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Filed 6/6/23 P. v. Thomas CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BUCK MALDONADO THOMAS,

Defendant and Appellant.

C093565

(Super. Ct. No. CR 2019-13)

Defendant Buck Maldonado Thomas was a private softball coach who offered 

training and liaison services to high school students to help them secure college softball 

scholarships. In 2018, a jury found defendant guilty of multiple crimes arising out of his 

sexual abuse of two high school girls whose families had hired him for his coaching 

services. The trial court sentenced defendant to 37 years four months to life in prison.

On appeal, defendant contends: (1) the trial court incorrectly stated the law in 

response to a jury question and also failed to provide a unanimity instruction; (2) the trial 

court erroneously admitted propensity evidence; (3) the admission of child sexual abuse 
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accommodation syndrome testimony deprived defendant of a fair trial; (4) the denial of 

defendant’s motion for new trial was an abuse of discretion; and (5) defendant is entitled 

to remand for resentencing in view of Senate Bill No. 567 (2021-2022 Reg. Sess.) 

(Senate Bill 567) (Stats. 2021, ch. 731, § 1.3) and Assembly Bill No. 518 (2021-2022

Reg. Sess.) (Assembly Bill 518) (Stats. 2021, ch. 441, § 1). The People concede, and we 

agree, that remand for resentencing is required. However, we conclude that defendant’s

remaining arguments lack merit, and thus we otherwise affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Statement of Facts

A. H.L. (counts 1-6)

H.L. played softball her “whole life.” She had hoped to get a scholarship and play 

softball in college.

In 2018, when H.L. was 15 years old, H.L.’s softball coach suggested H.L. meet 

with defendant, who worked on batting with the coach’s son at the time. H.L. had heard 

that defendant formerly coached Major League Baseball players. H.L.’s mother also was 

aware that defendant came highly recommended as a hitting coach. In July 2018, H.L.

and her father met with defendant at a park during a softball tournament along with 

another teammate, M.R. Defendant told H.L. and her father that he would like to train 

with her. They discussed the possibility of H.L. coming to defendant’s facility or 

defendant coming to H.L.’s home. At some point, H.L. mentioned she would like to go 

to a university in San Diego, and defendant said he had some connections that could help 

her gain admittance. In general, defendant promoted his ability to get H.L. a scholarship 

and assist her with the recruiting process. 

After a family discussion, H.L.’s family agreed to hire defendant as a batting

trainer and liaison for H.L. They paid defendant $5,000 and flew him to Sacramento to 

stay in a spare room in their home in West Sacramento from July 30, to August 4, 2018. 

Before his arrival, defendant began sending messages to H.L. over Instagram. One of 
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defendant’s messages said: “Baby girl, from this day forward, you no longer need to 

worry. [Undisclosed phone number] is my cell, 24/7 you need me . . . [I’m] here. See 

you soon. Already talking to dad about me coming to stay with you a few days. You 

okay with that?” H.L. did not respond.

When defendant arrived at H.L.’s home, he discussed logistics for training and 

payment with H.L.’s family. Thereafter, defendant told H.L. that they should begin 

training in her room, and that her parents should not be there because she needed to be 

more independent. Defendant told H.L. not to wear her bra or underwear. H.L. and 

defendant went into her room and defendant closed the door. Once inside, they began 

stretching on a mat with H.L. lying on her back. Defendant sat by her legs and began 

rubbing the inner lips of her vagina with his finger under her clothes. As he rubbed her 

vagina, defendant said something like, “[Y]ou like that, huh.” H.L. froze and tried not to 

cry. When she tried to push him with her legs, defendant, who was much larger than 

H.L., pulled her shorts aside and began licking her vagina. As he did so, he held H.L.’s 

legs down, and she was unable to get up. Defendant eventually stopped and told H.L.

they were going to the mall, and that she should “wear something sexy that shows your 

butt.” Defendant then lifted H.L.’s shirt up, exposing her breasts, and she pulled it back 

down. Defendant told her to stop, that they were going to get to know each other well, 

and she needed to trust him. H.L. shook her head and pushed her shirt back down again. 

Defendant stopped and left the room. H.L. eventually left the room and her mother saw 

that H.L. was “kind of crying.” She asked H.L. what was wrong, but H.L. said nothing 

was wrong because she was embarrassed.

