1

Filed 11/28/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MALANJE PHEA,

Defendant and Appellant.

C080488

(Super. Ct. No. 13F01371)

APPEAL from a judgment of the Superior Court of Sacramento County, Timothy 

M. Frawley, Judge. Affirmed as modified.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Angelo S. 

Edralin, Deputy Attorneys General, for Plaintiff and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of Parts I.B.-I.E.2., I.E.4., III., IV., V., VI., and VII. of 

the Discussion.
2

Defendant was found guilty of all counts in a 33-count information. Thirty-one of 

the counts charged defendant with sex offenses against one of his daughters and two 

other victims, each of whom was 16 years old or younger at the time of the offenses. In 

the other two counts defendant was convicted of furnishing a controlled substance to the 

daughter. At trial, two additional victims testified to uncharged acts of child molestation 

and sexual misconduct pursuant to Evidence Code section 1108.1 The trial court 

sentenced defendant to 46 years four months in prison.

On appeal, defendant asserts that: (1) the trial court abused its discretion in 

admitting the evidence of prior sex offenses pursuant to section 1108, and any forfeiture 

of that contention constituted ineffective assistance of counsel; (2) instructing the jury 

with CALCRIM No. 1191 allowed the jury to infer his guilt based on mere propensity

proved by only a preponderance of the evidence, confusing and misleading the jurors on 

the burden of proof and conflicting with the circumstantial evidence instruction, and any 

forfeiture of these contentions constituted ineffective assistance of counsel; (3) the trial 

court abused its discretion in admitting expert witness evidence of child sexual abuse 

accommodation syndrome (CSAAS), and any forfeiture of that contention constituted 

ineffective assistance of counsel; (4) the trial court erred in instructing the jury with 

CALCRIM No. 1193 because that instruction permitted the jury to use the CSAAS 

evidence to evaluate the believability of the victims’ testimony, reducing the 

prosecution’s burden of proof; (5) he sustained prejudice as a result of cumulative trial 

error; and (6) the trial court failed to exercise its discretion, and abused that discretion, in 

imposing consecutive sentences on counts one and two.

In the published portion of this decision (Discussion parts I.A. & I.E.3.) we reject 

defendant’s due process contentions and in doing so, we conclude that reliance upon 

 

1

 Further undesignated statutory references are to the Evidence Code.
3

McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (McKinney) is misplaced because that 

case has no application in the context of section 1108 evidence. We also reject

defendant’s contention that CALCRIM No. 1191 concerning uncharged acts of sexual

misconduct2 and the circumstantial evidence instructions conflict and reduce the burden 

of proof. (Part II. of the Discussion.) Our high court’s reasoning in cases involving a 

later version of the uncharged sexual misconduct instruction and instructions pertaining 

to section 1101, subdivision (b), compels rejection of defendant’s argument. 

Furthermore, the wording of CALCRIM No. 1191 makes it clear that the reasonable 

doubt standard applies to the charged offenses.

We vacate the sentences imposed on counts one and two and remand the matter 

for resentencing on those counts, at which the trial court shall choose whether to impose 

consecutive or concurrent sentences and articulate the reasons for its choices. We also 

direct the trial court at resentencing to clearly impose a court operations assessment and a 

criminal conviction assessment on all 33 counts. We otherwise affirm.

 

2

 Now CALCRIM No. 1191A.
4

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution’s Case-in-chief

J. Doe3(Counts One & Two)4

J. was 32 years old at the time of her trial testimony. R., formerly defendant’s 

wife, was J.’s cousin. 

J. recalled a time when she was 14 years old when she visited defendant and R. in 

Sacramento and defendant took J. and P. to a park and gave them alcohol. Defendant 

also made advances at both J. and P. When it was time to leave the park, J. and P. did not 

want to go in the house with defendant so they slept in the car in the driveway.

There were also occasions when J. saw defendant in the Bay Area. On one 

occasion, J. was at her grandmother’s house in Richmond and defendant was there. J.

woke up and went into the living room where she saw defendant. Defendant passed J. a 

letter in which he told her that he had a dream about her. Later that day, defendant 

repeatedly called for J. at her grandmother’s house, but J. told her grandmother to tell him 

that she was not there. J. was scared, and she called P. and asked her to come over, 

which P. did. Later, defendant came to the house and he and P. went to the store 

together.

On another occasion, J. was in the ninth grade and she was called into the office at 

school. There, she found that there were flowers and balloons for her from defendant. J.

 

3

 At trial, each of the victims was referred to by the last name of Doe. To further protect 

the personal privacy interests of the victims and other people involved, we refer to them 

by the initial of their first name, except where they share the same first initial with 

another witness. We realize that this may present some difficulty to the reader, but on 

balance, find that their privacy interests warrant this treatment. (Cal. Rules of Court, 

rule 8.90(b).)

4

 The information alleged sexual penetration and oral copulation of J., a victim under 16 

years of age (Pen. Code, § 289, subd. (i)—count one; § 288a, subd. (b)(2)—count two).
5

threw them away. When J. got home later that day, her mother asked her where the 

flowers and balloons were. When J. asked her mother how she knew about them, J.’s 

mother responded that defendant “said he wanted to do something nice for you because 

you were feeling down.” (Italics omitted.)

On another occasion, still when J. was 14, she visited R. and defendant for the 

summer. One day, R. went to work and J. took a shower. After taking a shower, J., 

wearing only a towel, went into a bedroom and closed the door. Defendant entered the 

room, started touching J., and tried to take her towel off. J. told defendant to stop, but 

defendant reassured her that he was not going to hurt her. Defendant eventually got J.’s 

towel off, laid her on the bed, touched her breasts, opened her legs, caressed her vagina, 

and performed oral sex on her. Defendant also inserted two fingers in J.’s vagina. He 

also attempted to place his penis in J.’s vagina. J. said no. Defendant’s penis pushed 

against J.’s vagina “but it wouldn’t go and then [J.] told [defendant] that [she] wasn’t 

ready and then he stopped.” Defendant then left the room.

J. acknowledged that she did not disclose the incident to adults or to law 

enforcement. She felt like it was a difficult situation, particularly because defendant and 

R., who was J.’s cousin, had been together so long. J. felt guilty. J. eventually decided to 

disclose what had happened in 2012, after she learned that Ja., defendant’s daughter, had 

reported incidents to law enforcement. After that, J. spoke to R., told her what had 

happened, and R. told J. that she should contact law enforcement.
6

L. Doe (Counts Three & Four)5

L. was 25 years old at the time of trial. She testified that defendant dated her 

sister, S. Defendant was still married, but he had told S. that he and his wife were 

separated. 

L. visited S. in August 2005. While they were all in a car together, defendant said 

something to S. about a threesome. Defendant asked L. if she would ever have a 

threesome with him and S. Later in the day, at S.’s apartment, defendant offered L., who 

was 15 years old at the time, a Long Island Iced Tea. Defendant told L. multiple times 

that she was sexy. Looking through a catalog, defendant pointed out some lingerie and 

told L. that she would look sexy in it. L. was feeling uncomfortable, and she just kept 

brushing defendant off.

L. stayed that night in S.’s apartment. Defendant touched L. inappropriately on 

more than one occasion that night. On the first occasion, L. was sitting on the couch 

under a blanket playing with S.’s nine- or ten-month-old son.6 Defendant picked up the 

baby and, when he did so, he picked up the blanket as well. As defendant lifted the baby 

with one hand, he rubbed L.’s vagina over her pajama bottoms with the other hand.

Later, defendant and S. were playing around and locking each other out of the 

apartment. At one point, when he locked S. out, defendant approached L. on the couch, 

rubbed her vaginal area over her clothing for about a minute, and tried to kiss her. 

Defendant said to L., “ ‘We’re doing this. We’re going to do this.’ ” He then went to 

unlock the door for S.

 

5

 The information alleged two counts of lewd or lascivious acts on L., a child 15 years of 

age, defendant being at least 10 years older than the child (Pen. Code, § 288, subd. (c)(1); 

counts three & four).

6

 L. testified that, at the time, defendant thought S.’s son was his son. It turned out the 

baby was not defendant’s child.
7

Defendant left the apartment, but, after he left, he called L. more than three times 

and sent her text messages. L. did not answer the calls. In the text messages, defendant 

told L., “ ‘We’re fucking tonight,’ ” and “ ‘Don’t be scared.’ ”

By the time defendant returned to the apartment, in the middle of the night or in 

the early morning, L. was asleep on the couch. Defendant knocked, but lightly enough so 

that S. would not hear. L. did not do anything, thinking that defendant might just go 

away. Defendant knocked harder, and then called S., who let him in. S. and defendant 

went into S.’s room, but defendant returned to the living room an hour or two later, after 

S. went to sleep. L. was on the couch, pretending to be asleep. Defendant approached 

the couch and touched L. under the blanket. Defendant pulled L.’s pajama bottoms 

down, tugged on L.’s underwear, ripping them, and put two fingers in her vagina. 

Defendant moved his fingers in and out. L. just lay there, not knowing what to do. L.

told defendant not to touch her, but she acknowledged at trial that she did not know if she 

said it loudly enough, “or if it was in a joking way. I wasn’t really aggressive telling him 

to stop.” She felt embarrassed. After a few minutes, S. came into the room, and 

defendant dove onto the floor and pretended that he had just been lying there. Defendant 

then got up and went to the patio with S., had a conversation, and then went into the 

bathroom. Defendant left the apartment and S. went back to sleep. L. just lay there, not 

knowing what to do.

The next morning, L. called her mother to pick her up and told her what had 

happened. L. and her mother went to her mother’s house, where her mother called the 

police. Deputy Sheriff Gustavus Youngberg came to the house and took a statement 

from L. L. told Youngberg that defendant touched her vagina area three times. L.

showed the deputy her phone with the text messages and call log. There were five 

missed calls on the phone. Defendant had texted L., “ur fucking tonite. Rite me! Don’t 

be scared!” A second text read, “ur fucking tonite. Write me! She is going to sleep. 
8

Call.” A third text message was the same as the first text message. The last text message 

said, “I’m coming.”

L.’s mother then took L. for a medical examination. She saw Sheridan Miyamoto,

a forensic nurse practitioner who worked at the Child and Adolescent Abuse Resource 

and Evaluation Center at U.C. Davis.7 Miyamoto saw children brought in due to 

concerns of physical and sexual abuse or neglect. Miyamoto performed an examination 

of L. on August 17, 2005. As she began the examination, Miyamoto noticed that L.’s 

underwear was torn. L. said that her sister’s boyfriend had put his hand in her underwear, 

and her underwear tore. During the genital examination, an area of L.’s left labia majora 

“fluoresced,” indicating the possible presence of a substance that could contain DNA. 

After the examination, Miyamoto concluded that the results were consistent with L.’s 

description of the alleged assault. Miyamoto noted that, in cases of digital penetration, it 

is “not at all uncommon” for there to be no physical injuries. She further noted that, 

based on a substance fluorescing, “not knowing what those are, I also mark as something 

that is -- potentially contributes and would be consistent.”

Miyamoto collected evidence via swab from the area that fluoresced, labeled it, 

and placed it in the crime kit. Ann Murphy, a criminalist at the Sacramento County 

Laboratory of Forensic Services, compared the foreign material swab from L.’s crime kit, 

which was a partial profile, with a reference sample from defendant and found that the 

DNA profiles were consistent. The likelihood of a random individual’s DNA profile 

matching the partial profile Murphy analyzed was one in 250 million in the AfricanAmerican population, one in three billion in the Caucasian population, and one in 15 

billion in the Hispanic population.

 

7 Miyamoto was unavailable at the time of trial. Her video-recorded testimony from a 

prior proceeding was played for the jury.
9

When Detective Jason Jacobo of the Elk Grove Police Department contacted L. in 

2012 about the investigation, she did not want to be involved. Ultimately, L. did talk to 

two female criminal investigators from the district attorney’s office.

Ja. Doe (Counts Five through Thirty-Three)8

Ja. was defendant’s daughter. She was 23 years old when she testified at trial. 

When Ja. was nine years old, defendant began to come into her room, which she 

shared with her younger sister D., and kiss them both on the mouth. Ja. testified that 

defendant would sometimes use his tongue when he kissed her on the mouth and his 

kisses could last five minutes. Defendant would also touch Ja. on her vaginal area, under 

her clothing, with his hand. Sometimes defendant would carry Ja. into his room when R.

was not there and rub lotion on her without her clothes on. He would apply lotion to Ja.’s 

arms, legs, and then “he would move up more in between [her] legs with [her] vagina 

area.” Defendant would “use his two fingers and he would rub along the vagina area 

slow.” He would also rub Ja.’s breasts. Ja. estimated that this occurred 20 times. The 

last time defendant did this, Ja. ran to her room and locked the door.

On one occasion, still when Ja. was nine, defendant was playing with Ja. and D.

and defendant’s penis came out of his boxer shorts. He did not put it back in, but instead 

continued to play with the girls.

One day, still when Ja. was nine years old, R. called Ja. where she was staying “in 

the Bay Area at [her] nana[’s] house,” and asked Ja. if defendant ever touched her in a 

“ ‘wrong way.’ ” Ja. told R. that he did. When R. confronted defendant, he told Ja. to 

 

8

 Regarding Ja., the information alleged 11 counts of lewd or lascivious acts on a child 

under 14 years of age (Pen. Code, § 288, subd. (a); counts five through fifteen); 16 counts 

of lewd or lascivious acts on a child of 14 years of age (counts sixteen through twentythree) and 15 years of age (counts twenty-four through thirty-one), defendant being at 

least 10 years older than the child (Pen. Code, § 288, subd. (c)(1)); and two counts of 

furnishing a controlled substance (cocaine & ecstasy) to a minor (Health & Saf. Code, 

§§ 11353 & 11380, subd. (a); counts thirty-two & thirty-three).
10

stop lying. He also suggested that Ja. had been dreaming. Ja. was scared and feared she 

was going to get in trouble. She also did not want her parents to fight. Ja. was brought to 

“a children’s place where [she] had to talk to somebody,” and she told that person “that it 

didn’t happen . . . .” On cross-examination, Ja. testified that she remembered telling a 

social worker that defendant never touched her inappropriately, but testified that she did 

so only because she was scared. She did not want her parents to be mad at her.

The next time Ja. remembered something sexual happening with defendant was 

when she was 13 years old. She testified that defendant “took [her] virginity from [her].” 

R. was at work and defendant told Ja. to come to the room where he was. Defendant had 

video surveillance cameras throughout the home, and defendant was looking at a monitor 

to see if anyone was coming. Defendant closed the door, pulled down Ja.’s pants, and 

tried to put his finger in her “private area,” but it would not fit. Defendant said, “ ‘Let me 

see something right quick. Let me check something out.’ ” Defendant told Ja. to lie 

down, which she did, and defendant pulled out his penis. Defendant inserted his penis 

inside of Ja., and she told him that it hurt. Defendant “kept going and going with it.” 

While he was doing it, defendant kept looking at the video monitor. Defendant told Ja., 

“ ‘Just for a few more seconds. Just give me a second, for a few more seconds.’ ” 

Defendant then ejaculated onto his hand. Ja. estimated that the incident took 15 minutes. 

When it was over, Ja. was bleeding. She pulled up her pants and ran upstairs, wiped 

herself, and saw that there was “a lot of blood.” She then heard defendant say, “ ‘Come 

on. Let’s go. Let’s go pick up your mom.’ ” When they picked R. up, R. immediately 

asked Ja. what was wrong. Ja. could see defendant looking at her in the rearview mirror. 

Ja. “just turned back around and looked out the window, continued to look out the 

window and didn’t say anything after that.”

On another occasion, when Ja. was still 13 years old, she awoke to defendant 

coming into the room she shared with D. Ja. saw defendant put a DVD on the television. 

