they both disclosed the abuse informally to others, and 

those individuals testified at trial. Further, the evidence that defendant had 

conducted multiple searches of a commercial pornography website using the 

terms “ ‘teen’ ” and “ ‘young teen,’ ” and searched for the statute of limitations 

related to molestation constitutes strong evidence of guilt. On this record, it 

is not reasonably probable the excluded testimony would have changed the 

outcome. 

B. Character Evidence

Next defendant contends the trial court erred by allowing the jury to 

hear inflammatory and inadmissible character evidence that he had an affair, 

paid a prostitute for oral sex, “trolled” prostitution websites, and met women 

on the Internet for sex. Defendant asserts the evidence served only to 

portray him as a sexual deviant and improperly sought to impeach testimony 

of his good character with specific instances of conduct. 

1. Additional Background

The prosecution filed a motion in limine seeking to introduce, pursuant 

to Evidence Code section 1101, subdivision (b), “evidence of the defendant’s 

internet search history.” Defendant objected and sought an Evidence Code 

section 402 hearing (section 402 hearing) and an offer of proof to show “any

relationship between any of the pornography, or pornographic site search 

history, located on the defendant’s computer to pedophilia and the crimes [of 

which he was accused].” 
13

At the section 402 hearing, Detective Rowberry testified about searches 

located on defendant’s computer for the websites motherless.com, 

Backpage.com, and Craigslist. Rowberry testified the Backpage.com and 

Craigslist searches were for “potential prostitution” and confirmed both sites 

were categorized as human trafficking sites. At the conclusion of the hearing, 

the trial court excluded evidence of searches on Craigslist, but allowed the 

searches on Backpage.com as character evidence in rebuttal. 

At trial, W.D. testified on direct examination that she and defendant 

had a “[f]un, adventurous, good, satisfying” sex life. She shared specific 

information about her sex life with defendant, including details about their 

typical sexual routine, use of pornography, communication about sex, and 

boundaries they had established in their sexual relationship. On crossexamination, W.D. confirmed she had a “normal, satisfying sex life” with 

defendant. 

The prosecutor asked defendant if he had heard W.D.’s testimony “that 

the two of you have a fulfilling and satisfying sex life.” Defendant responded 

that he had, and he agreed with her. He then admitted he had an affair 

outside of his marriage. When asked if he had affairs with more than one 

person, he responded he “talked to a lot of people” and “did a lot of e-mailing” 

with people through Craigslist, but he did not meet all of them; there was one 

person with whom he spent a lot of time and had a sexual affair. He 

confirmed W.D. would be telling the truth if she said he was meeting up with 

girls on Craigslist and cheating on her. Defense counsel did not object to this 

line of questioning. Defendant denied paying any of the women with whom 

he had affairs. 

The prosecution introduced evidence of defendant’s Backpage.com 

searches through defendant’s own testimony. The prosecutor asked 
14

defendant whether he had visited Backpage.com, and he responded: “Yeah. 

I’d seen a news story on it and I looked through it. I didn’t utilize it for 

anything, though. [¶] I was just—you know, like you said, it was a human 

trafficking thing. There was a news story on it so I looked to see in different 

places what was there, and I couldn’t tell. It looked like a bunch of 

advertisements for prostitutes, but I didn’t utilize it.” When asked how many 

times he visited Backpage.com looking at prostitutes, defendant said: “I don’t 

know. I wasn’t, like, looking at prostitutes through the site. They actually 

have a section that’s purported to be like a Craigslist thing. That’s supposed 

to be amateur people or whatever, so I looked at it, but I don’t think that it 

was actually active. I don’t know. I couldn’t tell.” Defendant denied meeting 

anyone off of Backpage.com. 

The prosecution sought permission to call Dorothy G. as a rebuttal 

witness, who would testify defendant had hired her to orally copulate him on 

a number of occasions. Defendant objected under Evidence Code section 352, 

arguing the evidence was not proper impeachment, was irrelevant, and was 

cumulative to other testimony. The prosecutor argued that defendant had 

presented character witnesses and denied during cross-examination that he 

ever used a prostitute or paid for sex. The prosecutor further argued that 

soliciting a prostitute is a crime of moral turpitude and that character 

witnesses may be impeached by such crimes. Finally, the prosecutor 

contended, Dorothy G.’s testimony would contradict defendant’s testimony 

that his sex life was normal. The trial court allowed her testimony, reasoning 

that the defense had asked W.D. questions about their sex life and argued 

defendant would not have time for prostitution, the evidence might go to his 

impulsive behavior, character witnesses can be impeached by crimes of moral 

turpitude, and Dorothy G.’s testimony would contradict defendant’s 
15

testimony that he never paid for sex. The trial court suggested it might 

exclude evidence as to the nature of the sex act—that it was oral sex—but 

defense counsel responded that was not necessary as it would not confer any 

additional stigma. 

Dorothy G. testified that she worked as a prostitute. Defendant picked 

her up more than three times. She would perform oral sex on defendant for 

“about” $60. Defendant denied ever seeing Dorothy G. prior to her testimony, 

denied paying her for sex, and reiterated his prior testimony that he had 

never paid for sex. 

2. Analysis 

As an initial matter, defendant concedes he has forfeited some of his 

challenges to this evidence by failing to object in the trial court. Defendant 

did not object to Dorothy G.’s testimony or evidence of his extramarital affairs 

on the basis that it was inadmissible character evidence. Defendant urges us 

to exercise our discretion to consider these arguments notwithstanding his 

failure to object, but does not articulate any sound reason for doing so. 

(Evid. Code, § 353, subd. (a); People v. Clark (1992) 3 Cal.4th 41, 125–126 

[absent a timely and specific objection on grounds urged on appeal, appellate 

court will not review trial court’s admissibility ruling].)

Even if defendant did not forfeit his objections, however, the trial court 

did not abuse its discretion in allowing the evidence. When a testifying 

defendant in a criminal case offers evidence of specific conduct affecting his 

credibility and good moral character, the prosecution is not precluded from 

impeaching him with evidence of relevant specific instances of his conduct. 