H.L. and defendant went to the mall, where he bought her shoes and candy and 

told H.L. that people were checking her out and looking at her “butt.” When they 

returned home, H.L.’s mother continued to ask her what was wrong. H.L. told her that 

defendant touched her, but that it might have been an accident. She said it might have 

been an accident because she was scared and embarrassed. H.L.’s mother said she was 
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calling the police, but H.L. responded, “Please don’t. I think it was just an accident,” and 

began crying. At the time, H.L.’s mother thought that because defendant came highly 

recommended and had a family, perhaps it truly was an accident. She later believed she 

should have called the police but was “naive and dumb” at the time. 

H.L.’s mother told H.L.’s father what H.L. told her, and he confronted defendant. 

Defendant apologized and said that they would not do any more stretching exercises. He 

told H.L. that he would never want her to feel uncomfortable, and that he would never do 

anything like that. Apart from visiting a baseball player in another town for two days, 

defendant remained in H.L.’s home for the week and continued to work with her. On one 

of those days, defendant also trained M.R. at H.L.’s house. 

One night during defendant’s visit, H.L. was asleep in her bed with her dog. 

Defendant opened her bedroom door, which woke up H.L. Defendant took a step inside, 

but then H.L.’s dog barked, so defendant closed the door. The following night, H.L. slept 

with her mother in her bedroom with the door closed. In the middle of the night, while 

H.L. was asleep, defendant came into her bedroom. H.L.’s mother awoke and asked what 

he was doing. Defendant “tried to play it off” and “just grabbed” one of H.L.’s 

backpacks and said he needed a backpack for his things. Then he left the room. 

On defendant’s final night in the house, H.L.’s mother again slept with H.L. in her 

room with the door shut. During the night, defendant opened the bedroom door and came 

into the room, up to the bed. H.L.’s mother sat up in bed, startled. Defendant said he 

was just wondering what time they were leaving in the morning. He then left the room. 

After defendant flew home, H.L., who was normally very outgoing and social, 

became quiet, withdrawn, and depressed. She slowly began telling her mother details 

about defendant’s actions. By the end of August 2018, H.L. told her mother that 

defendant “[l]icked his finger and touched her” and that he performed oral sex on her. 

H.L.’s mother said that they would call the police, but H.L. cried and said she was 

embarrassed and worried. H.L. was “upset, crying, broken.” H.L.’s mother had to
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comfort H.L. to mentally prepare her to file a police report, a process that was “a little bit 

slow.” On November 30, 2018, H.L.’s mother spoke to a detective about defendant’s 

actions. H.L.’s mother also gave the detective M.R.’s name, because she had been at 

their home with defendant.

B. M.R. (count 7—charged offense) 

M.R. began playing softball when she was eight years old. It had been M.R.’s 

dream to get a college softball scholarship. On August 1, 2018, when M.R. was 16 years 

old, she met with defendant at H.L.’s home to work on hitting. Once there, defendant 

tried to sell M.R. and her father on signing up for his program. Defendant said M.R.’s 

family should trust him because he had connections to many schools, and he had helped 

many people get accepted to college. He then went outside with M.R., her father, and 

H.L. to work on hitting. Defendant hit with H.L., sent her inside, and began hitting with 

M.R. After a few minutes, defendant asked her father to leave so that M.R. could feel 

comfortable with him. M.R.’s father went back inside.

Defendant began showing M.R. how to swing. He got behind M.R., and started 

“feeling around [her] body,” telling her to be comfortable with it, and that he was trying 

to help her. He grabbed her hips, and had her sit backwards on him, which made M.R.

very uncomfortable, but she “did it anyways.” As she leaned backwards, defendant put 

his hands on her breasts under her shirt but over her bra. He told her to be comfortable, 

that he was just trying to loosen her up. M.R.’s father returned, and defendant stopped 

touching her. M.R. was unsure whether defendant’s behavior had been inappropriate or 

if he was genuinely trying to help her. At that time, M.R. did not say anything to her 

father about the touching.

M.R.’s parents hired defendant to coach M.R. and paid defendant $5,000 for her to 

go stay at defendant’s house in Arizona.
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C. Defendant’s uncharged sexual offenses 

1. M.R. 

In September 2018, M.R. went to Arizona to stay at defendant’s home for three 

days. The first evening in defendant’s home, defendant asked M.R. to lay on the floor so 

he could stretch her to prepare her for the next day. He put his hand inside her pants, 

touched her inner thighs, and started touching around her “genital area.” He touched both 

“inside” and “outside” her vagina. To M.R., it was a “very . . . scary thing.” M.R.

jumped a little bit and told him she did not want to be stretched. Defendant stopped, 

reassured her that he was trying to help her, and left. M.R. did not know what to do and 

did not know whether to call her parents.