Ja. went back to sleep. When she woke up, she saw that there was pornography playing 
11

on the television. By that time, defendant was no longer in the room. Ja. turned the 

television off and went back to sleep. Ja. woke up again later, saw that defendant was 

sitting on the edge of her bed, and saw the pornography back on the television. 

Defendant was rubbing Ja.’s vagina area under her clothing with his hand. Ja. got up, ran 

out of the room, and ran into R.’s room. R. said, “ ‘[Ja.], what are you doing in here? Go 

to bed.’ ” Ja. did not tell R. what had happened, and instead went back to her room. 

Defendant had left her room. The next morning, Ja. told R. what had happened, that she 

did not like the way defendant touched her, and that she felt uncomfortable. R. again 

confronted defendant with what Ja. had said. Defendant claimed he did not know what 

she was talking about, and again suggested that Ja. had been dreaming. Nothing came of 

this disclosure either.

Ja. testified that, when she was 13, defendant had her give him oral sex, he gave 

her oral sex, and he had vaginal and anal intercourse with her. Defendant also penetrated 

Ja.’s vagina using his fingers and using other objects, including what Ja. believed to be a 

massager that was kept in her parents’ dresser drawer. He would also kiss her and touch 

her breasts. Defendant would ejaculate on various places on Ja.’s body.

Using a Sony camera, defendant would take photographs and videos of Ja. while 

she was naked. He would record these images of her vagina and her breasts. Ja. testified: 

“He would tell me to open my legs, put my legs back, or he would tell me to put my 

hands down at my private, my vagina area, and he would tell me to open up my vagina 

area with my hands so he can see the inside of my vagina.” Defendant would also tell Ja.

to play with herself for the video, and to go into the bathroom and record herself. 

Sometimes she would protest, but defendant would tell her that she could choose between 

recording herself or having sex, and she would choose recording herself. Defendant 

would also record sex acts he engaged in with Ja.

Defendant would text Ja. and tell her things like, “ ‘ten minutes come in the 

room,’ ” or he would tell Ja.’s siblings to go to bed and tell Ja. to come back downstairs 
12

in 20 minutes. When they were alone, defendant would tell Ja. to “make him hard,” by 

which he meant that she should give him oral sex, he would tell her to lie down and tell 

her, “ ‘We’re going to do this,’ ” or he would tell her, “ ‘Suck me up for a little bit.’ ” It 

got to the point that Ja. knew what was going to happen when defendant told Ja. to meet 

him someplace. Ja. would just take her clothes off, knowing what was about to happen.

If Ja. told defendant she did not want to do something, he would get mad, take 

things away from her, tell her she could not go out, or “just have attitudes if [she] didn’t 

do it.” Ja. testified that defendant would give her gifts or tell her that, if she let him have 

sex or have oral sex, he would let her go to a friend’s house or go out and do something. 

The gifts included necklaces, rings, and new phones. However, if Ja. did not do as 

defendant wanted, he would take the items away. When Ja. would come home after 

having her hair done, defendant would say, “ ‘You want to get on tonight?’ ” He would 

also use sex as a “reward” on her birthday and other special occasions. Defendant told 

Ja. that “all fathers do this with their daughters. That’s just their father-daughter 

relationship. It’s just how things go.” He also told her that he had “done stuff to [Ja.’s]

cousin and [her] brother,” and “ ‘Yeah, I did that to them. It’s normal, so then it should 

be okay for me to do this to you.’ ”

Defendant would also use sex as a punishment. On one occasion, defendant saw 

Ja. talking to a boy, which he did not like, and he was mean to Ja. all day. That night, 

while everyone else in the house was asleep, defendant had sex with Ja., during which he 

slapped her face and asked if she learned her lesson, if she was going to “do that again,” 

and if she was sorry. On another occasion, when she did not let defendant have oral sex 

with her, he dropped her off at a friend’s house, but immediately retrieved her and told 

her that he would not take her back unless she let him perform oral sex on her. Ja. ran 

upstairs crying, and defendant choked her. R. heard the commotion and asked what was 

going on. When Ja. said defendant had choked her, defendant, again, said she was lying. 
13

R. told Ja. that if she was talking back to defendant, she should stop. Later, defendant 

took Ja. to S.’s house, and, while S. was not there, he had sex with Ja.

Defendant would also tell Ja. that no one else would make her feel the way he did, 

and that he wanted to be the only person in her life making her feel the way he did.

Ja. also remembered an incident when she was 13 when defendant first gave her 

ecstasy. Defendant would give her marijuana, alcohol, cocaine, and ecstasy. Ja. testified, 

of these substances: “I felt -- my body was tired. At times I would do it just so I 

wouldn’t feel the pain just so I wouldn’t feel nothing, and I would be so numb to where 

I’m not even in my body. I’m just laying there and just don’t know, like, what’s about to 

happen. Just blacking out. Just dropping to my knees and just doped up.”

Ja. would tell defendant that she was going to tell R., to which he responded,

“ ‘Well, you tell her, then she’s not going to believe you,’ or ‘She’s going to beat you 

up,’ or ‘You’re going to get in trouble for it.’ ” Ja. wanted to tell R. “[a]ll the time,” but 

she did not. She felt tired, she was losing weight, her hair was falling out, and she was 

not functioning in school. One day she looked in the mirror and she saw “this doped-up 

person that I would see on the streets somewhere or say, ‘Oh, my God, look at that 

person. What happened to them? Why are they like that?’ ” She remembered one 

occasion when she went upstairs to tell R. what was happening. She went up the stairs 

towards the room where R. was, and she heard R. having a conversation with someone. 

The subject of the conversation was molestation in families, and Ja. overheard R. say that 

she prayed nothing would happen to her family and her daughter. Ja. “just stopped in 

front of the door, and . . . went back downstairs.”

Ja. testified that sexual activity occurred every night. However, she also testified 

that she thought the sexual activity occurred “more than 30 times” each year. She 

responded affirmatively when the prosecutor asked whether the forms of sexual activity 

she described, including performing oral sex, receiving oral sex, defendant’s digital 

penetration of her vagina, and vaginal intercourse, occurred at least twice each year 
14

between the time she was 13 and when she was 17. She also testified that defendant 

provided her with cocaine and ecstasy each year when she was 15, 16, and 17. 

Defendant’s sexual abuse of Ja. continued until she was 17 years old.

When Ja. was 17, on Christmas Eve, R. was on the phone, and, while she was on 

the phone, R. said something like, “ ‘If you don’t tell what you done or somebody done to 

you, that’s bad. You’re going to go to hell,’ ” or “if you don’t tell what happened to you, 

or if anybody doing anything to you, you’re going to go to hell, you’re going to burn up.” 

Ja. thought to herself that she refused to go to hell because of defendant. She felt her 

body getting hot, and she went to the bathroom. R. followed Ja. to the bathroom and 

asked what was wrong. Ja. told R. that defendant was having sex with her.

Ja. decided to go to the police. R. told Ja., “ ‘If this is really what you want to do, 

then I’m here for you.’ ” However, defendant’s mother, brother, and sister told Ja. not to 

tell anyone, and that defendant would be killed in prison.

Ja. went to the police. As Ja. got out of the car, defendant called her and said: 

“ ‘Don’t tell on me. Don’t say anything. Tell them that you had a boyfriend that you 

were with,’ or . . . ‘Tell them that you were, again, dreaming and you thought that was me 

and it wasn’t me and whatever.’ ” Ja. got scared, confused, and did not know what to 

say. She still wanted to protect defendant because, despite everything he had done, he 

was her father. Ja. “didn’t go through with it.” She told the detective that nothing 

happened. Again, on cross-examination, Ja. testified that she did not say anything 

because she was scared. However, defendant’s sexual abuse of Ja. ended, and R. and the 

kids eventually lived apart from him. When she turned 20 years old, Ja. “finally had the 

courage and the strength to go tell.”

P. Doe (Section 1108 Witness)

P., J.’s cousin, testified pursuant to section 1108. She was 32 years old at the time 

of trial.
15

P. testified that, when she was 13 or 14 years old, she went to J.’s grandmother’s 

house because J. called her and asked her to come over. P. went to the store with 

defendant, defendant asked for her phone number, and P. gave it to him.

Some time later, perhaps months later, defendant called P. and suggested that they 

get together. Defendant suggested that he pick P. up on her way to school. On one 

occasion, defendant picked P. up and took her to a house in North Richmond. Defendant 

took P. into a room “and was kissing and stuff like that.” Defendant also tried to put his 

fingers in P.’s vagina by unzipping her pants and putting his hand down her pants, and he 

may have touched her breasts. Defendant tried to take P.’s pants down, but he was not 

able to do so. They remained at the house for approximately two hours, and defendant 

then took P. to school. 

On another occasion, defendant took P. to an abandoned house in Richmond. He 

took her into a room and kissed and touched her.

On yet another occasion, when P. was 13, she visited J. and R. P. wanted to take a 

shower, but she was holding D., who was a baby at the time, attempting to put D. to 

sleep. P. turned on the water, but D. was crying, so P. gave D. to J. and went back to the 

bathroom to shower. When she got back to the bathroom, she found defendant in the 

shower. P. testified that she did not remember what happened when she opened the 

shower curtain, but then testified that she remembered “us kissing and him sucking on 

my breasts and then after awhile, D. was still crying so I was like, I need to go and get 

your baby because she’s still crying.” Defendant told P. not to leave. P. told defendant 

that she would just put D. to sleep and come back, but she did not feel comfortable and so 

she did not return. Asked why she did not feel comfortable, P. responded: “it was 

becoming too much. Like I wasn’t, like, expecting him to be naked in the bathroom and 

all that.” P. admitted that she was “kind of okay with what had happened up to that 

point,” but did not want things to go farther.
16

P. also remembered the time, around the same time or perhaps a year later, that 

defendant brought her and J. to the park and gave them alcohol. According to P.’s 

recollection, she and defendant came back to the house while J. stayed in the park, and P.

went to the bathroom. When P. got out of the bathroom, defendant pulled her into the 

garage, placed a piece of cardboard on the floor, laid P. down on it, and, with both of 

their pants down, attempted to insert his penis in P.’s vagina. However, it would not go 

in. P. testified that she was trying to keep her legs closed and told defendant to stop and 

that he was hurting her. R. was in the house at the time. After this experience, P.

attempted to distance herself from defendant and stopped coming around.

P. testified that she did not tell any adults what had happened for a long time 

because she was ashamed and she felt as though she “somewhat led it on.” After P.

learned that Ja. had come forward, P. decided she wanted to cooperate. Asked again why 

she did not come forward earlier, P. responded: “I don’t know. That’s something I got to 

live with for the rest of my life. I should of came forward but I just kind of didn’t want to 

deal with it, really. I mean I wanted to tell R.; but we didn’t know how to tell her. Like, 

how do you go tell somebody that they married to -- that -- that they are touching and 

kissing and feeling and all that stuff? Like, how do you tell somebody that?”

Ra. Doe (Section 1108 Witness)

Ra. testified pursuant to section 1108. She was 27 years old at the time she 

testified at trial.

Defendant was Ra.’s uncle. She was uncooperative at trial. Ra. testified that she 

did not “remember when [she] was 14,” and that she did not “remember anything.” She 

repeatedly testified, “I don’t remember,” “I don’t remember anything,” and “I don’t 

remember nothing.” However, she acknowledged that she had told Detective Jacobo that 

defendant touched her in a sexual way when she was 14 years old, and that she made 

similar statements in preliminary hearing testimony. She testified that Jacobo “put words 

in [her] mouth.” She denied that defendant raped her, and then testified that he did not do 
17

anything. When the prosecutor asked whether she told Jacobo that defendant touched her 

vagina and her breasts under her clothes, Ra. responded, “He told me that’s what his 

wife, R., told him that. He kept asking me questions, and I was telling him no; but he 

said that’s what they said and I was scared so I don’t know what to say.” When asked if 

she made a similar statement at the preliminary hearing, Ra. responded, “That you guys 

was asking me, yeah. I said yeah, because I don’t know what to say here. I don’t like 

being in this predicament.” Ra. testified, “I don’t want to cooperate.” Ra. also testified 

that she did not recall defendant giving her a pill that made her feel blurry and sleepy.

The prosecutor played for the jury recordings of interviews between Detective 

Jacobo, another detective, and Ra. When first contacted, she indicated she did not want 

to get involved. Ultimately, Ra. told Jacobo that she was 14 years old when “that 

occurred” between her and defendant at his house in Elk Grove. Ra. told Jacobo that 

defendant told her to go to the bed, and he would come into the room an hour later. Ra.

told Jacobo that defendant did not have sex with her, but he did touch her on her vagina 

and on her breasts. Defendant had Ra.’s “pants down a little bit,” and, when he touched 

her breasts, he did so under Ra.’s shirt. He would touch her, leave the room, come back, 

and touch her again. This pattern repeated “[l]ike three times.” Ra. told defendant to 

stop and he responded, “ ‘I can’t,’ ” but then he stopped. Ra. also told Jacobo that 

defendant gave her some type of pill that made her feel “blurry” and “sleepy.” Weeks 

later, defendant apologized to Ra. and asked her not to tell on him. Three months after 

the incident, Ra. told her mother what had happened, and Ra. never talked to defendant 

again. Ra. also told Jacobo that she told R. about it. R. tried to fight her, but R. later 

changed her attitude. During the interview, Ra. said she did not want to come to court.

Ra. also denied at trial telling Leslie Zapata, a criminal investigator for the district 

attorney’s office, that her grandmother, her mother, and her uncle called her and 

pressured her not to testify at the preliminary hearing. She testified that she did not recall 

telling Zapata that family members had threatened to come to the preliminary hearing to 
18

intimidate her. She also did not remember telling Zapata that her mother and 

grandmother told Ra. that they believed her, but that she should have kept her mouth shut

and not spoken with police.

Zapata testified that she picked up Ra., an “uncooperative witness,” to transport 

her to the preliminary hearing. Zapata stayed with Ra. throughout the day. According to 

Zapata, Ra. was very nervous and reluctant. After the lunch break, Ra. vomited in the 

restroom. Zapata testified that Ra. stated that she was receiving phone calls from her 

mother, her grandmother, and her uncles threatening to attend the preliminary hearing to 

intimidate her. Zapata also testified that Ra. stated that her mother and her grandmother 

told her that they believed her, but that she should have kept her mouth shut and not 

talked with the police. Zapata testified that, after the preliminary hearing, she and her 

partner were walking with Ra. out of the courthouse and towards the district attorney’s 

office when Ra. said she saw her uncles walking towards them.

Defense Evidence

Detective Jacobo testified that he participated in a search of defendant’s home. 

Defendant cooperated with the search. Jacobo testified that there was no relevant 

evidence found on any of the electronics seized in the search.

R. testified that she and defendant were married for approximately 16 years. R.

testified that defendant was manipulative and “probably cheated on me the whole 

relationship.” R. remembered at one point hearing that Ra. had claimed that defendant 

had done something inappropriate with her. This prompted R. to call Ja., who was nine 

years old at the time and who was staying at R.’s grandmother’s house, and ask Ja. if 

defendant had done anything to her. At first, Ja. said no. As the conversation continued, 

Ja. said she did not know or understand, and then she started crying. Then Ja. told R. that 

defendant did touch her. R. went to the Bay Area to pick Ja. up, and then she called the 

police. R. took Ja. somewhere to talk to someone, and Ja. told the person she spoke with 

that it had not happened. R. testified that defendant convinced her that it had not 
19

happened. She testified: “I think it was still in the back of my mind, but I don’t think I 

wanted to believe that that happened.” R. acknowledged that she continued living with

defendant, and continued leaving the children with him.

R. remembered an occasion when defendant and the children picked her up at 

work, and it seemed like something was wrong with Ja. Ja. was very quiet and R. asked 

her if everything was okay. Ja. told R. that nothing was wrong.