(People v. Lankford (1989) 210 Cal.App.3d 227, 235–240; Evid. Code, § 780 

[fact finder may consider matters relevant to truthfulness of witness 

testimony].) 
16

Here, defense counsel elicited extensive testimony from W.D. about the 

nature of her sexual relationship with defendant to prove that she and 

defendant had a normal, satisfying sexual relationship, and defendant 

confirmed and agreed with her testimony. Evidence that defendant was 

looking at Backpage.com for prostitutes, having affairs outside of his 

marriage, and paying a prostitute for sex was thus appropriately admitted to 

challenge defendant’s credibility, notwithstanding that it also rebutted his 

character evidence in the form of specific incidents of conduct. Moreover, the 

evidence that defendant engaged in conduct involving moral turpitude (i.e., 

prostitution), was admissible to impeach his credibility as a testifying 

witness. (People v. Wheeler (1992) 4 Cal.4th 284, 295–296 [evidence of 

misconduct involving moral turpitude may be admissible for impeachment 

because it may suggest a willingness to lie]; People v. Clark (2011) 52 Cal.4th 

856, 931 [“A witness may be impeached with any prior conduct involving

moral turpitude whether or not it resulted in a felony conviction, subject to

the trial court’s exercise of discretion under Evidence Code section 352.”];

People v. Chandler (1997) 56 Cal.App.4th 703, 709 [prostitution is a crime of 

moral turpitude].) In addition, defendant denied paying any of the women 

with whom he had an affair. Dorothy G.’s testimony was relevant and 

admissible to directly impeach that testimony. (Evid. Code, § 780, subd. (i).) 

Regardless, even if the trial court erred in admitting the evidence, we 

conclude the error was harmless on this record. First, as we have already 

discussed, the evidence against defendant was so strong as to be 

overwhelming. Moreover, evidence that he had affairs with adults outside of 

his marriage, was looking for prostitutes on a website, and hired an adult 

prostitute on a few occasions was of minor significance compared with the 

magnitude of the charged offenses. (See People v. Marks (2003) 31 Cal.4th 
17

197, 229.) On this record, it is not reasonably probable defendant would have 

achieved a more favorable outcome had the evidence been excluded and, 

accordingly, any error in admitting it was harmless. (Watson, supra,

46 Cal.2d at p. 836.)

C. Instruction on Consciousness of Guilt

Defendant next argues the trial court erred by instructing the jury that 

it could consider evidence that he searched the Internet for lethal doses of 

medications after hearing of the abuse allegations as consciousness of guilt. 

Defendant contends the instructional error requires reversal under state law

because there was no substantial evidence he attempted to commit suicide

and he was prejudiced by the instruction.

3

In a motion in limine, the prosecution sought to introduce evidence that 

after W.D. told defendant about the accusations, he texted her asking if the 

life insurance was “ ‘paid up,’ ” then conducted Internet searches for lethal 

doses of Suboxone and Xanax. The prosecution argued the evidence reflected 

consciousness of guilt. Defense counsel objected that drawing an inference of 

consciousness of guilt from the computer searches was “pure speculation”

and was prejudicial.

After conducting some legal research, the trial court stated its intent to 

allow the evidence and added it would read CALCRIM No. 372 if requested. 

At trial, the court read the following modified instruction to the jury: “If the 

defendant made plans to commit suicide after he was accused of the conduct, 

3 Although defendant states cursorily that the trial court erred by 

admitting evidence of his searches for lethal doses of the medications, he does 

not develop the argument. Accordingly, we address only his claim of 

instructional error. (People v. Stanley (1995) 10 Cal.4th 764, 793 [when 

appellant fails to support a point with reasoned argument and citations to 

authority, we treat the point as waived].)
18

that conduct may show that he was aware of his guilt. If you conclude the 

defendant made plans to commit suicide, it is up to you to decide the means[4]

and importance of that conduct. However, evidence that the defendant made 

plans to commit suicide cannot prove guilt by itself.” 

The court has a sua sponte duty to instruct on flight whenever the 

prosecution relies on evidence of flight to show consciousness of guilt. (Pen. 

Code, § 1127c; People v. Abilez (2007) 41 Cal.4th 472, 521–522.) “ ‘ “ ‘[F]light 

requires neither the physical act of running nor the reaching of a far-away 

haven. [Citation.] Flight manifestly does require, however, a purpose to 

avoid being observed or arrested.’ ” ’ [Citation.] While physical flight to 

evade capture or escape from custody are two obvious examples of relevant 

conduct, the courts have long held ‘ “[a]ny conduct of a defendant subsequent 

to the commission of the crime tending to show consciousness of guilt is 

relevant and admissible . . . .” ’ [Citation.] ‘[T]here need only be some 

evidence in the record that, if believed by the jury, would sufficiently support 

the suggested inference [of consciousness of guilt].’ ” (People v. Pettigrew 

(2021) 62 Cal.App.5th 477, 497–498, italics added by Pettigrew (Pettigrew).) 

“ ‘The evidentiary basis for the flight instruction requires sufficient, not 

uncontradicted evidence.’ ” (Id. at p. 499.) 

We review a claim of instructional error de novo. (People v. Mitchell 

(2019) 7 Cal.5th 561, 579.) Reversal is required only if the instructional error 

resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Watson, supra, 

46 Cal.2d at p. 836.) 

In Pettigrew, the court held it was error to instruct on flight, pursuant 

to CALCRIM No. 372, where there was no evidence the defendant attempted 

4 The written instruction provided to the jury stated this word was 

“meaning.” 
19

to flee after the crime or escape from custody after his arrest. (Pettigrew, 

supra, 62 Cal.App.5th at p. 499.) After his arrest, however, the defendant 

twice tried to hang himself with his clothing in his jail cell. (Id. at p. 488.) 

Under the circumstances, the Pettigrew court determined it would have been 

appropriate for the trial court to draft an instruction based on the pattern 

instructions and relevant cases regarding the defendant’s suicide attempts as 

evidence of consciousness of guilt. (Id. at pp. 499–500.)