After dinner, defendant returned to M.R.’s room. He held his “genital area” and 

told M.R. that she was “getting his . . . friend excited,” and that “not many people can do 

that for him.” He then grabbed her hand and made her feel his “genital area” and told her 

that he would be back for her later. Defendant later asked M.R. to drive to the gas station 

with him and told her not to bring her phone. On the way home, he said he was going to 

finish what he started earlier. He put his hand down her pants again, said he could “make 

[her] feel so good,” and started rubbing her inner and outer vagina under her clothes. 

When they returned home, M.R. went to bed. In the middle of the night, defendant went 

into M.R.’s room, caressed her leg, and told her he would be training her in the morning.

The following day, they trained together for 14 hours, to the point of exhaustion

for M.R. That night, defendant returned to M.R.’s room, closed the door, and had her 

touch him again. He told her to get on the floor and took off both of their clothes. He 

laid her on her stomach and pushed her down so she could not breathe and was unable to 

get up. He took his penis out of his pants, put it in her vagina, and had sex with her. It 

was very painful. Three times, defendant heard a noise in the house, jumped up, and hid 

behind the door. The sex lasted for about 20 to 25 minutes. The following night, after a

day of training, defendant “proceeded to do the same thing he did the night before.” 
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Defendant forced M.R.’s hand on his penis, pushed her to the ground, and had sex with 

her in the same way as the night prior. The next day, M.R. flew home and did not tell her 

parents what happened because she was scared, embarrassed, and defendant told her that 

no one would believe her and he could ruin her softball career. 

In November 2018, M.R. went to Arizona again to train with defendant. The first 

night, defendant entered M.R.’s room, locked the deadbolt, shoved a pillow on her face to 

keep her quiet, and had sex with her on the floor in the same manner as before. The next 

day, defendant went into the bedroom where M.R. was getting ready for practice. He 

told her she was pretty and tried to kiss her on the mouth. Then he turned her around, 

took off her pants, pushed her onto the bed, and had sex with her on the bed for about 

five minutes. After he left, M.R.’s privates were bleeding, and she was in a lot of pain. 

She then went to practice with defendant, where he had her sit back on his lap for hours 

and do a swaying movement to hit the ball. 

Late that night, defendant returned to her room, placed M.R. on the floor, took off 

her pants, and had sex with her on the floor. Defendant did this each night M.R. stayed at 

his house, except for the third night, where he came in her room twice to have sex. She 

was afraid to scream because she did not trust anyone in the house. 

After M.R. returned home, she did not tell her parents what happened because she 

was scared, embarrassed, and mortified about the situation. She felt that defendant’s 

actions had threatened her softball career, something she had achieved by working so 

hard. She “didn’t want to risk everything in [her] life” by reporting defendant. She also 

thought people would not believe her because defendant was “such an upstanding coach.” 

Eventually, a detective called M.R.’s mother because H.L. had come forward. M.R. told 

her mother that defendant had touched her and had sex with her “in every way possible.” 

2. S.W.

S.W. trained with defendant once a month at defendant’s house in Arizona. In 

September 2017, when S.W. was 18 years old, defendant told her they needed to go into 
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his house during a training session. Once inside, defendant said he needed to check to 

see if she was “[Division] I material.” He began touching her breasts over her bra. Then 

he unzipped her pants and started touching her under her underwear, rubbing her vagina. 

He did so for about five minutes. S.W. was shocked, scared, and felt horrible.

3. K.S.

In 2016, defendant trained K.S. for softball for approximately five months when 

K.S. was 17 years old. After hard workouts, defendant would tell her that they needed to 

rub out her muscles. Then, he would rub up her legs and into her vagina, usually rubbing 

it with his thumb. He would touch the inside and outside of her vagina. He would also 

say inappropriate things, such as telling her that her vagina was cute. Defendant also 

massaged her breasts both over and under her shirt and sports bra. 

Once, defendant took her upstairs to his bedroom and told her to take off all her 

clothes. After she did so, defendant gave her a full body massage, rubbing her vagina 

and breasts with his hands. Another time, defendant kissed her neck and gave her a 

hickey. K.S. thought defendant’s behavior was “really weird” but had never had a trainer 

before, and defendant told her that the massages were a “normal thing.” She trusted 

defendant to not take advantage of her, because he had a father-like role in her life. 

4. D.R.

In 2007 or 2008, when D.R. was 16 years old, she received batting lessons from 

defendant. Defendant began sending D.R. text messages, asking her whether she was a 

virgin, and using graphic phrases and terms to describe her sex life and the sex lives of 

other boys and girls that he worked with. Defendant would have D.R. lay on her back to 

stretch, with her leg over his shoulder. When he did so, he told D.R. to wear loose fitting 

shorts. Then he would use his hands to rub the inside of her thigh and against her groin. 