R. also remembered when, on Christmas Eve in 2009, Ja. told her that defendant 

had been molesting her. R. called the police, and, later, took Ja. to the police station. Ja.

went into a room with a detective. Afterward, Ja. did not tell R. anything about what she 

told the detective.

R. testified that she moved out with Ja. and D., but acknowledged that, sometime

later, she moved back in with defendant. She testified that she did not have anywhere 

else to go. According to R., moving back in with defendant was supposed to be a 

temporary arrangement. They ended up living with defendant for approximately one 

year. During this time, R. and defendant were essentially roommates, and they slept in 

different rooms.

R. recalled hearing a rumor that defendant was having sex with J. By this time, R.

was not with defendant, “so it really didn’t matter.” However, R. went to talk to J. about 

it, but “it just kind of went out of control,” and after that, R. and J. did not talk. At some 

point, however, J. told R. about an incident that happened with defendant when J. was 

younger.

Defendant testified. He claimed that none of the accusations made by Ja., J., P., 

L., and Ra. were true.

On direct examination, defense counsel asked defendant if he recalled a time in 

2001 when R. alleged that defendant had molested Ja. and defendant responded that he 

did remember her making the accusation. Defense counsel then asked if something had 

happened between defendant and Ja. Defendant testified that Ja. had asked if she could 
20

go to the park and take D. with her, and defendant agreed. However, later, he looked 

toward the park and saw D. but did not see Ja. Defendant went to the park, where he 

found Ja. in the bushes with a boy. Defendant testified that Ja. got in trouble for that

incident, suggesting that this was a motive for fabricating an allegation of abuse.

A couple of days later, defendant was in the bathroom shaving when Ja. came in to 

take a shower. Ja. said, “ ‘Look, Dad,’ ” and defendant looked over at her. Ja. was 

pulling on her pubic hair. On cross-examination, defendant stated that he had “ended up 

pulling, see what she was talking about. It was pubic hair.” Defendant testified that, 

after that, he and R. got in a big fight, and R. went to the Bay Area. Then defendant 

received a call from a detective asking about whether defendant touched his daughter and 

he said no. Defendant called Ja. while the detective was still on the line, and, without 

disclosing that the detective was on the line, asked Ja. where he put lotion on her when he 

applied it. Defendant asked Ja. if he touched her anywhere other than her arms and legs, 

and if he touched her “anywhere when you use the bathroom at,” and she said no. 

Defendant testified that the detective told him that the case would be closed. This all

occurred when Ja. was nine years old. On cross-examination, defendant confirmed that 

he was indeed claiming that he, a suspect in the case, was permitted by the detective to 

make this surreptitious three-way call to his nine-year-old daughter. However, after 

reviewing the 2001 report of that investigation, defendant acknowledged that he did not 

see any reference to this three-way call in the report.

Asked if he ever talked to R. about why she called the police, defendant 

responded: “No. She always say things, do things to me knowing that it -- she knew 

what to do to me. She now [sic] how I am. She knew how to get back at me everything. 

At that time I had nowhere to go. I was the one had nowhere to go. She was the one with 

the job and all that. At that time she had -- it was her house so I couldn’t just leave. I 

had nowhere to go.”
21

Defendant testified that he had a history of cheating. Defendant began seeing S. in 

2003. Defendant recalled that, in 2005, L. said that he touched her. Defendant recalled 

one occasion when L. was at S.’s house and was holding the baby. Defendant picked up 

the baby, gave him a kiss, and set him back down with L. The next day, S. called 

defendant and told him that L. was saying that defendant touched her. Defendant 

testified that he did not touch L. inappropriately.

Asked if something happened prior to Christmas Eve 2009 when R. accused him 

of molesting Ja., defendant testified that he had caught Ja. lying to him about a male 

friend that she was seeing. Defendant told R. about it and Ja. got in trouble. Also, 

defendant testified that, on another occasion around that time, he was having sex with a 

woman at their home. He heard Ja. yelling, and Ja. came downstairs “to tackle the lady.” 

Defendant told Ja. to go back upstairs, and he took the woman home. Ja. told R. about 

the incident.

On the car ride back from the Bay Area following the Christmas Eve visit, R.

again accused defendant of molesting Ja. Defendant was angry and he and R. argued. 

When they got home, defendant got out of the car, expecting R. to follow and that they 

would talk more in the house. However, R. “took off in the car.”

On cross-examination, defendant testified that, when he was interviewed by 

police, he told the detective that R. must have fabricated the allegations because he had 

moved some of her possessions out of the house, and that she was mad at him because he 

was “surviving without her” and he did not want her back. Defendant further 

acknowledged that, when the detective told defendant that it was Ja. making the 

allegations, he shifted his blame to Ja., stating that she had a “daughter-father crush” on 

him. However, he then testified that he did not believe Ja. was to blame for anything.

Defendant next saw R. and the kids on New Year’s. At that time, they all moved 

back in with him. However, the house was going into foreclosure, R. got an apartment, 

and she and the children moved out. Defendant moved into a new place, and, after a 
22

while, R. and the kids moved back in with him. R. lived with defendant until the end of 

2010, when she moved to another apartment. The kids split time living with defendant 

and R.

Defendant testified that, in 2012, he and R. had various conflicts with each other. 

One of these conflicts revolved around financial assistance. Defendant received food 

stamps and “Section 8” housing subsidies (42 U.S.C.S. § 1437f; Welf. & Inst. Code, 

§ 16517, subd. (c)). The amount defendant received in benefits was increased over what 

he would receive personally because Ja., D., and their son were living with defendant. 

When Ja. got pregnant, R. “used [Ja.’s] information to get an apartment,” which subjected 

defendant to scrutiny over his section 8 housing claims. Defendant underwent an 

interview, and he immediately removed all of the children from his section 8 housing 

claims. Their son went into the military, and Ja. and D. went to live with R. Defendant 

also took D.’s name off of his food stamps account, which made R. angry and she 

removed defendant from her medical benefits. Defendant knew that R., Ja., and D. were 

receiving benefits, and that they should not also be receiving benefits on his accounts. 

Defendant did not want to get into trouble with the government for committing fraud.

After Ja. became pregnant, her college grades began to suffer. Defendant 

confronted Ja. about the issue and Ja. got upset with defendant.

At some point, defendant began living with S.G., his new girlfriend. This was 

upsetting to R. because defendant had taken the children off of his section 8 housing and 

yet “then I let another lady come in with her kid.” In July 2012, defendant was with Ja.’s 

boyfriend, when defendant was arrested for driving under the influence. Defendant gave 

his cell phone to the boyfriend to take home and give to S.G. However, somehow Ja.

obtained the phone. Defendant testified that there were photos and videos on the phone, 

including photos and videos of naked women, which showed that he had been seeing 

other women. Defendant believed that Ja. went through his phone because, at some 

point, she answered his phone.
23

Defendant acknowledged having heard a rumor that he was seeing J. While 

defendant admitted to being flirtatious with J., he denied that he had an affair with her.

In October 2012, police showed up at defendant’s home and searched his entire 

house. The police seized all of defendant’s electronics, and defendant provided police 

with all of his passwords. Defendant went with the police and was interviewed by Jacobo

for approximately one hour. After the interview, defendant went home.

Defendant testified on cross-examination that R. brainwashed “all three of 

[defendant’s] kids.” He testified that he believed that everybody, “Whoever was in this 

case,” including S.G., was part of a conspiracy against him. Defendant also testified on 

cross-examination that he believed that R. made multiple false allegations of child 

molestation against him because of the fights he had with her. When questioned by the 

prosecutor why he would continue to stay in the household with a woman who 

continuously accused him of molesting his children, despite the risk of being

incarcerated, defendant responded that he stayed for his children. Defendant also 

testified that R. sent him threatening text messages. When the prosecutor asked about the 

seizure and forensic analysis of defendant’s five phones and whether defendant was able 

to find those threatening text messages, defendant responded, “I don’t trust what the 

forensic people did. And I think that they didn’t give me my -- all my texts . . . .” 

Defendant asserted that, in viewing the forensic extractions from his cell phones, he saw 

that the dates had been changed and text messages and logged calls were missing. The 

prosecutor asked defendant if the police, too, were in on the conspiracy, to which 

defendant responded, “Ask them. I don’t know. I think you in on the conspiracy. I’m 

sorry.”

Verdict and Sentencing

The jury found defendant guilty on all 33 counts, and further found true the 

allegations that counts one through thirty-one were timely filed.
24

The trial court sentenced defendant to an aggregate determinate term of 46 years 

four months, calculated as follows: the upper term of nine years on count thirty-two; 

consecutive two years (one-third the midterm) on count thirty-three; consecutive eight 

months (one-third the midterm) on counts one through four; consecutive two years (onethird the midterm) on counts five through fifteen; and consecutive eight months (onethird the midterm) on counts sixteen through thirty-one. In choosing the upper term on 

count thirty-two, furnishing ecstasy to Ja., the trial court stated that the evidence 

demonstrated that there were multiple instances of that crime having been committed, 

and that it believed that defendant should be incarcerated for the maximum term 

permitted by law.

DISCUSSION

I. Admission of Section 1108 Evidence

A. Additional Background

In her written in limine motions, the prosecutor sought the admission of evidence 

of uncharged sexual offenses committed against P. and Ra. pursuant to section 1108.9

The prosecutor asserted that, under section 1108, such evidence is admissible to prove 

that defendant committed the charged sexual offenses. The prosecution acknowledged 

that evidence otherwise admissible pursuant to section 1108 is subject to a section 352 

balancing analysis. The trial court allowed the evidence concerning both P. and Ra.

B. Defendant’s Contentions

Defendant asserts that the trial court abused its discretion in admitting evidence of 

prior sexual offenses pursuant to section 1108. Defendant asserts that section 1108 is 

unconstitutional on its face and as applied because it violates due process. Defendant 

does acknowledge that the California Supreme Court has found section 1108 to be 

 

9

 In the alternative, the prosecutor sought admission of the evidence pursuant to 

section 1101, subdivision (b), a request we need not address here.
25

constitutional, and it has rejected due process challenges to that section, but he 

nonetheless asserts his argument “to preserve . . . for further review” his claim that 

section 1108 violates federal due process standards. Regarding his as-applied challenge, 

defendant asserts that this evidence, which needed only to be established by a 

preponderance of the evidence as stated in CALCRIM No. 1191, weakened the burden of 

proof and resulted in his conviction based on proof less than proof beyond a reasonable 

doubt. Defendant further asserts that this evidence should not have been admitted on 

section 352 grounds. Under a separate heading, defendant asserts that his forfeiture of 

this issue in the trial court was the result of ineffective assistance of counsel. Even if the 

evidence had been properly admissible pursuant to section 1108, defendant asserts that, 

had defense counsel objected, the evidence would have been excluded pursuant to 352 

because its prejudicial effect substantially outweighed any probative value.

C. Section 1108 and Applicable Principles of Law

“Character evidence, sometimes described as evidence of a propensity or 

disposition to engage in a type of conduct, is generally inadmissible to prove a person’s 

conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159 

(Villatoro), citing § 1101, subd. (a).) However, over twenty years ago, the Legislature 

created a specific exception to this rule for cases involving sexual offenses. Section 1108 

provides, in pertinent part: “In a criminal action in which the defendant is accused of a 

sexual offense, evidence of the defendant’s commission of another sexual offense or 

offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible 

pursuant to Section 352.” (§ 1108, subd. (a).)

D. Forfeiture

Defendant forfeited his contentions that section 1108 is unconstitutional, on its 

face and as applied, because, as defendant candidly concedes, he did not raise these 
26

contentions in the trial court.10 (People v. Miramontes (2010) 189 Cal.App.4th 1085, 

1099 [specific objection to § 1108 forfeited by failure to raise in trial court]; People v. 

Crabtree (2009) 169 Cal.App.4th 1293, 1314 [appellant forfeited any claims of error as 

to § 1108 testimony by failing to make a timely objection in the trial court on the grounds 

asserted for the first time on appeal].) Additionally, with regard to defendant’s as-applied 

contentions on appeal, defendant neither asserted before the trial court that the evidence 

should have been excluded pursuant to section 352 nor that the section 1108 evidence, 

coupled with CALCRIM No. 1191, weakened the burden of proof and allowed him to be 

convicted on less than proof beyond a reasonable doubt. Defendant asserts that his

“argument[s] [were] not forfeited because trial counsel was ineffective.” (Initial 

capitalization omitted.)

E. Ineffective Assistance of Counsel Claim

1. Ineffective Assistance of Counsel General Principles

To prevail on a claim of ineffective assistance of counsel, a defendant must show 

(1) counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) the deficient performance prejudiced the 

defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 

696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Rogers (2016) 245 

Cal.App.4th 1353, 1367.) “ ‘Surmounting Strickland’s high bar is never an easy task.’ ” 

(Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642], quoting Padilla 

v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].) The reason why 

 

10

 Defense counsel did initially object to the admission of the section 1108 testimony 

concerning Ra., but then acknowledged “[a]s to 1108, her testifying to the similar 

conduct, I don’t believe I have a basis to object to that.” Counsel argued other grounds 

for objection (“competency issues, immunity issues” related to pending criminal 

charges), which turned out to be based on the misidentification of Ra. and subsequently 

rendered moot when the parties identified the correct Ra. Otherwise, as the parties agree, 

defense counsel did not object to the admission of the section 1108 evidence.
27

Strickland’s bar is high is because “[a]n ineffective-assistance claim can function as a 

way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so 

the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial 

inquiry’ threaten the integrity of the very adversary process the right to counsel is meant 

to serve. [Citation.] . . . It is ‘all too tempting’ to ‘second-guess counsel’s assistance 

after conviction or adverse sentence.’ ” (Richter, at p. 105.) As we shall explain, trial 

counsel’s performance was not deficient and thus defendant has failed to carry his burden 

of establishing ineffective assistance of counsel.

2. California Authorities on the Constitutionality of Section 1108

As defendant acknowledges, our high court has rejected the claim he advances

here, that section 1108 is unconstitutional on its face because it violates due process. In 

People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our high court was faced with a due 

process challenge to section 1108 on the ground that it allows for the admission of 

“propensity” evidence and “conclude[d], consistent with prior state and federal case law, 

that section 1108 is constitutionally valid.” (Falsetta, at p. 907 [rejecting due process 

claim].) Two years before Falsetta, another panel of our court concluded that section 

1108 does not violate due process. (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) 

These courts reasoned that the discretion afforded trial judges under section 352 to 

exclude such evidence when the probative value is outweighed by its prejudicial effect or 

other counterweight is “ ‘a safeguard against the use of uncharged sex offenses in cases 

where the admission of such evidence could result in a fundamentally unfair trial.’ ” 

(Falsetta, at p. 917, quoting Fitch, at p. 183.) “ ‘With this check upon the admission of 

evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . 

section 1108 does not violate the due process clause.’ ” (Ibid.) As we will discuss, for 

the same reason, federal courts have rejected due process claims related to the federal 

evidence counterparts to sections 1108 and 352, and have long allowed, over due process 
28

challenges, the use of prior sex crimes and child molestation misconduct to show 

propensity.

“Available legislative history indicates section 1108 was intended in sex offense 

cases to relax the evidentiary restraints section 1101, subdivision (a),[11]imposed, to 

assure that the trier of fact would be made aware of the defendant’s other sex offenses in 

evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 

implicitly abrogates prior decisions . . . indicating that ‘propensity’ evidence is per se 

unduly prejudicial to the defense.” (Falsetta, supra, 21 Cal.4th at p. 911.) “ ‘Our elected 

Legislature has determined that the policy considerations favoring the exclusion of 

evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases 

by the policy considerations favoring the admission of such evidence. The Legislature 

has determined the need for this evidence is “critical” given the serious and secretive 

nature of sex crimes and the often resulting credibility contest at trial.’ ” (Id. at pp. 911-

912.)