Defendant contends that here, unlike in Pettigrew, there was no 

substantial evidence that he attempted to commit suicide, only evidence that 

he conducted an Internet search. Defendant fails to acknowledge, however, 

that in addition to the evidence that he conducted repeated searches for 

lethal doses of medications after asking if his life insurance was paid and 

immediately after hearing about the abuse allegations, his own testimony 

affirmed that he was considering suicide in response to the disclosures. In 

explaining why he conducted the search, defendant testified “it was a 

technique [he] used growing up when [his] life was out of control.” He would 

“carry a razor blade in [his] wallet, and when [he] didn’t have control over the 

situation, [he] would look at that and [he] would say [he] could take control of 

[his] life that way.” He knew that he could “stop things” so it “popped into 

[his] head” and he became “curious on how much [Suboxone] you would have 

to take.” When asked if he was contemplating killing himself when he 

conducted the searches, he responded his “life had suddenly gone out of 

control,” he had “those same thoughts,” and he “thought, Well, how would I? 

And that was a way . . . .” Defendant also testified he had a prescription for 

and was taking Suboxone. Although defendant denied trying to kill himself 

and stated he had “had three years to follow through, and [is] not interested 

in doing it” because it would not be “a good example to [his] kids,” a jury 
20

could reasonably infer from defendant’s actions and statements that at the 

time of the disclosures, he was making plans to commit suicide by 

researching the amount of a drug already in his possession that he would 

need to take to kill himself. Given the timing of these thoughts and Internet 

searches immediately after he learned Does 1 and 2 had disclosed the abuse 

to law enforcement, the jury could reasonably infer from his testimony that 

defendant’s contemplations of suicide were motivated, at least in part, by an 

effort to evade prosecution or responsibility for the abuse. 

Thus, we conclude defendant’s testimony together with the evidence of 

his Internet searches could support a reasonable inference defendant was 

making plans to commit suicide, reflecting consciousness of guilt. The trial 

court instructed the jury with a modified version of CALCRIM No. 372, that

it could use such evidence for the limited purpose of deciding whether

defendant had made plans to commit suicide and if so what importance those 

plans had. It further instructed that evidence defendant made such plans 

could not prove guilt by itself. On this record, defendant has not shown the 

instruction was erroneous as a matter of law or unsupported by substantial 

evidence. 

In any event, even if the trial court erred in instructing the jury with 

CALCRIM No. 372, we conclude the error was harmless. As we have 

previously discussed, in light of the overwhelming evidence of defendant’s 

guilt, including the extensive testimony by Doe 1 and Doe 2, which the jury 

obviously credited, and the substantial corroboration of their testimony, there 

is no reasonable probability the jury would have reached a more favorable

result in the absence of the instruction. 

D. Prosecutorial Misconduct
21

Defendant next argues the prosecutor repeatedly engaged in 

misconduct by referring to the two videos located by Detective Rowberry on 

defendant’s computer as “child pornography” during her cross-examination of 

W.D. Defendant asserts the characterization was an attempt to “smuggle[] in 

inadmissible expert opinion that could not be argued openly and legally.” 

1. Additional Background

As discussed above, the trial court conducted a section 402 hearing

with the prosecution’s expert witness, Detective Rowberry, to address the 

prosecution’s motion to admit evidence of child pornography found on 

defendant’s computer under Evidence Code sections 1108 and 1101,

subdivision (b). At the conclusion of the section 402 hearing, the court ruled 

that two videos (and other evidence) were admissible under sections 1108 and 

352. 

After several trial witnesses had testified, but prior to Rowberry’s 

testimony, defense counsel moved to exclude any reference to the two videos 

as “child pornography” because the question whether such material was in 

fact child pornography was for the jury to determine. Defense counsel argued 

that “even in questioning” it would be “conclusionary in [sic] the 

determination that should be left in the hands of the jury.” The trial court 

ruled the parties should treat the topic as they would the identification of 

drugs by an expert at a preliminary hearing. Specifically, the court directed 

that the expert could “go into his training and experience . . . and he should 

state it. It should be couched that this is his opinion rather than it is a 

conclusion. And he does have training in child pornography and the 

identification of child pornography so that we can use those words.” The 

court agreed that the ultimate issue of whether the evidence constituted child 

pornography was up to the jury. 
22

During her examination of Rowberry, the prosecutor asked whether 

Rowberry would classify the two videos as child pornography based on his 

training and experience. He responded: “I would say the first one where you 

can see her breasts. And then the second, I would say, is basically called 

child pornography if it doesn’t show any genitalia or anything but it’s related: 

then we call it child pornography.” 

Later, during the defense case, W.D. testified on direct examination

that she had asked defendant not to watch pornography because it was not 

appropriate for their relationship. She found and deleted adult pornography 

on his computer, but she did not find images of child or teenage pornography. 

On cross-examination, the prosecutor asked W.D. a series of questions 

based on Rowberry’s testimony regarding the two videos he found on 

defendant’s computer. The prosecutor asked W.D. whether she was “aware” 

that the expert “found a video that he classified as child pornography” on one 

of the computers in her house. Defense counsel objected; the trial court 

directed counsel to “ask it a different way.” 

The prosecutor then asked whether W.D. had “heard that the People’s 

computer forensic expert found a video classified as ‘child pornography’ on a 

computer” in her home. Defense counsel again objected, and the trial court 

admonished the jury as follows: “Ladies and gentlemen, the objection here, 

as you heard in opening statements and as you’ll hear in closing statements, 

you are the deciders of the facts. You will decide whether or not it is child 

pornography. However, there was testimony provided by an expert and now 

this witness is being cross-examined. Please remember your duties in this 

case to determine the facts.” 

The prosecutor then asked W.D., “[N]ow that you’ve heard that an 

expert in this case found a video that that expert classified as child 
23

pornography and found it on a computer that’s associated with your husband, 

does that change your opinion of [him]?” After W.D. responded she would 

have to see the evidence herself, the prosecutor asked her about “another 

video” found by the expert, noting “the expert testified that that was child 

erotica.” 

At a morning recess in chambers after the cross-examination, the court 

addressed counsel, stating, “I wanted to make a record because crossexamining [W.D.] came close to the line that I previously made so I just want 

to reemphasize that with counsel.” The court admonished that “when talking 

about whether or not that is child pornography or child erotica or something 

else, counsel should be careful to couch it in terms as I’ve previously ruled, 

treating it much as if it were some other form of contraband that has not yet 

been decided. [¶] If you want to argue to the jurors that it’s pornography, 

that’s fine, but it should be presented to—by impeaching witnesses. It should 

be presented as suspected child pornography, but it should not be referred to 

in the conclusionary statements as child pornography. That is why I 

instructed the jury as I did. I don’t want to keep doing that.” The trial court 

then emphasized, “I think it’s impeachable evidence and you can certainly 

ask people about that, just be careful how you refer to it, not as a 

conclusionary statement, so I don’t have to reinstruct the jury each time.” 

The prosecutor then asked for clarification about how she could 

examine witnesses on the issue, and the court further explained its ruling, 

emphasizing that “it shouldn’t be in a conclusory statement as if this is 

already decided” because the determination whether the videos were child 

pornography was for the jury. 

2. Analysis
24

“ ‘A prosecutor who uses deceptive or reprehensible methods to 

persuade the jury commits misconduct, and such actions require reversal 

under the federal Constitution when they infect the trial with such 

“ ‘unfairness as to make the resulting conviction a denial of due 

process.’ ” [Citations.] Under state law, a prosecutor who uses deceptive or 

reprehensible methods commits misconduct even when those actions do not 

result in a fundamentally unfair trial.’ ” (People v. Salcido (2008) 44 Cal.4th 

93, 152.) 

Defendant argues the prosecutor committed misconduct during the 

cross-examination of W.D. by repeatedly referencing the expert’s opinion that 

the videos found on defendant’s computer were “child pornography,” in 

violation of the trial court’s prior rulings. Relying on People v. Villa (1980) 

109 Cal.App.3d 360, 365 (Villa), defendant contends the prosecutor’s repeated 

references to the videos as child pornography was an attempt to “smuggl[e] in 

by inference . . . claims that could not be argued openly and legally.” 

Villa, however, is inapposite. In that case, the prosecutor committed 

misconduct by making numerous speaking objections, inappropriate 

comments, and interrupting defense counsel’s closing argument with 

references to undisclosed evidence regarding the defendant’s prior sexual 

conduct. (Villa, supra, 109 Cal.App.3d at pp. 363–364.) The court concluded 

that the prosecutor’s insinuations that highly relevant and damaging 

evidence about the defendant’s prior sexual conduct existed but was not being 

presented to the jury was clear misconduct. (Id. at p. 364.) Moreover, the 

trial court’s usual instruction that counsel’s statements are not evidence 

could not cure the error because the court did not admonish the jury to 
25

disregard the prosecutor’s suggestions and in fact sustained the prosecutor’s 

objections accompanying his improper statements.

5 (Id. at pp. 367–368.) 

Here, by contrast, the prosecutor referred to an opinion already offered 

by the expert, not undisclosed evidence, and the trial court specifically

instructed the jury, during the prosecutor’s questioning, that the jury would 

determine the facts, including whether the evidence is child pornography.6

Moreover, while defendant contends the trial court “cautioned the prosecutor 

not to refer to the evidence as ‘child pornography’ ” and “warned the 

prosecutor that the questions should be couched in terms as the court had 

‘previously ruled,’ ” the colloquy between the court and counsel reveals that 

the trial court was clarifying its ruling with respect to how the parties should 

characterize the videos when examining witnesses. Indeed, in offering its 

explanation, the court began by telling counsel: “I wanted to make a record 

because cross-examining [W.D.] came close to the line that I previously made 

so I just want to reemphasize that with counsel.” Defendant does not point to 

any violations by the prosecutor after the court offered its warning. 

In any event, we conclude any error in referencing the expert’s opinion 

that the videos were child pornography was harmless. The trial court 

explicitly instructed the jury that “you are the deciders of the facts,” “You will 

5 Nonetheless, as the Attorney General observes, the Villa court 

concluded that despite the clear misconduct which had a significant impact, 

the error was harmless based on the “lopsided weight of the evidence,” where 

the defendant’s testimony was not convincing and the victim’s testimony was 

corroborated by other evidence. (Villa, supra, 109 Cal.App.3d at pp. 367–

368.) As to its harmless error analysis, the Villa case is similar to the 

circumstances of this case because the evidence against defendant is so 

strong.

6 For this reason, we find unpersuasive defendant’s reliance on the 

principle that a prosecutor’s argument to the jury incorporating statements of 

fact not in evidence constitutes misconduct. 
26

decide whether or not it is child pornography,” and reminded jurors of their 

“duties in this case to determine the facts.” We presume the jury followed 

this instruction. (People v. Parker (2022) 13 Cal.5th 1, 71.) On this record, to 

the extent the prosecutor’s questions constituted misconduct, and given the 

overwhelming evidence supporting the verdicts, defendant was not 

prejudiced. 

E. Ineffective Assistance of Counsel

Defendant argues his trial counsel committed six errors at trial that 

violated his federal and state constitutional rights and require reversal. 

Alternatively, he asserts, the errors require reversal under state law. 

Under the Sixth Amendment and the California Constitution, a 

criminal defendant has the right to the assistance of counsel. (U.S. Const., 

6th Amend.; Cal. Const., art. I, § 15.) “ ‘[T]he right to counsel is the right to 

the effective assistance of counsel.’ ” (Strickland v. Washington (1984) 

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

To establish an ineffective assistance of counsel claim, a defendant 

must show counsel’s performance fell below an objective standard of 

reasonableness under “prevailing professional norms” and, as a consequence, 

the defendant was prejudiced. (Strickland, supra, 466 U.S. at pp. 687–688; 

People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) The standard for 

prejudice is “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” (Strickland,

at p. 694.) “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (Ibid.; People v. Jennings (1991) 53 Cal.3d 334,

357.)

1. Failure to Follow Procedures Under Evidence Code 

Section 782
27

In his first argument presented in this appeal, defendant contends the 

trial court erred by excluding evidence that when Doe 2 was seven or eight 

years old, her young friend asked Doe 2 to “kiss or something her pubic area”; 

that Doe 2 talked with her parents about it; and that W.D. told Doe 2 it was 

wrong. Defendant asserts that to the extent this court concludes such 

evidence was subject to the requirements of Evidence Code section 782, 

defense counsel rendered ineffective assistance by failing to follow the 

procedures required for admission of that evidence under the statute. 