Since Falsetta, the California Supreme Court has reiterated its position that section 

1108 does not violate due process (Villatoro, supra, 54 Cal.4th at p. 1160; People v. 

Reliford (2003) 29 Cal.4th 1007, 1009), and has expressly adhered to Falsetta (People v. 

Loy (2011) 52 Cal.4th 46, 61 (Loy) [rejecting a defendant’s request to reconsider 

Falsetta, noting that the defendant provided no good reason to do so]).

Thus, as defendant acknowledges, our high court has clearly ruled on the 

contention he advances here. Moreover, the court has signaled no changes on the 

 

11

 Section 1101, subdivision (a), is the general prohibition against the use of character 

evidence to prove propensity or disposition and provides: “Except as provided in this 

section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a 

trait of his or her character (whether in the form of an opinion, evidence of reputation, or 

evidence of specific instances of his or her conduct) is inadmissible when offered to 

prove his or her conduct on a specified occasion.”
29

horizon. The trial court, and this court, are bound by our high court’s decision in 

Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto 

Equity Sales).) Under these circumstances, defense counsel cannot be said to have 

performed deficiently for failing to raise an objection that was without legal basis and 

completely meritless. (People v. Cudjo (1993) 6 Cal.4th 585, 616 (Cudjo) [failure to 

object to the admission of evidence is not ineffective assistance where “there was no 

sound legal basis for objection”].)

3. McKinney and Federal Authorities

Defendant more than once states that he “recognizes our Supreme Court has found

section 1108 to be constitutional, but presents this pure question of law to preserve it for 

further review.” Defendant cites McKinney, supra, 993 F.2d 1378 and other older cases, 

in contending that admission of the section 1108 testimony violated his due process and a 

fair trial rights. McKinney is often cited in this context. However, as we have previously 

observed, a “[d]efendant’s reliance on McKinney—a case decided before enactment of 

the federal rules allowing evidence of uncharged sexual assaults and child molestation 

and the enactment of section 1108—is misplaced. [Citation.] The application of 

McKinney’s holding in the context of [uncharged sexual misconduct] evidence has been 

repeatedly rejected. [Citations.] The Ninth Circuit and other federal courts have long 

since upheld the constitutionality of the federal rules allowing sexual misconduct 

evidence to establish propensity to commit such crimes.” (People v. Holford (2012) 203 

Cal.App.4th 155, 183, fn. 19.)

Section 1108 was modeled after rule 413 of the Federal Rules of Evidence (rule 

413, 28 U.S.C.).

12

 (People v. Falsetta (1999) 21 Cal.4th 903, 912 (Falsetta).) The 

 

12

 Rule 413(a) provides in pertinent part: “[i]n a criminal case in which a defendant is 

accused of a sexual assault, the court may admit evidence that the defendant committed 
30

federal court cases rejecting due process challenges to rules 413 and 41413 are many and 

we have found no federal cases concluding that these rules of evidence offend due 

process. Recently, in United States v. Schaffer (2d Cir. 2017) 851 F.3d 166, the Second 

Circuit noted that under rule 413, the prosecution “may use evidence of prior sexual 

assaults precisely to show that a defendant has a pattern or propensity for committing 

sexual assault.” (Schaffer, at pp. 177-178, fn. omitted.) The Schaffer court observed:

“While we recognize that Rule 413 represents an exception to the general ‘ban against 

propensity evidence,’ we agree with every other court of appeals that has addressed this 

issue and hold that, in light of the safeguards provided by Rule 403,[14] Rule 413 on its 

face does not violate the Due Process Clause.” (Schaffer, at p. 177, fns. omitted, & fn.

56, citing United States v. Mound (8th Cir. 1998) 149 F.3d 799, 801, United States v. 

Enjady (10th Cir. 1998) 134 F.3d 1427, 1430-1433 (Enjady), United States v. LeMay (9th 

Cir. 2001) 260 F.3d 1018, 1026-1027 (LeMay) & United States v. Julian (7th Cir. 2005) 

427 F.3d 471, 487; see also United States v. Castillo (10th Cir. 1998) 140 F.3d 874, 880-

881.)

In McKinney, a murder victim’s throat was slit, and the medical examiner testified 

the wounds could have been caused by almost any kind of knife. (McKinney, supra, 993 

 

any other sexual assault. The evidence may be considered on any matter to which it is 

relevant.”

13

 Federal Rules of Evidence, rule 414 (rule 414), provides, in pertinent part: “In a 

criminal case in which a defendant is accused of child molestation, the court may admit 

evidence that the defendant committed any other child molestation. The evidence may be 

considered on any matter to which it is relevant.” (Rule 414(a), 28 U.S.C., boldface 

omitted.)

14

 Federal Rules of Evidence, rule 403 (rule 403, 28 U.S.C.), is the federal counterpart to 

section 352 and provides: “The court may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.”
31

F.2d at p. 1381.) A specific murder weapon was never identified. (Ibid.) The 

prosecution introduced evidence that the defendant had a knife collection of which he 

was proud and that he scratched on his dormitory closet door with a knife, “Death is His.” 

(Id. at p. 1382.) The Ninth Circuit concluded that this evidence was probative only of the 

defendant’s character and its admission violated the prohibition against evidence of bad 

character. (Id. at pp. 1384-1385.) It further held that, because that prohibition is based 

on the community’s sense of fair play and decency, the admission of the evidence 

violated due process. (Ibid.)

However, in LeMay, the Ninth Circuit rejected reliance on McKinney in a case 

involving evidence of uncharged acts of child molestation admitted under rule 414. 

(LeMay, supra, 260 F.3d at pp. 1026-1027.) The court noted that in McKinney it had 

held that propensity evidence “will only sometimes violate the constitutional right to a 

fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little 

relevance it might have. Potentially devastating evidence of little or no relevance would 

have to be excluded under Rule 403. Indeed, this is exactly what Rule 403 was designed 

to do. We therefore conclude that as long as the protections of Rule 403 remain in place 

so that district judges retain the authority to exclude potentially devastating evidence, 

Rule 414 is constitutional.” (LeMay, at p. 1027.) In light of the LeMay court’s rejection 

of McKinney in the context of the admissibility of prior acts of child molestation to show 

propensity, defendant’s reliance on McKinney is clearly misplaced.

15

 We expressly 

 

15

 Appellate counsel here would apparently have us ignore the federal authorities, 

including LeMay, because none of the federal cases published before this appeal were 

mentioned in defendant’s briefing. We remind counsel of our high court’s admonition 

that “[a]ttorneys are officers of the court and have an ethical obligation to advise the 

court of legal authority that is directly contrary to a claim being pressed.” (In re Reno 

(2012) 55 Cal.4th 428, 510, citing Batt v. City and County of San Francisco (2007) 155 

Cal.App.4th 65, 82, fn. 9.) As the court in Reno noted, “Rule 5-200 of the Rules of 

Professional Conduct addresses the issue and provides that, ‘[i]n presenting a matter to a 
32

reject McKinney as grounds upon which to find that section 1108 is constitutionally 

invalid on its face and conclude that trial counsel’s performance was not deficient for 

failure to rely upon it. (People v. Cudjo (1993) 6 Cal.4th 585, 616 [failure to object to the 

admission of evidence is not ineffective assistance where “there was no sound legal basis 

for objection”].)

California’s decisional law concerning the facial constitutionality of section 1108 

and the federal analogues are settled and have been settled for some time. We reject the 

contention as completely meritless, and thus we reject defendant’s contention that his 

trial counsel provided constitutionally ineffective assistance of counsel.

4. Constitutionality of Section 1108 as Applied

Defendant asserts that, had counsel objected to the admission of the evidence, the 

trial court would have engaged in a thorough analysis pursuant to section 352 and 

excluded the prior molestation evidence.16 Defendant also asserts, as part of his as-

 

tribunal, a member: [¶] (A) Shall employ . . . such means only as are consistent with 

truth; [and] [¶] (B) Shall not seek to mislead the judge . . . by an artifice or false 

statement of fact or law . . . .’ ” (In re Reno, at p. 510.) Relying on the Ninth Circuit’s 

decision in McKinney to advance and preserve the contention that section 1108 is facially 

unconstitutional, appellate counsel here failed to cite pertinent and contrary federal 

authorities even though he was obligated to do so.

16

 The record does not indicate that the trial court conducted an express section 352 

weighing analysis in deciding to admit the subject evidence. We note that reviewing 

courts “ ‘are willing to infer an implicit weighing by the trial court on the basis of record 

indications well short of an express statement.’ ” (Villatoro, supra, 54 Cal.4th at 

p. 1168.) We also note that section 1108, “expressly refers to section 352.” (Villatoro, at 

p. 1168.) Further, the prosecutor in moving for the admission of this evidence in her 

written in limine motions specifically raised the fact that evidence otherwise admissible 

pursuant to section 1108 is subject to a section 352 balancing analysis. Whether or not 

we should presume that the trial court indeed engaged in the required weighing analysis 

(see Villatoro, at p. 1168 [presuming that the court conducted the requisite weighing 

analysis based on language of § 1108 and trial court’s reference to a key case which 

involved a § 352 analysis]), as we shall discuss, defendant’s trial counsel’s performance 

was not deficient for failing to make an objection on section 352 grounds.
33

applied challenge, that section 1108 evidence, coupled with CALCRIM No. 1191, diluted 

the burden of proof and allowed him to be convicted on the charged offenses on lesser 

proof than proof beyond a reasonable doubt.

a. Section 352 Contention

Section 1108 expressly permits trial courts to exclude evidence of other sex crimes 

under section 352. (Falsetta, supra, 21 Cal.4th at p. 916.) Under section 352, “The court 

in its discretion may exclude evidence if its probative value is substantially outweighed

by the probability that its admission will (a) necessitate undue consumption of time or (b) 

create substantial danger of undue prejudice, of confusing the issues, or of misleading 

the jury.” (Italics added.) The Falsetta court provided a non-exclusive list of factors for 

courts to consider in conducting a section 352 analysis relative to proposed section 1108 

evidence, including: “its nature, relevance, and possible remoteness, the degree of 

certainty of its commission and the likelihood of confusing, misleading, or distracting the 

jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial 

impact on the jurors, the burden on the defendant in defending against the uncharged 

offense, and the availability of less prejudicial alternatives to its outright admission, such 

as admitting some but not all of the defendant’s other sex offenses, or excluding 

irrelevant though inflammatory details surrounding the offense.” (Falsetta, at p. 917.) 

Some of these factors are the considerations expressly set forth in section 352 and others 

are factors relevant to those considerations.

(1) Probative Value

“ ‘In enacting . . . section 1108, the Legislature decided evidence of uncharged 

sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed 

admissible without regard to the limitations of . . . section 1101.’ [Citation.] Or, as 

another court put it, ‘[t]he charged and uncharged crimes need not be sufficiently similar 

that evidence of the latter would be admissible under . . . section 1101, otherwise . . . 

section 1108 would serve no purpose. It is enough the charged and uncharged offenses 
34

are sex offenses as defined in section 1108.’ ” (Loy, supra, 52 Cal.4th at p. 63, italics 

added.)

Defendant argues that had the trial court engaged in a closely reasoned weighing 

process after being prompted to do so by the section 352 objection trial counsel failed to 

make, the trial court would have found that “the prior crime was so similar to the charged 

offense as to have the highest degree of prejudic[e] attached to it” and thus the evidence 

should have been excluded as more prejudicial than probative. We partially agree with 

defendant; the uncharged conduct was very similar to the charged conduct. But 

defendant is mistaken about how courts should consider this circumstance. While 

similarity is not required, it is a circumstance that cuts in favor of admissibility. The 

more similar the uncharged events are to the charged offenses, the greater the probative 

value is of that evidence. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 [one 

factor to consider in a § 1108 case is “whether the propensity evidence has probative 

value, e.g., whether the uncharged conduct is similar enough to the charged behavior to 

tend to show the defendant did in fact commit the charged offense”].) The similarity of 

the conduct here greatly enhanced the probative value of the uncharged conduct evidence 

to be weighed against the section 352 counterweights.

Defendant notes that his defense as to the charged victims and the section 1108 

victims was that they all were lying and they conspired with his ex-wife to fabricate the 

allegations. He complains that the section 1108 evidence was “used to buttress the 

credibility of the charged victims.” But again, defendant is mistaken as to how this 

circumstance should be considered. Credibility is precisely why the Legislature enacted 

section 1108, so “the trier of fact would be made aware of the defendant’s other sex 

offenses in evaluating the victim’s and defendant’s credibility” in deciding the 

“ ‘credibility contest’ ” such cases present. (Falsetta, supra, 21 Cal.4th at p. 911; accord,

Villatoro, supra, 54 Cal.4th at p. 1164 [legislative history noted “ ‘evidence that a 

particular defendant has such a propensity is especially probative and should be 
35

considered by the trier of fact when determining the credibility of a victim’s 

testimony’ ”].) Similarly, “[i]n passing Rule 413, Congress considered ‘[k]nowledge that 

the defendant has committed rapes on other occasions [to be] critical in assessing the 

relative plausibility of [sexual assault] claims and accurately deciding cases that would 

otherwise become unresolvable swearing matches.’ ” (United States v. Schaffer, supra, 

851 F.3d at p. 178, fn. omitted.) Given the similarity, the uncharged evidence here was 

highly probative of the victims’ testimony on the charged offenses.

Regarding the degree of certainty of the commission of the uncharged 

molestations, uncertainty can detract from the probative value of the evidence. Here, 

only the evidence concerning Ra. involved any uncertainty. As noted, she repeatedly 

testified that she did not remember defendant’s prior conduct. However, the evidence 

established that she was intentionally uncooperative because she had been pressured and 

intimidated by family. Moreover, a recording of her prior statements in which she 

described the molestations and the provision of pills was played for the jury. Even if we 

were to consider any uncertainty that developed as to the commission of defendant’s 

misconduct relative to Ra. because of her lack of cooperation, we conclude that 

uncertainty did not detract from the probative value of the evidence.

(2) Danger of Undue Consumption of Time

The probative value was not substantially outweighed by the probability that 

admission of the evidence would necessitate an undue consumption of time. The 

prosecution presented its first witness on Thursday, August 13, 2015, and defendant, the 

last witness at trial, finished testifying on Monday, August 24, concluding a total of five 

days of trial testimony. Eleven witnesses testified for the prosecution and three for the 

defense. Ra., the first witness to testify for the prosecution, was on the stand for no more 

than one hour five minutes, which included the playing of her recorded interview with 
36

Detective Jacobo. Ra.’s testimony spans 27 pages in the reporter’s transcript.17 P. also 

testified on the first day of trial. Her testimony lasted no more than 53 minutes. Her 

testimony spans 37 pages in the reporter’s transcript. Thus, the testimony of both of 

these witnesses does not constitute the “avalanche of uncharged evidence” described by 

defendant. “Conceivably a case could arise in which the time consumed trying the 

uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the 

defendant.” (People v. Frazier (2001) 89 Cal.App.4th 30, 42 [uncharged prior 

misconduct evidence consisting of 182 pages of reporter’s transcript, 27 percent of the 

total trial transcript, was not an undue consumption of time].) This is not such a case.

At the time the trial court granted the prosecution’s request that P.’s and Ra.’s 

testimonies be admitted pursuant to section 1108, the trial court may not have known 

with precision the amount of time their testimony would involve. However, based on the 

prosecutor’s offer of proof as to both section 1108 victims, Ra.’s preliminary hearing 

testimony, Jacobo’s testimony at the preliminary hearing concerning his interview with 

Ra., and the recording of his interview with Ra. which was also introduced into evidence 

at the preliminary hearing, the trial court could make an estimate and conclude that,

whatever amount of time their testimony would take, it would not be undue and it would 

not take more time than the evidence related to the charged offenses. Thus, under these 

circumstances and based on the proposed nature of their testimony, we conclude that the 

probative value of the section 1108 witnesses’s testimony was not substantially 

outweighed by a substantial danger that its admission would necessitate undue 

consumption of time.