As we have explained above, however, regardless of whether Doe 2’s 

testimony constituted evidence of prior sexual conduct subject to Evidence 

Code section 782 requirements, it had minimal probative value with respect 

to her credibility. Because the trial court did not abuse its discretion in 

excluding the evidence, defense counsel was not ineffective for failing to 

follow the procedures of Evidence Code section 782.

2. Eliciting Prejudicial Expert Testimony Regarding 

Infrequency of False Reports of Child Molestation

Defendant next contends his trial counsel was ineffective for eliciting 

testimony from the prosecution’s child sexual abuse accommodation 

syndrome (CSAAS) expert on the infrequency of false reports of child 

molestation.7 During motions in limine, the trial court excluded expert 

testimony “regarding statistical percentages of false allegations” of child 

molestation. The trial court ruled “it is improper for [the] CSAAS expert or 

7 CSAAS evidence is admissible to disabuse jurors of common 

misconceptions about how child victims of sexual assault behave. (People v. 

McAlpin (1991) 53 Cal.3d 1289, 1300.) Testimony by an expert on CSAAS 

allows jurors to understand the reactions of children who have been the 

victims of sexual abuse, but it is inadmissible to prove that a victim’s claim of 

molestation is true. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069;

McAlpin, at pp. 1300–1301.)
28

any other expert to rely on statistics as to how often children in these 

situations lie.” 

When he cross-examined the prosecution’s CSAAS expert, defense 

counsel asked the expert whether he had ever worked with children “who 

claim to be sexually abused but as far as could be determined were not.” The

expert stated he did not recall that occurring. Defense counsel then asked 

whether the expert had any “experience with children who claimed to be 

abused but [the claim] was not substantiated.” Again, the expert did not 

recall that having occurred. When the expert asked if counsel was asking 

about false allegations, defense counsel confirmed he was. The expert said,

“It’s infrequent but it can happen.” Defense counsel then asked the basis for 

the statement that false allegations of child sexual abuse are infrequent. At 

that point, the prosecutor asked to approach. After a sidebar, the trial court 

instructed the jury: “Ladies and gentlemen, you are not to consider the 

testimony as to the frequency of reporting, either accurate or inaccurate.” 

Relying primarily on People v. Julian (2019) 34 Cal.App.5th 878 

(Julian), defendant contends his trial counsel rendered ineffective assistance 

by soliciting evidence the trial court had excluded about the infrequency of 

false child molestation allegations. In Julian, the CSAAS expert repeatedly 

testified to specific statistics supporting the rarity of false reports of child 

abuse based on various studies and articles. (Id. at pp. 883–884.) The 

appellate court concluded defense counsel was ineffective for failing to object

to the expert’s testimony, and the defendant was prejudiced because the case 

was close, the evidence in defendant’s favor was strong, and the expert’s 

repeated testimony regarding the rarity of false allegations “tipped the scales 

in favor of the People based on statistical studies that were irrelevant to the 

issue of Julian’s guilt or innocence.” (Id. at p. 888.) Specifically, the court 
29

noted, “Such evidence may not be prejudicial where it occurs in a slight 

passing reference by the expert. But here the jury was bombarded with it.”

(Ibid.) 

In this case, however, unlike in Julian, defendant cannot show he was 

prejudiced by counsel’s alleged deficient performance.

8 (Strickland, supra, 

466 U.S. at p. 697 [court need not assess deficient performance if ineffective 

assistance claim can be resolved due to lack of sufficient prejudice].) The 

reference to the infrequency of false allegations was exceptionally brief, the 

evidence of guilt was overwhelming, and the trial court instructed the jury

immediately after the testimony not to consider the testimony as to the 

frequency or infrequency of reporting and properly instructed the jury at the 

conclusion of trial on the use of expert CSAAS testimony and evaluation of 

witness credibility. On this record, defendant cannot show a reasonable 

probability the outcome of the trial would have been different in the absence 

of the purported error. 

3. Failure to Object to Character Evidence

As discussed above, we have already rejected defendant’s claim that 

reversal is compelled because the trial court admitted improper, 

8 Defendant also relies on People v. Lapenias (2021) 67 Cal.App.5th 162

and People v. Wilson (2019) 33 Cal.App.5th 559, but those cases are likewise 

unhelpful to defendant. In Lapenias, the court found the error in allowing 

expert testimony that false allegations were “ ‘rare’ ” was harmless because, 

like here, the CSAAS expert’s testimony was brief, the victim’s disclosure 

provided corroborative evidence of the defendant’s guilt, and the jury was 

properly instructed on use of the evidence. (Lapenias, at pp. 179–180.) 

Similarly, in Wilson, the appellate court concluded inadmissible statistical 

evidence regarding the infrequency of false abuse allegations resulted in no 

prejudice to the defendant where, among other things, the testimony on 

statistical evidence was brief and the victims testified extensively, allowing 

the jurors to assess their credibility. (Wilson, at pp. 571–572.) The same 

considerations apply here.
30

inflammatory, and irrelevant character evidence which served only to portray 

defendant as a “sexual deviant.” Defendant contends his trial counsel’s 

failure to object to evidence that he had an affair, contacted other women for 

prostitution, and trolled the Internet for prostitutes constituted ineffective 

assistance.

First, defendant’s trial counsel may have had a reasonable, tactical 

reason for not objecting to the evidence. (See, e.g., People v. Seumanu (2015) 

61 Cal.4th 1293, 1313, italics added by Seumanu [decision whether to object 

is a highly tactical decision that depends on “ ‘counsel’s evaluation of the 

gravity of the problem and whether objection or other responses would serve 

only to highlight the undesirable testimony’ ”].) Counsel’s defense theory 

relied in part on an argument that defendant’s sexual conduct with adults 

had no tendency to prove he was a pedophile because children were not 

involved. Counsel may have refrained from objecting to avoid the impression 

that he considered the evidence harmful, in contradiction of the defense. 

In any event, as we discussed above with respect to defendant’s 

evidentiary claim, we conclude any error in failing to object was harmless 

because the evidence against defendant was overwhelming and the evidence 

regarding prostitutes and affairs with adults outside of marriage was much 

less inflammatory than the charges in the case. Because it is not reasonably 

probable defendant would have achieved a more favorable outcome had the 

evidence been excluded, his ineffective assistance claim fails. (Strickland,

supra, 466 U.S. at p. 694.)

4. Failure to Object to Prosecutor’s Cross-examination 

We have also rejected above defendant’s argument that the prosecutor 

committed misconduct by repeatedly asking W.D. about the expert’s opinion 

that the videos found on defendant’s computer were child pornography. 
31

Defendant contends in the alternative that his counsel’s failure to object to 

the improper questions constituted ineffective assistance. Because we 

rejected defendant’s claim of prosecutorial misconduct and concluded 

defendant suffered no prejudice in light of the court’s instruction to the jury, 

we reject the ineffective assistance claim. 

5. Failure to Call Custodian of Records for Motherless.com

Defendant contends defense counsel failed to conduct an adequate 

investigation on behalf of his client. Specifically, defendant asserts his trial 

counsel should have called the custodian of records for motherless.com to 

testify the website was a federally regulated, adult pornography site.

During motions in limine when the parties and court were discussing 

the admission of search results from defendant’s computer, the trial court 

stated that evidence defendant viewed child pornography would be the most 

relevant, while evidence he viewed adult pornography would be least 

relevant. The court further stated that if the images recovered from 

defendant’s computer were found on a commercial website where the images 

are presumed to be adults, an expert would be required to identify the age of 

the models in order to argue the images were child pornography. 

At the section 402 hearing, Rowberry testified he was not familiar with 

title 18 United States Code section 2257 (section 2257), as it pertains to child 

pornography regulations on commercial Internet sites, and he did not know 

whether motherless.com was certified under section 2257 regarding the age 

of the models depicted. When Rowberry was cross-examined at trial, defense 

counsel moved to exclude Rowberry’s testimony. Counsel argued that during 

the section 402 hearing, he had asked Rowberry about section 2257 and 

whether the federal regulations require such websites to “keep records and 

have a custodian of records indicating that all models used and depicted are 
32

. . . 18 years of age or older.” Defense counsel argued that Rowberry had said 

he was not familiar, but would look into defense counsel’s question; then at 

trial, Rowberry “claim[ed] ignorance” and said he didn’t “understand that 

there are any regulations or rules.” Defense counsel told the court 

Rowberry’s testimony “puts me in a bind” and he had “been sucker punched 

by this witness” because he relied on Rowberry to look into the issue.

Counsel asked the court to exclude “his entire testimony.” 

The prosecutor argued that Rowberry had no obligation to investigate 

on behalf of the defense, a point conceded by defendant’s trial counsel. The 

trial court denied the motion, noting Rowberry was not an expert for the 

defense. The court further told defense counsel: “[Y]ou haven’t asked him 

whether or not motherless.com is a commercial website. I think that the fact 

that he doesn’t know more about the laws, the fact that you asked him to look 

at it and he said he didn’t do it, that all goes to his credibility. You can 

certainly ask those questions. You can ask him questions about what he 

knows about that website, but it does not mean his entire testimony is 

excluded.”

Defendant now contends his trial counsel admitted that he knew 

Rowberry was not under a duty to investigate on behalf of the defense and

that he knew there was a custodian of records at motherless.com. 

Accordingly, defendant argues, his trial counsel should have called the 

custodian of records to testify the website was federally regulated and 

required models to be 18 years of age or older. 

We disagree. First, defendant does not point to any evidence in the 

record that a custodian of records exists or could have been secured to testify

at trial. (See, e.g., U.S. v. Harden (9th Cir. 1988) 846 F.2d 1229, 1231–1232 

[ineffective assistance of counsel claim failed because there was no evidence 
33

in record that witness would testify].) Even assuming defense counsel was 

able to secure a custodian of records for motherless.com to testify about the 

site’s compliance with legal regulations, however, the evidence would have 

had minimal probative value. Rowberry would still have been able to testify 

that based on his experience, he had only ever seen motherless.com in child 

molestation investigations and that the search results from defendant’s 

computer revealed a search for the terms “ ‘teen’ ” and “ ‘young teen’ ” on the 

website. Moreover, Rowberry testified the website was a legal, commercial 

website. It is unlikely additional testimony from a custodian of records about 

its legal compliance would have made a difference in the jury’s assessment of 

defendant’s use of the site. Because there is no reasonable probability that 

such testimony would have changed the outcome at trial, defense counsel was 

not ineffective for failing to conduct the investigation and call the

hypothetical witness. 

6. Failure to Object to Restitution Fine

Finally, defendant contends his trial counsel rendered ineffective 

assistance by failing to request an ability-to-pay hearing on the imposition of 

a cumulative total of $5,070 in fines and fees under People v. Dueñas (2019) 

30 Cal.App.5th 1157. Since we must remand this matter for resentencing as 

we discuss further below, it is not necessary to address defendant’s claim at 

this time. At his resentencing on remand, defendant may make any 

appropriate motions. (People v. Buycks (2018) 5 Cal.5th 857, 893 [explaining 

full resentencing rule].) 

F. Cumulative Error

Defendant contends the cumulative effect of the multiple errors at trial 

identified above requires reversal of the judgment. We disagree. 
34

Under the cumulative error doctrine, “a series of trial errors, though 

independently harmless, may in some circumstances rise by accretion to the 

level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 

800, 844.) As we have discussed in detail above, we have rejected defendant’s 

individual claims of error, and accordingly, there is no prejudice to 

accumulate. Any potential errors we have considered separately and found to 

be harmless; we reach the same conclusion considering them collectively. 

G. Sentencing

Finally, defendant argues he must be remanded for resentencing in 

light of recent changes to the law affecting the trial court’s sentencing 

discretion. We agree. 

The trial court sentenced defendant to the upper term of 16 years for 

continuous sexual abuse of Jane Doe 2 (Pen. Code, § 288.5, count 4) based on 

the following aggravating factors cited in the probation report: (1) the crime 

involved great violence, bodily harm, the threat of great bodily harm or other 

acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules 

of Court,9 rule 4.421(a)(1));

10 (2) the victims were particularly vulnerable 

(rule 4.421(a)(3)); (3) the manner in which the offenses were carried out 

indicated “planning, some degree of sophistication”

11 (rule 4.421(a)(8)); 

(4) defendant took advantage of a position of trust or confidence 

(rule 4.421(a)(11)); and (5) defendant engaged in violent conduct indicating a 

serious danger to society (rule 4.421(b)(1)). The court acknowledged a single 

9 All references to rules are to the California Rules of Court. 

10 The court commented, “callousness. I think that’s the operative word 

in this particular instance.” 