 

17

 Relevant transcripts of her interviews with Jacobo occupy 27 pages in the clerk’s 

transcript.
37

(3) Danger of Undue Prejudice

“ ‘ “[T]he prejudice which exclusion of evidence under . . . section 352 is designed 

to avoid is not the prejudice or damage to a defense that naturally flows from relevant, 

highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or 

damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” 

The “prejudice” referred to in . . . 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. Holford, supra, 203 Cal.App.4th at p. 167

(Holford), quoting People v. Karis (1988) 46 Cal.3d 612, 638.) The danger of undue 

prejudice must be “substantial” and the evidence will not be excluded unless that 

“ ‘substantial danger’ ” “ ‘substantially’ ” outweighs the probative value of the evidence.

(Holford, at p. 167 [noting that our high court has emphasized the word “substantial” in §

352 and thus “[e]vidence is not inadmissible under section 352 unless the probative value 

is ‘substantially’ outweighed by the probability of a ‘substantial danger’ of undue 

prejudice or other statutory counterweights”].)

Prejudice can result when the uncharged conduct is inflammatory compared to the 

charged conduct. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-738 (Harris)

[concluding that the uncharged act evidence was “inflammatory in the extreme”].) Here, 

the section 1108 evidence was not inflammatory as far as child molestation allegations go 

and it was certainly no more inflammatory than evidence related to the charged offenses. 

“This circumstance decreased the potential for prejudice.” (People v. Ewoldt (1994) 7 

Cal.4th 380, 405 (Ewoldt).) Indeed, the charged offenses defendant committed against 

Ja., his biological daughter, were far more inflammatory given the duration of the abuse, 

the nature of the abuse, and the father-daughter relationship.

Remoteness can both detract from probative value and raise concerns of undue 

prejudice. The probative value of the evidence to show propensity might be low if there 

is a significant lapse of time between the uncharged prior misconduct and the charged 
38

offense. There might be prejudice related to defendant’s ability to defend against the 

uncharged conduct evidence if there is a significant lapse of time and witnesses or 

evidence are no longer available. However, the uncharged acts committed against Ra.

were no more remote in time than the earlier of the charged offenses, and the uncharged 

acts against P. were roughly contemporaneous with the charged acts committed against J.

The circumstance that the events underlying the uncharged molestations was roughly 

around the same time as the charged molestations enhances the probative value of that 

evidence to show propensity to commit the charged offenses. There was no gap in time 

during which the defendant led a blameless life. (See People v. Branch (2001) 91 

Cal.App.4th 274, 285 [“In theory, a substantial gap between the prior offenses and the 

charged offenses means that it is less likely that the defendant had the propensity to 

commit the charged offenses,” although “significant similarities between the prior and the 

charged offenses may ‘balance[] out the remoteness’ ”; “remarkably similar” prior 

offense properly admitted despite 30-year gap between prior and charged offenses]; see 

also Harris, supra, 60 Cal.App.4th at pp. 738-739 [23-year gap between prior offense and 

charged offenses, during which the defendant allegedly led an “unblemished life,” was “a 

long time” and the remoteness of the prior offense “weighs sharply in favor of 

exclusion”].) Nor did remoteness make it more burdensome for defendant to defend 

against the uncharged offenses (see generally Falsetta, supra, 21 Cal.4th at p. 917), 

particularly because he was on notice of the prosecution’s intent to present the section 

1108 evidence long before trial and his defense against the charged and uncharged acts 

was precisely the same: all of his accusers were lying as part of a conspiracy against him.

The uncharged acts did not result in criminal prosecutions or convictions, a 

circumstance which could give rise to the danger that the jury might have been inclined 

to punish defendant for those offenses, even if it did not consider him guilty of the 

charged offenses, thus increasing the danger of prejudice. (Ewoldt, supra, 7 Cal.4th at 

p. 405.) However, in light of the strong probative value of the evidence here, and the 
39

absence of any other significant factors weighing against the admission of the evidence, 

this consideration alone was not enough to warrant exclusion under section 352, 

particularly in light of the presumption that section 1108 evidence is admissible based on 

its “uniquely probative” character. (See Loy, supra, 52 Cal.4th at p. 62; People v. Britt

(2002) 104 Cal.App.4th 500, 505-506.)

(4) Danger of Confusing and Misleading the Jury

The uncharged acts were also not likely to confuse the issues or mislead the jury. 

The proposed evidence itself was not confusing, and it was abundantly clear that 

defendant was not charged with any acts related to P. or Ra. There was no reason to 

believe that the proposed testimony would distract the jurors from their main inquiry. 

And given the nature of the evidence the jury heard, we conclude that it did not.

(5) Section 352 Conclusion

Based on the information the trial court knew at the time it determined that P.’s 

and Ra.’s testimony would be admitted pursuant to section 1108, we conclude that there 

is virtually no possibility that, had defense counsel made a section 352 objection to this 

evidence, the court would have determined that the uniquely probative value of the 

evidence (Loy, supra, 52 Cal.4th at p. 63) would be “ ‘substantially’ outweighed by the 

probability of a ‘substantial danger’ of undue prejudice or other statutory 

counterweights.” (Holford, supra, 203 Cal.App.4th at p. 167.) Under these 

circumstances, defendant’s trial counsel cannot be said to have performed deficiently by 

not moving to exclude the evidence under section 352, a motion that would have had no 

hope for success. (See Cudjo, supra, 6 Cal.4th at p. 616.)

b. CALCRIM No. 1191

Defendant’s arguments implicating CALCRIM No. 1191 in his challenge to the 

constitutionality of section 1108 as applied overlap with his separate contention 

addressing CALCRIM No. 1191 and the preponderance of the evidence standard for 

considering uncharged acts, which we discuss in part II. of the Discussion, post. As we 
40

shall discuss, most of defendant’s arguments have been repeatedly rejected as to the 

modern versions of the section 1108 instructions. As to the one argument he makes that 

has apparently not been expressly addressed in a published case relative to CALCRIM 

No. 1191, we shall reject that argument as meritless. Therefore, defense counsel cannot 

be deemed to have performed deficiently for failing to raise unmeritorious objections.

(See Cudjo, supra, 6 Cal.4th at p. 616.)

II. CALCRIM No. 1191

A. Additional Background

The trial court instructed the jury with CALCRIM No. 1191 as follows: “The 

People presented evidence that the defendant committed crimes of sexual assault upon 

minors, namely [Ra.] and [P.], which were not charged in this case. The sexual assault 

crimes against [Ra.] and [P.] are defined for you in Instruction 1112. [¶] You may 

consider this evidence only if the People have proved by a preponderance of the evidence 

that the defendant in fact committed the uncharged offense. Proof by a preponderance of 

the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact 

is proved by a preponderance of the evidence if you conclude that it is more likely than 

not that the fact is true. [¶] If the People have not met this burden of proof, you must 

disregard this evidence entirely. [¶] If you decide that the defendant committed the 

uncharged offense, you may, but are not required to, conclude from that evidence that the 

defendant was disposed or inclined to commit sexual offenses and based on that decision, 

also conclude that the defendant was likely to commit the offenses as charged here. If 

you conclude that the defendant committed the uncharged offense, that conclusion is only 

one factor to consider along with all the other evidence. It is not sufficient by itself to 
41

prove that the defendant is guilty of the charged offenses. The People must still prove the 

charge beyond a reasonable doubt.”18

The prosecutor discussed the propensity evidence in her closing argument, stating, 

for example, “If you conclude that more likely than not those crimes occurred, you can 

use that as propensity evidence when you are evaluating the charged crimes. In other 

words, you can conclude that this defendant is disposed or inclined to commit sexual 

offenses and, therefore, that he was more likely to have committed the crimes for which 

he’s charged.” After detailing points from Ra.’s and P.’s testimony, the prosecutor 

stated, “So based on Ra.’s prior statements and P.’s testimony, you can conclude that the 

defendant has a propensity to commit sexual offenses, and you can build that into your 

evaluation of the current charges.”

B. Defendant’s Contentions

Defendant asserts that CALCRIM No. 1191 is flawed because it allows jurors to 

infer guilt based merely on the commission of other crimes established only by a 

preponderance of the evidence, effectively reducing the burden of proof and violating his 

due process rights. More specifically, defendant asserts: “The instruction tell[s] jurors 

 

18

 When the trial court read CALCRIM No. 1191 to the jury, twice it interposed the 

word “others” for the term “the charged offenses.” However, the trial court corrected 

itself as it finished reading the instruction to the jury, and the written jury instructions, as 

corrected in handwriting, accurately reflect the correct instruction. Additionally, in 

reading the instruction to the jury, it appears that the trial court omitted the last sentence 

reading, “The People must still prove the charge beyond a reasonable doubt.” However, 

the written jury instructions included this sentence. “We of course presume ‘that jurors 

understand and follow the court’s instructions.’ ” (People v. Wilson (2008) 44 Cal.4th 

758, 803.) “This presumption includes the written instructions.” (Ibid.) “ ‘To the extent 

a discrepancy exists between the written and oral versions of jury instructions, the written 

instructions provided to the jury will control.’ ” (People v. Mills (2010) 48 Cal.4th 158, 

201.) Because the jury was given the correctly worded instruction in written form, and 

because, on appeal, we give precedence to the written instructions (ibid.), we disregard 

the error in the oral reading which was not raised by either party.
42

that they may ignore the general presumption of innocence and infer guilt based, not on 

their evaluation of the evidence of the present offense, but upon their finding of another 

sexual offense by a lower standard of proof.” Defendant emphasizes that, while the 

instruction does state that jurors may not find a defendant guilty based only on uncharged 

offenses, it neither reiterates the presumption of innocence nor “counter[s] the effective 

presumption of guilt permitted by the language of the instruction.” Defendant further 

asserts that CALCRIM No. 1191 is confusing, internally inconsistent and inconsistent 

with the instruction on circumstantial evidence. He concedes that the California Supreme 

Court has approved of a substantially similar instruction and that this court is bound by 

our high court’s precedent, but again states that he is raising the issue to preserve it for 

federal review.19 While defendant acknowledges that trial counsel did not object to 

 

19

 We note that federal district courts are required to “make a preliminary finding that a 

jury could reasonably find by a preponderance of the evidence that the defendant 

committed the [uncharged sexual offense] and that it constituted an ‘offense of sexual 

assault’ for purposes of Rule 413.” (United States v. Dillon (5th Cir. 2008) 532 F.3d 379, 

387, citing United States v. Guidry (5th Cir. 2006) 456 F.3d 493, 501, 503, fn. 5; Enjady, 

supra, 134 F.3d at p. 1433; Johnson v. Elk Lake School Dist. (3d Cir. 2002) 283 F.3d 

138, 152-155; see also Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 6 [noting that “[p]roof 

of prior bad acts, where it is permitted, requires only a preponderance of the evidence, 

rather than proof beyond a reasonable doubt as in a criminal trial”].) Similarly, evidence 

proffered pursuant to rule 414, must be sufficient to support a finding by a preponderance 

of the evidence that the defendant committed the subject acts. (United States v. McHorse

(10th Cir. 1999) 179 F.3d 889, 899 [discussing the admission of such evidence based on a 

rule 403 balancing].) A number of the federal circuits do not appear to require that the 

district courts instruct jurors that before they consider such evidence, they must find that 

the prosecution established the uncharged acts by a preponderance of the evidence, or by 

any particular standard, but instead these district courts only instruct the jurors as to the 

purposes for which the evidence may be used. (E.g., 9th Cir. Crim. Jury Instns. (2010) 

Instn. No. 2.12 <http://www3.ce9.uscourts.gov/jury-instructions/node/328> [as of 

Nov. 28, 2018], archived at <https://perma.cc/SC2K-AYGN> [“You are about to hear 

evidence that the defendant [may have committed] [was convicted of] a similar offense of 

[sexual assault] [child molestation]. [¶] You may use this evidence to decide whether the 

defendant committed the act charged in the indictment. You may not convict the 

defendant simply because he [may have committed] [was convicted of] other unlawful 
43

CALCRIM No. 1191, he asserts that, because the issue affects his substantial rights, he 

may raise this issue for first time on appeal.

C. Forfeiture

“ ‘Generally, a party may not complain on appeal that an instruction correct in law 

and responsive to the evidence was too general or incomplete unless the party has 

requested appropriate clarifying or amplifying language.’ ” (People v. Hudson (2006) 38 

Cal.4th 1002, 1011-1012.) As defendant asserts, however, we may review his contention 

concerning an instruction given “if the substantial rights of the defendant were affected 

thereby.” (Pen. Code, § 1259.) “ ‘Ascertaining whether claimed instructional error 

affected the substantial rights of the defendant necessarily requires an examination of the 

merits of the claim—at least to the extent of ascertaining whether the asserted error 

would result in prejudice if error it was.’ ” (People v. Ramos (2008) 163 Cal.App.4th 

1082, 1087 (Ramos).) We next consider the merits and reject defendant’s contentions.

D. Analysis

Our high court has held that CALJIC No. 2.50.01, the predecessor to CALCRIM 

No. 1191, is a correct statement of the law. (People v. Villatoro (2012) 54 Cal.4th 1152,

1160, citing People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford) [requiring 

§ 1108 evidence be proved by a preponderance of the evidence does not reduce the 

prosecution’s burden of proof as to the charged offenses].) For the purpose of evaluating 

 

acts. You may give this evidence such weight as you think it should receive or no 

weight. [¶] [You may not use this evidence, however, to decide whether the defendant 

[insert improper purpose, e.g., made a statement in this case or destroyed evidence in this 

case].]”; id., Instn. No. 2.13 <http://www3.ce9.uscourts.gov/jury-instructions/node/323> 

[as of Nov. 28, 2018], archived at <https://perma.cc/2DL4-XV42> [limited purpose of 

evidence].) However, in the Eighth Circuit, courts do instruct the jury that they may 

consider the uncharged sexual misconduct only if the jurors unanimously find that the 

evidence “is more likely true than not true.” (8th Cir. Crim. Jury Instns. (2017) Instn. 

No. 2.08A, p. 41 <http://www.juryinstructions.ca8.uscourts.gov/Criminal-JuryInstructions-2017.pdf> [as of Nov. 28, 2018], archived at <https://perma.cc/SGL7-

BARZ>.)
44

defendant’s claims, there is no material difference between CALCRIM No. 1191 and its 

predecessor CALJIC No. 2.50.01. (People v. Cromp (2007) 153 Cal.App.4th 476, 480; 

People v. Schnabel (2007) 150 Cal.App.4th 83, 87.) Thus, relying on Reliford, the 

Courts of Appeal for the Second District and this district have concluded that CALCRIM 

No. 1191 is also correct statement of the law and does not reduce the prosecution’s 

burden of proof. (People v. Anderson (2012) 208 Cal.App.4th 851, 895-898; Cromp, at 

p. 479; Schnabel, at p. 87.) Defendant’s arguments here concerning CALCRIM 

No. 1191—purported reduction of the burden of proof, the instruction allows jurors to 

find a defendant guilty solely based on prior uncharged acts, and that the instruction is 

confusing and misleading because it employs a different standard of proof for the prior 

sexual offense findings than for the jury’s ultimate determination of guilt—are all 

foreclosed by our high court’s analysis and conclusions in Reliford. (Reliford, at 

pp. 1013-1016.) As this court noted in Schnabel, “[w]e are in no position to reconsider 

the Supreme Court’s holding in Reliford [citation], and by analogy to Reliford, we reject 

defendant’s argument regarding the jury instruction on use of his prior sex offenses.” 

(Schnabel, at p. 87, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.)

However, defendant makes one argument not expressly addressed by our high 

court in Reliford and not addressed in any case published since Reliford. Defendant 

contends that the asserted confusion engendered by CALCRIM No. 1191 was 

compounded by CALCRIM No. 224, the instruction on circumstantial evidence. 

Defendant focuses on the first paragraph in CALCRIM No. 224, which reads in pertinent 

part: “Before you may rely on circumstantial evidence to conclude that a fact necessary 

to find the defendant guilty has been proved, you must be convinced that the People have 
45

proved each fact essential to that conclusion beyond a reasonable doubt.”20 Defendant 

asserts that CALCRIM No. 1191 contradicts CALCRIM No. 224 because the former tells 

the jurors that, if they conclude that the prosecution established by a preponderance of 

the evidence that defendant committed the prior sexual offenses, the jurors may conclude 

from that evidence that defendant was likely to commit the charged offenses. CALCRIM 

No. 224 addressing circumstantial evidence, on the other hand, tells the jurors that each 

fact essential to a conclusion of guilt must be proved beyond a reasonable doubt. We 

reject defendant’s contention for three reasons. First, in advancing this argument, 

defendant relies on a case that predated Reliford and addressed an earlier, flawed version 

of the section 1108 instruction. Second, the reasoning in Reliford concerning section 

1108 evidence and subsequent cases from our high court concerning section 1108 and 

section 1101, subdivision (b), evidence compels rejection of defendant’s claim. Third, 

 

20

 It is not clear why the trial court gave CALCRIM No. 224, which should not be used 

when the circumstantial evidence is incidental to and corroborative of direct evidence. 

(People v. Malbrough (1961) 55 Cal.2d 249, 250-251; People v. Shea (1995) 39 

Cal.App.4th 1257, 1270-1271 [noting that the CALJIC predecessor to CALCRIM 

No. 224 should not have been given in a sexual assault case based on the testimony of the 

victim and the defendant on the issue of consent-no consent]; see also People v. 

Thongvilay (1998) 62 Cal.App.4th 71, 86-87 [circumstantial evidence instruction not 

required where the prosecution was based on witness testimony and the defendant’s 

admissions]; Judicial Council of Cal., Crim. Jury Instns. (2018) Bench Notes to 

CALCRIM No. 224, p. 52.) The instant prosecution was a direct evidence case as to 

defendant’s conduct; any circumstantial evidence of defendant’s conduct was 

corroborative of the direct evidence presented by the testimony of the victims. 

Nevertheless, because the evidence at issue here was circumstantial evidence of 

defendant’s propensity and a propensity is not only circumstantial evidence defendant 

may have committed the charged crime (Falsetta, supra, 21 Cal.4th at p. 915; People v.

Karis (1988) 46 Cal.3d 612, 636), but also has some bearing on the requisite intent and/or 

mental state, it would have been appropriate to give CALCRIM No. 225. That 

instruction pertains to circumstantial evidence used to prove the requisite intent or mental 

state and contains the same language as that in CALCRIM No. 224 upon which 

defendant focuses. Defendant makes no argument about the use of CALCRIM No. 224 

instead of 225 and thus we have no occasion to further discuss it.
46

the wording of CALCRIM No. 1191 clearly tells juries that even if they find defendant 

committed the uncharged sexual misconduct, the reasonable doubt standard still applies

to the charged offenses.

Defendant relies on People v. Frazier (2001) 89 Cal.App.4th 30 (Frazier), a case 

decided nearly two years before Reliford, in contending that the current section 1108 and 

circumstantial evidence instructions are in conflict. The problem with defendant’s 

position is that Frazier involved a prior version of the section 1108 instruction. That 

instruction, an earlier version of CALJIC No. 2.50.01, told juries that “ ‘[i]f you find the 

defendant committed a prior sexual offense, you may but are not required to infer that the 

defendant had a disposition to commit sexual offenses. If you find the defendant had this 

disposition, you may, but are not required to infer that he was likely to and did commit

the crimes of which he is accused.’ ” (Frazier, at p. 34.) Also, the instruction did not 

include the cautionary instruction added in a later version of CALJIC No. 2.50.01, which 

stated: “ ‘However, if you find by a preponderance of the evidence that the defendant 

committed prior sexual offenses, that is not sufficient by itself to prove beyond a 

reasonable doubt that he committed the charged crimes.’ ” (Frazier, at pp. 34-35, fn. 

omitted.) The Frazier court held that the instruction was constitutionally infirm because 

it told jurors they could convict the defendant of the charged offenses based solely on 

their determination he had committed prior sexual offenses. (Id. at p. 35.) The court

reasoned that the “and did commit” language told jurors that “proof of prior sexual 

offenses is enough to prove guilt of the current offenses” (id. at p. 36, fn. omitted) and no 

instruction countered or made up for the message that jurors could convict solely based 

on a determination that the defendant committed the prior offenses (id. at p. 35). The 

court then went on to address the People’s contention that defects in an instruction can be

viewed as harmless when cured by other instructions. (Id. at p. 36.) On this point, the 

court reasoned that the combination of the preponderance of the evidence standard to 

determine whether the defendant had committed the prior offenses and the circumstantial 
47

evidence instruction, which told the jury each fact supporting an inference essential to 

establish guilt must be proven beyond a reasonable doubt, added to the confusion. (Id. at 

pp. 36-37.) “If the jury believed the propensity evidence was essential to establish 

defendant’s guilt, then [the circumstantial evidence instruction] was in direct conflict 

with [the preponderance of the evidence instruction].” (Id. at p. 37, fn. omitted.) The 

confusion that results from “attempting to apply the [trial] court’s instructions ‘as a 

whole,’ ” the court reasoned, would tempt juries “to take the path of least resistance 

which leads directly from evidence of the defendant’s disposition to a guilty verdict.” 

(Ibid.) Based on all of these reasons, the court concluded the older version of the section 

1108 instruction it reviewed denied the defendant due process because it allowed the jury 

to convict him without proof beyond a reasonable doubt as to every element of the 

charged offenses. (Frazier, at p. 37.) Frazier has not been relied upon in any published 

case for its discussion concerning the section 1108 and circumstantial evidence 

instructions.

CALCRIM No. 1191 does not suffer from the same shortcomings as the section 

1108 instruction analyzed in Frazier. Those shortcomings were corrected in later 

versions of CALJIC No. 2.50.01 and do not appear in CALCRIM No. 1191. The “and 

did commit” language has long since been eliminated. (See People v. James (2000) 81 

Cal.App.4th 1343, 1348, fn. 8 [suggesting that the “ ‘and did commit’ ” language be 

omitted from CALJIC instruction].)

Furthermore, despite the fact that the revised CALJIC No. 2.50.01 instruction in 

Reliford included the “and did commit” language (Reliford, supra, 29 Cal.4th at p. 1012), 

the court nevertheless approved of the instruction. The revised instruction the Reliford

court reviewed instructed that if jurors found by a preponderance of the evidence that the

defendant committed the uncharged offenses, that finding was not sufficient by itself to 

prove beyond a reasonable doubt that the defendant committed the charged crimes. (Id.

at p. 1013.) “By telling jurors that evidence of prior offenses is insufficient to prove 
48

defendant’s guilt of the charged offenses beyond a reasonable doubt, jurors necessarily 

understand that they must consider all the other evidence before convicting defendant.” 

(Id. at p. 1015.)21

CALCRIM No. 1191 includes similar language in addition to other important 

admonitions. In addressing when and how juries may consider evidence of prior acts of 

sexual misconduct under section 1108, CALCRIM No. 1191 tells jurors: (1) they may 

not even consider the evidence unless it is proved by a preponderance of the evidence; (2) 

if they decide that standard is met, they “may, but are not required to, conclude from that 

evidence that the defendant was disposed or inclined to commit sexual offenses”; (3) 

based on that decision, they may conclude that the defendant was likely to commit the 

charged offenses (not that he did commit the charged offenses); (4) the determination the 

defendant committed the prior misconduct “is only one factor to consider along with all 

the other evidence”; (5) the determination the defendant committed the prior acts is “not 

sufficient by itself to prove that the defendant is guilty of” the charged offenses; and (6) 

“[t]he People must still prove” the charge “beyond a reasonable doubt.” (Italics added.) 

Consistent with Reliford, CALCRIM No. 1191 cautions jurors that the propensity 

inference is not sufficient to prove the charged offenses; it also does not include the “and 

did commit” language the Frazier court found so problematic.

Moreover, our high court’s discussion in Reliford concerning the circumstantial 

evidence instruction convinces us that defendant’s position lacks merit. In sanctioning 

the preponderance of the evidence standard for considering section 1108 evidence, the 

court in Reliford actually relied upon the fact that the jury had been given instructions on 

 

21

 Later, in Loy, another case reviewing a section 1108 instruction that included the “and 

did commit” language, our high court observed that, while “[i]t is no doubt useful to 

admonish the jury specifically that evidence of the prior sexual offense alone is not 

sufficient to convict,” it is not critical. (People v. Loy (2011) 52 Cal.4th 46, 74 (Loy).)
49

circumstantial evidence and the burden of proof regarding the charged offenses. 

“Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence 

standard for anything other than the preliminary determination whether defendant 

committed a prior sexual offense . . . . The instructions instead explained that, in all other 

respects, the People had the burden of proving defendant guilty ‘beyond a reasonable 

doubt.’ [Citations.] . . . In addition, the jury was told that circumstantial evidence could 

support a finding of guilt of the charged offenses only if the proved circumstances could 

not be reconciled with any other rational conclusion [citation]—which is merely another 

way of restating the reasonable-doubt standard. [Citation.] The jury thus would have 

understood that a conviction that relied on inferences to be drawn from defendant’s prior 

offense would have to be proved beyond a reasonable doubt.” (Reliford, supra, 29 

Cal.4th at p. 1016.) Thus, it is apparent our high court saw no conflict between the 

section 1108 instruction and the circumstantial evidence instruction.

In Loy, supra, 52 Cal.4th 46, our high court further discussed circumstantial 

evidence in the context of approving a section 1108 evidence instruction. The court 

observed that the earlier version of CALJIC No. 2.50.01 under consideration there, 

“merely told the jury it could ‘infer’ from defendant’s prior sexual crimes that he 

committed the charged crime. It did not say such an inference itself constituted proof 

beyond a reasonable doubt. The jury was also instructed that ‘an inference is a deduction 

of fact that can logically and reasonably be drawn from another fact or group of facts 

established by the evidence.’ [Citation.] But a logical deduction is not the same as proof 

beyond a reasonable doubt. No reasonable jury would assume that this inference, i.e., 

this logical deduction, substituted for proof beyond a reasonable doubt. The instructions 

given ‘provide only that an inference of guilt may be drawn from prior offenses that have 

been proved by a preponderance of evidence. They do not suggest that an inference so 

drawn is sufficient for a finding of guilt.’ [Citation.] The jury still had to find that the 
50

facts of the charged crime had been proved beyond a reasonable doubt.” (Loy, at p. 75.) 

The same could be said for CALCRIM No. 1191.

Our high court’s discussion of the circumstantial evidence instruction in Reliford

and circumstantial evidence in general in Loy is consistent with the court’s more recent 

discussion specific to the circumstantial evidence instruction and the preponderance 

standard as it relates to section 1101, subdivision (b), uncharged misconduct evidence.22 

Our high court has explained that the beyond a reasonable doubt standard of proof 

applicable to circumstantial evidence generally and the preponderance of the evidence 

standard applicable to other crimes evidence “are reconciled by the different purposes for 

which the evidence is used. When evidence of uncharged misconduct is admitted for the 

purpose of establishing identity or intent, we have explained that the crimes are mere 

‘evidentiary facts.’ [Citation.] The jury cannot consider them at all unless they find them 

proven by a preponderance of the evidence. ‘If the jury finds by a preponderance of the 

evidence that defendant committed the other crimes, the evidence is clearly relevant and 

may therefore be considered. [Citations.]’ [Citation.] If the jury finds the facts 

sufficiently proven for consideration, it must still decide whether the facts are sufficient, 

taken with all the other evidence, to prove the defendant’s guilt beyond a reasonable 

doubt.” (People v. Virgil (2011) 51 Cal.4th 1210, 1259-1260 (Virgil), citing People v. 

Medina (1995) 11 Cal.4th 694, 763 & People v. Foster (2010) 50 Cal.4th 1301, 1347-

1348 (Foster).) In Virgil, Foster, and Medina, the uncharged misconduct evidence was 

admitted to prove identity. (Virgil, at p. 1258; Foster, at pp. 1346-1348; Medina, at pp. 

747-748.) Identity is an ultimate fact, as are the elements of the crime which must be 

 

22

 Section 1101, subdivision (b), provides prior misconduct may be admitted for a 

noncharacter purpose such as “motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident, or whether a defendant in a prosecution for an 

unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith 

believe that the victim consented.”
51

proved beyond a reasonable doubt. (People v. Thompson (1980) 27 Cal.3d 303, 315, 

fn. 13.) Propensity is considered an intermediate fact. (Id. at p. 317, fn. 17.) An 

intermediate fact is a fact from which the existence of an ultimate fact may be drawn.

(Id. at p. 315.) Unlike ultimate facts, the prosecution is under no obligation to prove 

intermediate facts to establish the charged offenses. We see no reason why the reasoning 

from Virgil, Foster, and Medina concerning the section 1101, subdivision (b), instruction 

pertaining to the ultimate fact of the identity of the perpetrator should not apply to section 

1108 evidence admitted to show the intermediate fact of propensity, a fact the 

prosecution is not required to prove to establish the charged offenses.

Lastly, the final sentence in CALCRIM No. 1191 tells jurors, “[t]he People must 

still prove” the charge “beyond a reasonable doubt.” (Italics added.) Thus, the jurors are 

effectively admonished that, even if they find defendant committed the uncharged sexual 

misconduct, the reasonable doubt standard “still” applies to the charged offenses.23

We conclude that the jurors could readily understand the distinction drawn, and 

the differing burdens of proof attached to CALCRIM Nos. 224 and 1191. We further 

conclude that it is not reasonably likely a jury would conclude that the lower standard of 

proof applicable to the uncharged offenses would apply to the proof of the charged 

offenses. (Reliford, supra, 29 Cal.4th at pp. 1012-1016.)

To the extent that defendant’s contentions are not foreclosed by binding precedent 

from our high court, we conclude that they lack merit.

 

23

 We may also consider the argument of counsel in determining the effect on a jury of 

purported confusion or ambiguity in jury instructions. We note the prosecutor said 

nothing that would cause the jury to convict of the charged offenses based solely on the 

propensity evidence or to convict him of the charged offenses based on the 

preponderance of the evidence standard.
52

III. Child Sexual Abuse Accommodation Syndrome Evidence

A. Additional Background

Dr. Anthony Urquiza testified as an expert for the prosecution on the topic of 

CSAAS. CSAAS consists of five emotional behaviors that have been observed in 

children who have experienced sexual abuse: (1) secrecy; (2) helplessness; 

(3) entrapment and accommodation; (4) delayed disclosure; and (5) retraction. 

(See People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker).)

Urquiza testified that that CSAAS, established by Roland Summit in 1983, serves 

the purpose of educating therapists who are treating children who have been sexually 

abused in an effort to teach them “about the context in which abuse happens, what are the 

common characteristics, common behaviors, common things that abused children --

sexually abused children do, and to dispel any misperceptions or myths that those 

therapists may have had about sexual abuse.” Urquiza testified that CSAAS “is an 

educational tool initially designed to educate therapists about common characteristics of 

sexual abuse” and “[i]t is not and should not be used as a diagnosis of any type.” On 

cross-examination, Urquiza acknowledged that CSAAS starts with the premise that the 

child has been sexually abused, and is used to better understand the victim. Urquiza 

testified that there are five components of CSAAS.