11 The trial court noted it was not making a finding of professionalism. 
35

mitigating factor that defendant’s criminal history consisted of one 

misdemeanor conviction. (Rule 4.423(b)(1).) 

When defendant was sentenced, Penal Code section 1170, 

subdivision (b) gave the trial court broad discretion to determine which of 

three terms specified for an offense would best serve the interests of justice. 

(Pen. Code, former § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 14.) 

While this appeal was pending, Penal Code section 1170 was amended by 

Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567; Stats. 2021, 

ch. 731, § 1.3, effective Jan. 1, 2022.) As amended, Penal Code section 1170, 

subdivision (b) makes the middle term the presumptive sentence and permits 

imposition of an upper term sentence “only when there are circumstances in 

aggravation of the crime that justify” the upper term and only if “the facts 

underlying those circumstances have been stipulated to by the defendant, or 

have been found true beyond a reasonable doubt at trial by the jury or by the 

judge in a court trial.” (Pen. Code, § 1170, subd. (b)(2).) The parties agree, as 

do we, that revisions to Penal Code section 1170 are ameliorative within the 

meaning of In re Estrada (1965) 63 Cal.2d 740, and thus apply retroactively 

to nonfinal cases like this one. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 

1109 (Zabelle) [noting all published cases to have considered the issue have 

found the new legislation applies retroactively].) 

In this case, the court relied on factors that were not admitted by 

defendant, proved through certified records of conviction, or found true

beyond a reasonable doubt by a jury. (Pen. Code, § 1170, subd. (b)(2), (3).) As 

such, consideration of the aggravating factors was improper under the newly 

amended statute. (See, e.g., Zabelle, supra, 80 Cal.App.5th at p. 1109.) 

The parties disagree, however, as to whether we must remand for 

resentencing. Defendant contends Senate Bill 567 entitles him to a new 
36

sentencing hearing, while the Attorney General argues remand is 

unnecessary because any error in sentencing was harmless. 

The Courts of Appeal are split regarding the applicable standard of 

review in this situation, and the issue is currently pending before our 

Supreme Court. (People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], 

review granted Aug. 10, 2022, S274942.) 

In People v. Flores (2022) 75 Cal.App.5th 495, 500–501 (Flores), 

Division Three of this court held a remand for resentencing is unnecessary if 

the reviewing court can determine beyond a reasonable doubt that the jury 

would have found true at least one aggravating factor. (Accord, People v. 

Salazar (2022) 80 Cal.App.5th 453, 465, review granted Oct. 12, 2022, 

S275788.) 

The court took a different approach in People v. Lopez (2022) 

78 Cal.App.5th 459 (Lopez), where the Fourth Appellate District, 

Division One concluded that a reviewing court must engage in a two-step

analysis to determine harmlessness. (Id. at p. 467, fn. 11.) In the first step, 

the court asks whether it can conclude beyond a reasonable doubt that the 

jury would have found true beyond a reasonable doubt all of the aggravating 

factors on which the trial court relied. If the answer to that question is yes, 

the error was harmless; if the answer is no, the court must proceed to the 

second step, where the court considers whether it is reasonably probable that 

the trial court would have imposed the upper terms “if it had recognized that 

it could permissibly rely on only a single one of the aggravating factors, a few 

of the aggravating factors, or none of the aggravating factors, rather than all 

of the factors on which it previously relied.”12 (Lopez, at p. 467, fn. 11.)

12 Other published decisions have agreed generally with the Lopez 

approach, but stated the test differently. (See People v. Wandrey (2022)
37

In People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn), review granted 

October 12, 2022, S275655, the Fifth Appellate District adopted “a version of 

the standard articulated in Lopez, modified to incorporate Watson in the first 

step.” (Id. at p. 409.) Dunn described the standard for assessing prejudice as 

follows: “The reviewing court determines (1)(a) beyond a reasonable doubt 

whether the jury would have found one aggravating circumstance true 

beyond a reasonable doubt and (1)(b) whether there is [no] reasonable 

probability that the jury would [not] have found any remaining aggravating 

circumstance(s) true beyond a reasonable doubt.[13] If all aggravating 

circumstances relied upon by the trial court would have been proved to the 

respective standards, any error was harmless. If not, the reviewing court 

80 Cal.App.5th 962, 982, review granted Sept. 28, 2022, S275942 [court asks 

whether it is “certain the jury would have found beyond a reasonable doubt 

the aggravating circumstances relied on by the court and whether the trial 

court would have exercised its discretion in the same way if it had been 

aware of the statutory presumption in favor of the middle term”]; Zabelle,

supra, 80 Cal.App.5th at pp. 1111–1113 [court first considers under 

Chapman v. California (1967) 386 U.S. 18 (Chapman) whether jury would 

have found, applying beyond a reasonable doubt standard, at least one 

aggravating factor true; then evaluates whether it is reasonably probable 

that the trial court would have chosen a lesser sentence in the absence of the 

error].) 

13 When first stating the test, Dunn describes step “(1)(b)” of the 

standard as “whether there is a reasonable probability that the jury would 

have found any remaining aggravating circumstance(s) true beyond a 

reasonable doubt,” but later describes that step as whether there is “a 

reasonable probability the jury would not have found the remaining

aggravating circumstance true beyond a reasonable doubt.” (Dunn, supra, 

81 Cal.App.5th at p. 410.) The latter formulation is correct, as the question 

under Watson is whether there is a reasonable probability of a result more 

favorable to the defendant, not whether there is a reasonable probability that 

the same, unfavorable result would be reached again. (Watson, supra, 

46 Cal.2d at p. 836.) 
38

moves to the second step of Lopez, (2) whether there is a reasonable 

probability that the trial court would have imposed a sentence other than the 

upper term in light of the aggravating circumstances provable from the 

record as determined in the prior steps. If the answer is no, the error was 

harmless. If the answer is yes, the reviewing court vacates the sentence and 

remands for resentencing consistent with [Penal Code] section 1170, 

subdivision (b).” (Dunn, at pp. 409–410, fn. omitted.)14 

We need not choose amongst any of these tests, however, because we 

conclude under any of them, apart from Flores, remand for resentencing is 

required.

15

14 In People v. Lewis (2023) 88 Cal.App.5th 1125, a majority opinion 

from the Fourth Appellate District, Division Two proposed a two-step 

analysis which asks (1) whether a defendant could still be lawfully sentenced 

because the jury would have found at least one aggravating circumstance 

true beyond a reasonable doubt, and if so, asks (2) whether the record clearly 

indicates that the trial court would impose the same sentence under the new 

law. (Id. at pp. 1137–1138; but see id. at pp. 1141–1142 (conc. opn. of

Raphael, J.) [expressing agreement with Lopez test and observing the

majority’s discussion of the second step was unnecessary because the 

majority had correctly concluded the court was unable to conclude beyond a 

reasonable doubt that a jury would find any of the three aggravating 

factors].) In People v. Butler (2023) 89 Cal.App.5th 953, a different panel of 

the same court agreed with and adopted the two-step method articulated in 

Lopez, noting the discussion of the second step in Lewis was dicta. (Butler, at 

p. 960, fn. 1.)

15 For reasons explained by other courts, we decline to follow Flores. 

(See Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11; Dunn, supra, 

81 Cal.App.5th at p. 408.) We also note that in People v. Ross (2022) 

86 Cal.App.5th 1346, 1354, review granted March 15, 2023, S278266, two of 

the panel members who decided Flores concluded “[u]pon reflection” that “the 

rationale for adding a state law harmless error component [is] both logical 

and compelling.”
39

First, we conclude beyond a reasonable doubt that the jury would have 

found, beyond a reasonable doubt, at least one of the aggravating factors 

relied on by the trial court: that defendant abused a position of trust.

(Rule 4.421(a)(11).) We cannot, however, conclude the jury would have found 

the other aggravating factors true beyond a reasonable doubt, even under the 

more lenient Watson standard proposed in step 1(b) of the Dunn test. As our 

Supreme Court explained in People v. Sandoval (2007) 41 Cal.4th 825, 840, 

“to the extent a potential aggravating circumstance at issue in a particular 

case rests on a somewhat vague or subjective standard, it may be difficult for 

a reviewing court to conclude with confidence that, had the issue been 

submitted to the jury, the jury would have assessed the facts in the same 

manner as did the trial court.” Four of the five factors the trial court relied 

on in this case—that the victims were “particularly vulnerable”

(rule 4.421(a)(3)); that defendant’s acts disclosed “a high degree of cruelty, 

viciousness, or callousness” (rule 4.421(a)(1)); that the offenses involved

“planning” (rule 4.421(a)(8)); and that defendant engaged in “violent conduct 

that indicates a serious danger to society” (rule 4.421(b)(1))—require “a 

subjective assessment of the circumstances rather than a straightforward 

finding of facts.” (Sandoval, at p. 840; see People v. Wandrey, supra, 

80 Cal.App.5th at p. 983 [whether child molestation victim was “particularly

vulnerable” or whether the defendant’s offenses involved planning were 

subjective factors]; People v. Ross, supra, 86 Cal.App.5th at p. 1355 [whether 

victim was “particularly vulnerable” or crime involved acts disclosing “a high 

degree of cruelty, viciousness, or callousness” would require court to speculate 

that jury would have reached same conclusion as sentencing court].) In other 

words, these factors are “not subject to clear standards,” and require “an 

imprecise quantitative or comparative evaluation of the facts.” (Sandoval, at 
40

p. 840.) In our view, there is a reasonable probability the jury would not have 

found these aggravating factors true beyond a reasonable doubt.

It is also difficult to conclude on this record that a jury would have 

found such aggravating factors beyond a reasonable doubt, given that 

defendant might have employed a different trial strategy or presented 

different evidence had he known the aggravating circumstances would be 

presented to the trier of fact. (See Sandoval, supra, 41 Cal.4th at p. 840 [“a 

reviewing court cannot always be confident that the factual record would 

have been the same had aggravating circumstances been charged and tried to 

the jury”]; Lopez, supra, 78 Cal.App.5th at p. 466 [court could not assess 

whether jury would have found aggravating factors true beyond a reasonable 

doubt since prior version of determinate sentencing law did not require 

prosecution to present evidence related to those factors at trial].) For 

example, at the time of his trial, defendant had no need to present evidence 

to the jury regarding his low risk of recidivism or minimal prior criminal 

history, but such evidence, reflected in his probation report, may have been 

relevant to a determination whether he poses “a serious danger to society.”

(Rule 4.421(b)(1).)

Because we cannot determine with sufficient certainty that some of the 

aggravating factors on which the trial court relied would have been found 

true if submitted to the jury, we proceed to the second step of the prejudice 

analysis. (See Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11; Dunn, supra, 

81 Cal.App.5th at p. 410.) When explaining its reasons for imposing the 

upper sentence, the trial court relied on the factors cited in the probation 

report and acknowledged the mitigating factor of his minimal prior criminal 

record. The court did not expressly weigh those factors. Further, the court

commented that a harsher sentence urged by the victims and others was “not 
41

within the realm of possibility,” but also that “leniency, which is suggested on 

all the letters in support of [defendant], is not contemplated by the statutory 

framework in this particular case.” (Italics added.) Given these 

circumstances, we believe there is a reasonable probability that the court 

would have imposed a different sentence had it realized it could not rely on 

some of the aggravating factors. Accordingly, we will remand the matter for 

resentencing. We express no opinion as to how the trial court should exercise 

its discretion on remand.16

III. DISPOSITION

We reverse the sentences and remand the matter to the trial court so 

that it may resentence defendant consistent with Penal Code section 1170, 

subdivision (b), as amended by Senate Bill 567. The judgment is otherwise 

affirmed. 

16 On remand, the trial court should allow the prosecution to elect (1) to 

seek to prove aggravating factors beyond a reasonable doubt to a jury (or to 

the court, if a jury is waived), or (2) to accept resentencing on the existing 

record. (Lopez, supra, 78 Cal.App.5th at p. 469.) 
42

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SWOPE, J.*

A164002

People v. Dare

 Judge of the San Mateo County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.