The first component, secrecy, addresses why a child would keep sexual abuse a 

secret. Among the ways someone may coerce a sexually abused child to keep the abuse

secret are overt threats, intimidation, and affection, in which the perpetrator may provide 

the victim with “special attention, gifts, favors, affection, make them feel really good and 

wanted, sometimes maybe even make them feel loved.” Perpetrators may make 

statements to dissuade the victims from disclosing the abuse, such as indicating that 

disclosure could lead to breaking up the family, the child would be sent to foster care, and 

the child would not be believed. Urquiza testified that abusers sexually abuse victims 

while others are in the house “all the time.” He testified: “That’s part of what sexual 
53

abuse is about, keeping the secret, not allowing other people to know what’s going on. 

And other family members, mom, siblings, usually don’t know what goes on.”

The second component is helplessness. Because sexual abusers of children are 

often in a preexisting, ongoing relationship with the child, the abuser has power and 

control over the child, and there is “really nothing you can do.” In such circumstances, it 

is not reasonable to expect the victims to initiate self-protective behavior.

The third component is entrapment and accommodation. Entrapment, according 

to Urquiza, essentially refers to the fact that the victim is “stuck” in the situation; the 

victim cannot tell anyone, cannot do anything about the fact that they are going to be 

abused again, and are helpless. Additionally, Urquiza testified that there is “lots of guilt 

involved in being sexually abused.” He continued: “We know that in a perpetratorvictim relationship, the person who’s responsible is the perpetrator. But that’s not clear 

in the mind of the victim when they’re being abused. They think maybe there’s 

something that they did that contributed to the abuse or they should have done something. 

So they often get confused about guilt and responsibility.” Victims have to try to learn 

how to cope with the circumstances. Among the coping mechanisms, Urquiza discussed 

dissociation.

The fourth component is delayed and unconvincing disclosure. According to 

Urquiza, because of the factors at work, it is reasonable for there to be a lengthy delay in 

reporting instances of sexual abuse. Urquiza testified that most victims do not disclose 

for months or years, and delayed disclosure is pretty common. Further, because some 

children may make an initial disclosure, and, if the response is supportive, make 

successively more detailed disclosures, the disclosure may seem unconvincing because 

there are many versions of the disclosure.

The final component of CSAAS is retraction. According to Urquiza, 20 to 25 

percent of children who have been sexually abused and disclose the abuse retract the 

allegations. Among the factors that can contribute to retraction include pressure exerted 
54

on the victim, affection for or closeness to the perpetrator, and awareness that the 

perpetrator will face negative consequences as a result of the disclosure.

On cross-examination, Urquiza testified that, while rare, false allegations of child 

sex abuse do happen. He testified that such false allegations occur in a range of one to 

six percent of cases.

In her closing argument, defense counsel asserted that Urquiza’s testimony was 

“pretty much inapplicable when we’re talking about false accusations. And he said that 

himself. He said the center [sic] he discusses doesn’t apply to cases of false accusations.”

The prosecutor, in her rebuttal closing argument, also mentioned Urquiza’s 

testimony, specifically in the context of describing factors that increase the likelihood 

that a victim will recant.

B. Defendant’s Contentions

Defendant asserts that the trial court abused its discretion in admitting CSAAS 

evidence which, according to defendant, was irrelevant and unduly prejudicial in

violation of his right to due process and a fair trial. Defendant asserts that the behaviors 

allegedly indicative of CSAAS are equally consistent with individuals making false 

accusations and can easily be misconstrued as corroboration of victim claims. Defendant 

asserts that “CSAAS testimony lacks foundation, is misleading, involves an undue 

consumption of time, and misleads and confuses the jury.” According to defendant, no 

witness had recanted, and if delayed reporting was not a misconception held by the jury, 

there was no basis for the introduction of CSAAS evidence. Defendant also asserts, more 

broadly, that the reason that CSAAS testimony was once warranted no longer exists, as it 

is now common knowledge that children recant, delay in reporting, and do not report. 

Defendant asserts that CSAAS testimony amounts to “pseudoscience” designed to secure 

convictions in that it merely bolsters the credibility of child victims. Defendant further 

asserts that other jurisdictions have found CSAAS evidence inadmissible, and that 
55

CSAAS evidence does not satisfy the Kelly/Frye test for admissibility.

24 However, 

defendant does recognize that California courts have routinely admitted CSAAS 

evidence.

C. Forfeiture

Ordinarily, the failure to object to the admission of evidence, including expert 

testimony, forfeits a claim on appeal that the evidence was improperly admitted. (§ 353, 

subd. (a); People v. Stevens (2015) 62 Cal.4th 325, 333.) Defendant acknowledges that 

he did not object to the admission of the CSAAS evidence in the trial court, thus 

forfeiting his contention on appeal. (See People v. Dykes (2009) 46 Cal.4th 731, 756 

[“numerous decisions by this court have established the general rule that trial counsel’s 

failure to object to claimed evidentiary error on the same ground asserted on appeal 

results in a forfeiture of the issue on appeal”].) Under a separate heading, defendant 

asserts that, on this basis too, he was denied the constitutionally effective assistance of 

counsel.

D. Ineffective Assistance of Counsel

In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our high court approved 

of the decisions of Courts of Appeal that had held that CSAAS testimony is admissible 

for some purposes. (Id. at p. 1300.) McAlpin was followed by People v. Brown (2004) 

33 Cal.4th 892, which upheld the use of expert testimony concerning battered women’s 

syndrome and which expressly did so based on similar reasoning to that in McAlpin. 

(Brown, at pp. 905-907.) It is well-settled that CSAAS evidence is admissible for the 

limited purpose it was admitted for in this case. (McAlpin, at pp. 1300-1301.) We are

bound by our high court’s reasoning in these cases. (See Auto Equity Sales, supra, 57 

Cal.2d 450; see also People v. Perez (2010) 182 Cal.App.4th 231, 245 (Perez).)

 

24

 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 

1013.
56

While CSAAS testimony is inadmissible to prove that a molestation occurred, it is 

nevertheless admissible “ ‘to rehabilitate [the molestation victim’s] credibility when the 

defendant suggests that the child’s conduct after the incident—e.g., a delay in reporting—

is inconsistent with his or her testimony claiming molestation.’ ” (People v. Sandoval

(2008) 164 Cal.App.4th 994, 1001, quoting McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) 

CSAAS evidence has been held admissible “ ‘ “to disabuse jurors of commonly held 

misconceptions about child sexual abuse, and to explain the emotional antecedents of 

abused children’s seemingly self-impeaching behavior.” ’ ” (Sandoval, at p. 1002, 

quoting McAlpin, at p. 1301.) “ ‘For instance, where a child delays a significant period of 

time before reporting an incident or pattern of abuse, an expert could testify that such 

delayed reporting is not inconsistent with the secretive environment often created by an 

abuser who occupies a position of trust. Where an alleged victim recants his [or her]

story in whole or in part, a psychologist could testify on the basis of past research that 

such behavior is not an uncommon response for an abused child who is seeking to 

remove himself or herself from the pressure created by police investigations and 

subsequent court proceedings. In the typical criminal case . . . , it is the People’s burden 

to identify the myth or misconception the evidence is designed to rebut.’ ” (Sandoval, at 

p. 1002, quoting Bowker, supra, 203 Cal.App.3d at p. 394.)

“Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the 

prosecution to expressly state on the record the evidence which is inconsistent with the 

finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to 

the paradoxical behavior, including a delay in reporting a molestation.” (People v. Patino

(1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) Inconsistencies in the victim’s 

statements may also support the use of CSAAS evidence. (Perez, supra, 182 Cal.App.4th 

at p. 245.) Additionally, “[a]dmission of evidence such as CSAAS is not error merely 

because it was introduced as part of the prosecution’s case-in-chief rather than in rebuttal. 
57

The testimony is pertinent and admissible if an issue has been raised as to the victim’s 

credibility.” (Patino, at p. 1745.)

“[T]he decision of a trial court to admit expert testimony ‘will not be disturbed on 

appeal unless a manifest abuse of discretion is shown.’ ” (McAlpin, supra, 53 Cal.3d at 

p. 1299.)

Defendant concedes that “California courts have generally admitted CSAAS 

evidence to ‘dispel myths’ concerning the behavior of child molestation victims.” 

However, defendant asserts that CSAAS evidence does not meet the legal requirements 

for the admissibility of scientific evidence and should not have been admitted at his trial. 

As stated ante, we are bound by our high court’s reasoning in cases such as McAlpin, 

supra, 53 Cal.3d 1289, concluding that CSAAS evidence is admissible for some 

purposes. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.) Defendant’s contention 

that the myths no longer exist is not supported by any evidence in the record whatsoever. 

Thus, his arguments that CSAAS testimony was once warranted but the underlying 

reason for such testimony no longer exists, and that it is now “common knowledge” that 

children recant, delay in reporting, and do not report are insufficient to counter binding 

precedent from our high court. Similarly, in the face of binding precedent from our high 

court, the fact that other jurisdictions may exclude CSAAS evidence does not affect our 

determination.

Moreover, the purposes for which CSAAS evidence may be properly admitted

were very much at issue in this case. Here, the defense raised in its opening statement

Ja.’s early inconsistent statements about whether defendant was molesting her, telling R.

that he was and then telling law enforcement that he was not. Also in its opening 

statement, the defense emphasized that the witnesses had “given inconsistent statements.” 

The victims’ substantial delay in reporting the abuse (with the exception of L.) and their 

inconsistent statements were at issue and raised throughout trial.
58

As for defendant’s Kelly/Frye challenge, that contention has been rejected by 

California courts. (People v. Housley (1992) 6 Cal.App.4th 947, 954-956 (Housley); 

Bowker, supra, 203 Cal.App.3d at pp. 391-394.) The Kelly/Frye test does not prohibit 

the use of CSAAS evidence in the manner it was employed in this case. (People v. 

Harlan (1990) 222 Cal.App.3d 439, 448-449.)

The trial court instructed the jury with CALCRIM No. 1193,25 stating in relevant 

part: “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 the conduct of [J., L., Ja., 

Ra.,] and/or [P.] was not inconsistent with the conduct of someone who has been 

molested, and in evaluating the believability of that person’s testimony.”26 “We of 

course presume ‘that jurors understand and follow the court’s instructions.’ ” (People v. 

Wilson, supra, 44 Cal.4th at p. 803 (Wilson).)

The admission of CSAAS evidence did not render defendant’s trial fundamentally 

unfair in violation of due process. (Patino, supra, 26 Cal.App.4th at p. 1747.) Since the 

CSAAS testimony was properly admitted under California law and did not violate 

defendant’s due process rights, trial counsel’s performance cannot be said to be deficient 

for failing to object on those grounds. (Cudjo, supra, 6 Cal.4th at p. 616.)

27

 

25

 We discuss CALCRIM No. 1193 further in part IV. of the Discussion, post.

26

 The trial court gave the jury a similar instruction immediately prior to Urquiza’s 

testimony.

27

 Although defendant does not cite section 352 in his argument concerning CSAAS, he 

does assert that CSAAS testimony, among other things, “involves an undue consumption 

of time, and misleads and confuses the jury.” Contrary to defendant’s contentions, this 

evidence did not necessitate an undue consumption of time or mislead or confuse the 

jury. Urquiza testified for just over two hours. Urquiza made very clear on crossexamination that he was only testifying about CSAAS generally, and was not offering 

any opinion about defendant, the alleged victims, or whether the allegations were true. In 
59

IV. CALCRIM No. 1193

A. Additional Background

Defense counsel did not object to CALCRIM No. 1193, concerning CSAAS, at 

the jury instruction conference or at any other time.

B. Defendant’s Contentions

Defendant asserts on appeal that CALCRIM No. 1193 impermissibly allowed the 

jury to use the CSAAS evidence to evaluate the believability of the victims’ testimony. 

Defendant asserts that, if CSAAS is properly admissible, it is only for the limited purpose 

of determining whether the alleged victim’s reactions were not inconsistent with 

molestation. He asserts that CALCRIM No. 1193 improperly instructs the jury that it 

may use this evidence “to corroborate the claims of abuse.” This, he argues, reduced the 

prosecution’s burden of proof in violation of his federal and state constitutional rights to 

due process and a fair trial.28 Defendant emphasizes that the predecessor to CALCRIM 

No. 1193, CALJIC No. 10.64, did not include language instructing the jury that it could 

consider CSAAS evidence to determine the victims’ credibility. Defendant asserts that, 

like his contention concerning CALCRIM No. 1191, he may assert this argument 

 

any event, defendant forfeited any section 352 objection to the CSAAS evidence by 

failing to raise it in the trial court. (People v. Valdez (2012) 55 Cal.4th 82, 138.) 

Furthermore, given that defendant does not actually even raise section 352 in reference to 

the CSAAS evidence, he apparently does not claim that his trial counsel was 

constitutionally ineffective for failing to make an objection to that evidence on section 

352 grounds.

28

 Defendant also asserts, in cursory fashion, that “ ‘[e]qual protection’ requires that 

persons similarly situated receive equal treatment.” However, he otherwise does not 

develop this argument, cite supporting authority, identify similarly situated groups or 

individuals, suggest how he has been treated differently, or even mention the concept of 

equal protection again in his briefing. Any equal protection claim has been forfeited. 

(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [appellant forfeits any 

point not supported by reasoned argument and citations to authority].)
60

notwithstanding the absence of an objection to the instruction in the trial court because 

the instruction violated his substantial rights. (Pen. Code, § 1259.)29

C. Analysis

As with defendant’s contention concerning CALCRIM No. 1191, defendant did 

not object to this instruction in the trial court. For the same reasons set forth in part II.C. 

of the Discussion, ante, we shall address the merits of defendant’s contentions. (See Pen. 

Code, § 1259; Ramos, supra, 163 Cal.App.4th at p. 1087.)

“In assessing a claim of instructional error or ambiguity, we consider the 

instructions as a whole to determine whether there is a reasonable likelihood the jury was 

misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.)

CALCRIM No. 1193, as given, was explicit in stating that Urquiza’s testimony “is 

not evidence that the defendant committed any of the crimes charged against him.” It 

further delineated the only permissible uses for the testimony, which were to determine 

whether the victims’ conduct was not inconsistent with the conduct of someone who has 

been molested, and to evaluate the believability of their testimony. This provided a clear 

and correct statement of the law. (See McAlpin, supra, 53 Cal.3d at p. 1300.)

Contrary to defendant’s contention, a jury may rely on CSAAS evidence to 

evaluate a child witness’s credibility; CSAAS evidence is admissible to rehabilitate a 

child victim’s credibility when the defendant raises the possibility that the victim’s 

behavior—such as failure to report, delays in reporting, or recanting—is inconsistent with 

actually having been abused. (McAlpin, supra, 53 Cal.3d at p. 1300.) Our high court has 

expressly stated that CSAAS evidence, used appropriately and as intended, may assist the 

trier of fact, “by giving the jurors information they need[] to objectively evaluate” the 

 

29

 Here, defendant also purports to rely on Penal Code section 1469. However, that 

section applies to appeals in misdemeanor and infraction cases, not felony cases such as 

this.
61

credibility of alleged victims. (McAlpin, at p. 1302.) Under the appropriate

circumstances, CSAAS evidence is “properly admitted to rehabilitate [a child victim]’s 

credibility and to explain the pressures that sometimes cause molestation victims to 

falsely recant their claims of abuse.” (Housley, supra, 6 Cal.App.4th at p. 956.) 

CALCRIM No. 1193 instructs the jury on this permissible use of CSAAS evidence.

We disagree with defendant’s contention that CALCRIM No. 1193 erroneously 

instructs the jury it may use the CSAAS evidence to “corroborate” claims of abuse. 

CALCRIM No. 1193 does no such thing. Instead, it makes clear that CSAAS testimony 

“is not evidence that the defendant committed any of the crimes charged against him.”

A reasonable juror would understand CALCRIM No. 1193 to mean that the jury 

could use Urquiza’s testimony to conclude that the victims’ behavior does not mean that 

they lied when they claimed, belatedly and/or inconsistently, that they were abused. The 

jury also would understand that it could not use Urquiza’s testimony to conclude that any 

of the victims were, in fact, molested. “The CSAAS evidence simply neutralizes the 

victim’s apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror 

who believes [an expert]’s testimony will find both that [the victim]’s apparently selfimpeaching behavior does not affect [his or] her believability one way or the other, and 

that the CSAAS evidence does not show [he or] she had been molested. There is no 

conflict in the instruction.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 504.)

When considered in context with the instructions as a whole, we conclude there is 

no reasonable likelihood the jury misapplied CALCRIM No. 1193 to reduce the 

prosecution’s burden of proof. The instruction informs the jury that expert CSAAS 

testimony “is not evidence that the defendant committed any of the crimes charged

against him.” It also informs the jury that CSAAS testimony may only be used to decide 

whether the victims’ behavior was not inconsistent with the behavior of someone who 

has been molested, and to evaluate their credibility. The instruction did not permit the 

jury to find any of the victims credible based solely on the opinion of Urquiza, who
62

expressed no opinion concerning the victims, their credibility, or the specific allegations 

of the case. The jury was also properly instructed on the burden of proof and the 

reasonable doubt standard (CALCRIM No. 220), and the factors it should consider in 

evaluating a witness’s credibility (CALCRIM No. 226). Additionally, the jury was 

instructed with CALCRIM No. 303, as follows: “During the trial, certain evidence was 

admitted for a limited purpose. You may consider that evidence only for that purpose 

and for no other.” We presume the jury understood and applied all of these instructions. 

(Wilson, supra, 44 Cal.4th at p. 803.) Read as a whole, the instructions did not lower the 

prosecution’s burden of proof or allow the jury to use CSAAS testimony for an improper 

purpose. We conclude that defendant has failed to demonstrate that the trial court’s 

CALCRIM No. 1193 instruction was erroneous.

V. Cumulative Error

Defendant asserts that the judgment should be reversed due to cumulative error. 

According to defendant, even if we find the errors to be harmless individually, the 

cumulative effect of these asserted errors discussed in parts I. through IV. of the 

Discussion, ante, deprived him of a fair trial. We reject this contention.

The premise behind the cumulative error doctrine is that, while a number of errors 

may be harmless taken individually, their cumulative effect may require reversal. 

(People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) We have reviewed all of 

defendant’s claims and find no error; thus, there is no cumulative prejudicial error 

warranting reversal.

VI. Consecutive Sentences on Counts One and Two

A. Defendant’s Contentions

Defendant asserts that the trial court failed to exercise its discretion, and abused its 

discretion, in imposing consecutive sentences on counts one and two, assertedly violating 

his due process rights. Defendant argues that the crimes in counts one and two were 

committed at the same time against the same victim. Defendant contends that, because 
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the trial court incorrectly concluded that these crimes were committed on separate 

occasions against different victims, the court abused its discretion in imposing 

consecutive sentences. According to defendant, sentencing in this manner was “an abuse 

of discretion because . . . it showed that [the trial] court, rather than looking at the 

individual offender, had decided that [defendant] was to receive the maximum possible 

sentence without regard to the circumstances of each of his convictions.” Therefore, 

defendant argues that we should remand for resentencing. We agree that remand is 

appropriate.

B. Additional Background

In sentencing defendant, the trial court stated: “First of all, I found the testimony 

of the victims who testified in the trial to be very credible. I know [defendant] contends 

that, basically, he has been framed and falsely accused. I find that to be outrageous under 

the circumstances. I found the testimony of the victims was very credible. [¶] I feel that 

throughout this case that I presided over for many, many months and more than just the 

trial, I have gotten some insight into [defendant]’s character. He is a relentlessly 

manipulative person. He just keeps coming. He doesn’t stop. There’s no end to his 

attempts to manipulate other individuals weaker than himself to serve his own selfish 

interests. [¶] I am going to impose the maximum sentence on this matter. The probation 

report for the most part is accurate; but I find that [its] omission, the failure to reference 

the uncharged victims, P. and Ra., to be a deficiency. [¶] I am amazed that the testing 

that was done on [defendant] somehow reflects that he is at low risk to re-offend. I think 

my intuition suggests otherwise. [¶] [Defendant] has not acknowledged any 

responsibility for any of his acts and multiple victims, multiple young women that have 

been victimized by him. [¶] I am going to follow the recommendation of the Probation 

Department and choose Count 32, the charge of furnishing ecstasy to a minor, Ja., to be 

the principal term and impose the upper term of nine years. [¶] I choose the upper term 

because the evidence demonstrated that there were multiple incidences of that crime 
64

having been committed; and I agree that [defendant] should be incarcerated for the 

maximum term that the law permits, so I impose the upper term of nine years for that 

count. [¶] The remaining crimes and convictions, I intend to impose consecutive 

sentencing as permitted by law. Count 33, a violation of [section] 11380 of the Health 

and Safety Code, I impose the midterm, reduced by two-thirds, and run consecutive 

because that’s a separate offense committed on a separate occasion. [¶] Actually, there 

were multiple occasions when that offense was committed as well, like Count 32. [¶] 

Regarding Count 1, violation of [Penal Code section] 289(i), again, I impose one-third of 

the midterm, which amounts to eight months, and order that to be run consecutive. [¶] 

Likewise, Count 2, violation of [Penal Code section] 288a(b), another eight months, 

which is one-third the midterm. [¶] Counts 3, 4 and 16 through 31 are all violations of 

Penal Code Section 288(c)(1). As recommended by the Probation Department, I order 

the defendant to be sentenced to one-third the midterm as to each count, which in total is 

12 years. [¶] Each of those crimes was committed on a separate occasion against 

several victims, and they warrant consecutive sentencing. [¶] Counts 5 through 15 are 

all violations of [Penal Code section] 288(a). As recommended by the Probation 

Department, I impose an additional 22 years, calculated as one-third the midterm for each 

count. [¶] It was clear to me from the testimony that the crimes for which the defendant 

was found guilty by the jury, based on the charges by the prosecution, represent actually 

only a portion of the number of instances in which he victimized young women. [¶] The 

aggregate prison term is 46 years and four months.” (Italics added.)

C. Analysis

Penal Code section 669 “grants the trial court broad discretion to impose 

consecutive sentences when a person is convicted of two or more crimes.” (People v. 

Shaw (2004) 122 Cal.App.4th 453, 458.) “The sentencing rules specify several criteria to 

guide the trial court’s determination whether to impose consecutive or concurrent terms.” 

(Ibid.) California Rules of Court, rule 4.425, sets forth factors to be considered by the 
65

trial court in deciding whether to impose consecutive or concurrent sentences.30 “Only 

one criterion or factor in aggravation is necessary to support a consecutive sentence.” 

(People v. Davis (1995) 10 Cal.4th 463, 552.) We review the trial court’s determination 

to impose consecutive sentences for abuse of discretion. (People v. Bradford (1976) 17 

Cal.3d 8, 20.) “Discretion is abused when the court exceeds the bounds of reason, all of 

the circumstances being considered.” (Ibid.)

“The court shall state the reasons for its sentence choice on the record at the time 

of sentencing.” (Pen. Code, § 1170, subd. (c).) Thus, generally, when a trial court 

chooses to impose consecutive sentences, it is required to state its reasons for doing so. 

(Rule 4.406(b)(5).) “If the sentencing judge is required to give reasons for a sentence 

choice, the judge must state in simple language the primary factor or factors that support 

the exercise of discretion. The statement need not be in the language of the statute or 

these rules. It must be delivered orally on the record. The court may give a single 

statement explaining the reason or reasons for imposing a particular sentence or the 

exercise of judicial discretion, if the statement identifies the sentencing choices where 

discretion is exercised and there is no impermissible dual use of facts.” (Rule 4.406(a), 

boldface omitted.)

 

30

 “Factors affecting the decision to impose consecutive rather than concurrent 

sentences include: [¶] (a) Facts relating to crimes [¶] Facts relating to the crimes, 

including whether or not: [¶] (1) The crimes and their objectives were predominantly 

independent of each other; [¶] (2) The crimes involved separate acts of violence or 

threats of violence; or [¶] (3) The crimes were committed at different times or separate 

places, rather than being committed so closely in time and place as to indicate a single 

period of aberrant behavior. [¶] (b) Other facts and limitations [¶] Any circumstances 

in aggravation or mitigation may be considered in deciding whether to impose 

consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the 

upper term; [¶] (2) A fact used to otherwise enhance the defendant’s sentence in prison 

or county jail under section 1170(h); and [¶] (3) A fact that is an element of the crime 

may not be used to impose consecutive sentences.” (Cal. Rules of Court, rule 4.425.) 

Further undesignated citations to rules are to the California Rules of Court.
66

Referencing rule 4.425(a)(3), the probation report stated, “The crimes in Counts 1-

33 were committed at different times or separate places, rather than being committed so 

close in time and place as to indicate a single period of aberrant behavior.” The 

probation report further stated that consecutive sentencing was “being recommended 

relative to Rule 4.425(a)(3)” for the same reasons.

Counts one and two both involved J. as the victim. Defendant was found guilty on 

count one of sexual penetration of J., a victim under 16 years of age (Pen. Code, § 289, 

subd. (i)), and, on count two, of oral copulation with J., a victim under 16 years of age 

(Pen. Code, § 288a, subd. (b)(2)). With regard to the allegations in these counts, J.

testified that, one day when she was 14, she took a shower and then, wearing only a 

towel, she went into a bedroom to get dressed. Defendant entered the room, started 

touching J., and tried to get her towel off. J. told defendant to stop, but defendant 

reassured her that he was not going to hurt her. Defendant eventually got J.’s towel off, 

laid her on the bed, touched her breasts, opened her legs, caressed her vagina, and 

performed oral sex on her. Defendant also inserted two fingers in J.’s vagina. Defendant 

attempted to place his penis in J.’s vagina. J. said no. Defendant’s penis pushed against 

J.’s vagina “but it wouldn’t go and then [J.] told [defendant] that [she] wasn’t ready and 

then he stopped.” Defendant then left the room.

In sentencing defendant, the trial court stated, “Each of those crimes was 

committed on a separate occasion against several victims, and they warrant consecutive 

sentencing.” Defendant, assuming that this statement contemplates counts one and two 

as well as other counts, asserts that the trial court was incorrect on this point, because the 

two counts involving J. were committed at the same time against the same victim. 

Additionally, defendant points out that defense counsel raised this issue prior to the trial 

court’s imposition of sentence, encouraging the trial court to impose concurrent terms on 

“the counts that happened at the same time and place, such as the counts in Count 1 and 2 

and the counts involving” J. and L.
67

The People assert that “there is no indication that the trial court believed 

consecutive sentences were statutorily mandated due to counts 1 and 2 being committed 

on separate occasions,” and that “review of the record demonstrates that the trial court 

exercised its discretion in determining that the sentences on counts I and II should run 

consecutively and did not premise this sentence on an assumption they were committed 

on separate occasions. While the trial court did state that ‘Each of those crimes was 

committed on a separate occasion against several victims, and they warrant consecutive 

sentencing,’ it is clear that this finding was in relation to counts III, IV and XVI through 

XXXI as specifically stated by the court.” The People further insist that the trial court 

“made no such finding as to counts I and II.” The People’s position is that the trial court 

“simply stated that it intended to impose consecutive sentencing as to the remaining 

convictions as permitted by law.”

We conclude that it is not clear from the record why the trial court imposed 

consecutive terms on counts one and two. It is possible, as the People assert, that the trial 

court’s statement that “[e]ach of those crimes was committed on a separate occasion 

against several victims, and they warrant consecutive sentencing,” was not meant to 

encompass counts one and two and the reasons for imposing consecutive sentences on 

those counts, but rather that statement only addressed counts three, four, and sixteen 

through thirty-one. The single-sentence paragraph in which the trial court made this 

statement immediately follows a paragraph addressing counts three, four, and sixteen 

through thirty-one.

On the other hand, the paragraph in which the trial court made this statement is not 

so limited by its terms and could address counts one and two as well. Additionally, it is 

worth reiterating here that the sole basis in the probation report for the recommendation 

of imposing consecutive terms on all counts, with reference to rule 4.425(a)(3), is that 

“[t]he crimes in Counts 1-33 were committed at different times or separate places, rather 
68

than being committed so close in time and place as to indicate a single period of aberrant 

behavior.”

If the trial court was indeed relying on the grounds set forth in the probation report 

as supporting consecutive sentences—that these crimes “were committed at different 

times or separate places, rather than being committed so closely in time and place as to 

indicate a single period of aberrant behavior”—it failed to sufficiently articulate its 

findings in this regard as to counts one and two. The crimes charged in those counts were 

committed against the same victim at the same location. However, as the People assert, 

consecutive terms may be imposed for separate acts committed during a single episode of 

sexual assault. (See, e.g., People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [a defendant 

sentenced, in part, to consecutive terms for three separate violations of same child 

molestation statute based on single incident during which the defendant fondled three 

separate portions of victim’s body]; People v. Harrison (1989) 48 Cal.3d 321, 324-326

[consecutive sentences for separate acts of penetration during sexual assault].) Based on 

proper findings, it may be possible for the court to impose consecutive sentences on 

counts one and two. The People thus maintain that the trial court may have imposed 

consecutive sentences because the “crimes involved separate acts of violence or threats of 

violence.” (Rule 4.425(a)(2).) However, if this was the basis for the trial court’s 

decision, it is not clear from the transcript of the sentencing hearing.

Of course, the trial court may have elected to impose consecutive sentences on 

counts one and two for different reasons. These reasons could be other factors set forth 

in rule 4.425 or other reasons reasonably related to the sentencing decision. 

(Rule 4.408(a).) However, such reasons are not set forth in the record.

Accordingly, we shall vacate the sentences imposed on counts one and two and 

remand the matter to the trial court for resentencing on those counts, at which the trial 

court shall impose concurrent or consecutive sentences and if it chooses to impose 

consecutive sentences, articulate the reasons for its choice.
69

VII. Fines and Fees

We note that, during the oral pronouncement of sentence, the trial court did not 

clearly impose a court operations assessment and a criminal conviction assessment on 

each count, although it did state at one point, “I order the mandatory -- any other 

mandatory charges, including penalty assessments and surcharges and lab analysis fees, if 

appropriate.” The abstract of judgment does not indicate that the trial court imposed the 

court operations assessments and criminal convictions assessments. To the extent that 

the trial court at sentencing could be deemed not to have imposed these fees, this was 

error. Both of these fees are statutorily mandated. (Pen. Code, § 1465.8, subd. (a)(1); 

Gov. Code, § 70373, subd. (a)(1); see also People v. Alford (2007) 42 Cal.4th 749, 754 

[court operations assessment is mandatory for all convictions]; People v. Robinson (2012) 

209 Cal.App.4th 401, 405 [court operations and criminal conviction assessments “are a 

required part of [a] defendant’s sentence and may be corrected on appeal”].) Failure to 

impose mandatory fees, fines, penalties, and assessments constitutes an unauthorized 

sentence, which may be corrected by an appellate court even in the absence of an 

objection or argument below. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413-

1415.) At defendant’s resentencing, we direct the trial court to clearly impose a court 

operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) and a criminal conviction 

assessment (Gov. Code, § 70373, subd. (a)(1)) for each conviction.

DISPOSITION

The sentences imposed on counts one and two are vacated and the matter is 

remanded to the trial court for resentencing on those counts, at which the trial court shall 

choose to impose concurrent or consecutive sentences, articulate the reasons for its 

choice if it chooses to impose consecutive sentences, and impose a court operations 

assessment and a criminal conviction assessment on each of the 33 counts as stated 

herein. The trial court is then directed to prepare an amended abstract of judgment and 
70

forward a copy of the amended abstract of judgment to the Department of Corrections 

and Rehabilitation. As so modified, the judgment is affirmed.

 s/MURRAY , Acting P. J.

We concur:

 s/HOCH , J.

 s/RENNER , J.