Some days, defendant’s fingers would rub around her vagina and go inside her vagina, 

subtly and quickly. Defendant would also rub under the bottom of her shorts to rub 

where the thigh “meets the butt area.” He also would massage her breasts under her bra. 
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D.R. did not say anything about defendant’s touching because defendant was training her 

brother and she was worried it would ruin her brother’s career, and because defendant 

was dating her sister at the time.

D. Dr. Blake Carmichael 

Dr. Carmichael, a licensed psychologist, testified for the prosecution as an expert 

on child sexual abuse accommodation syndrome (CSAAS), child psychology, and the 

psychology of child sexual abuse victims. He explained that CSAAS is an educational

tool to help dispel misconceptions people have regarding child sexual abuse. Dr. 

Carmichael identified and described the five components of CSAAS: (1) secrecy;

(2) helplessness; (3) entrapment and accommodation; (4) delayed, unconvincing, and 

conflicted disclosure; and (5) retraction or recanting. Specifically, he explained that 

children may hesitate to report because they are afraid of being abandoned or hurt, feel 

responsible for what occurred, or feel judged. He also explained that a child might feel 

helpless or otherwise feel entrapped in the relationship if the perpetrator is an authority 

figure. Dr. Carmichael testified that a victim of childhood sexual abuse might have a flat 

affect, or show no outward displays of fear, shame, or distress. And, he described why 

children may give inconsistent accounts and might retract their claims due to family 

pressure or a close relationship with the abuser.

Dr. Carmichael did not know any of the specific details of the alleged sex acts 

committed by defendant. He stated that he was not there to provide an opinion about 

whether anyone in the case, or otherwise, was sexually abused. 

E. Defendant 

Defendant testified on his own behalf. During the summer of 2018, defendant ran 

a business called “The Hitting Guy,” in which he offered hitting instruction and a college 

placement program. He recalled meeting H.L. and M.R. in July 2018, when defendant 

was 41 years old. On July 30, 2008, defendant flew to Sacramento to stay in H.L.’s home 
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and train her. Before defendant’s trip to Sacramento, he communicated with H.L. over 

Instagram to “build rapport and give her some confidence.” 

During his time at H.L.’s home, defendant went into H.L.’s bedroom to stretch 

H.L. He denied asking her to take off her bra and underwear prior to stretching and

denied that the door was closed. According to defendant, when he stretched H.L., he 

noticed that her back was in pain. He stopped stretching her, told H.L.’s parents about 

the suspected injury, and contacted a doctor. Defendant then went outside to take a 

phone call. H.L.’s father came outside thereafter and told defendant that H.L. felt 

uncomfortable while they had stretched. Defendant was “absolutely shocked,” thought 

that perhaps her back had hurt, and apologized to the family. He testified that he did not 

touch or lick H.L.’s vagina and did not lift up her shirt. He also denied walking into 

H.L.’s bedroom during the first, second, and last night he stayed over. 

Defendant acknowledged meeting with M.R. at H.L.’s home but said he did not 

make any sexual comments to her or grab her breasts that day. He also testified that M.R.

stayed with him twice in Arizona, but he never touched M.R.’s vagina, never had sex or 

oral sex with M.R., and never stretched with her on either trip. Defendant further denied 

touching D.R., K.S., or S.W. inappropriately. 

F. Dr. Randall Kolin 

Dr. Kolin, a psychologist, testified as a defense expert on child sexual abuse as it

relates to the psychology of children, CSAAS, and suggestive interviewing. He 

explained that CSAAS is a theory proposed by a clinician in 1983 which Dr. Kolin 

viewed as an anecdotal description of a pattern of behaviors rather than the result of a 

scientific, peer-reviewed study. Dr. Kolin said that CSAAS is not supported in the 

scientific community, nor by the American Psychological Association or the American 

Psychiatric Association. 
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Jury Verdict and Sentencing

The jury found defendant guilty of five counts against H.L.: first degree burglary 

by means of unlawfully entering an inhabited child’s bedroom with the intent to violate

section 289 (Pen. Code, § 459—counts 1 & 6);

1

lewd and lascivious acts upon a child 14

or 15 years of age (§ 288, subd. (c)(1)—count 2); forcible sexual penetration of a minor 

(§ 289, subd. (a)(1)(C)—count 3); and forcible oral copulation of a minor. (Former 

§ 288a, subd. (c)(2)(C)—count 4.) For count 3, the jury found true that defendant

committed the crime during the commission of first degree burglary. (§ 667.61, subd. 

(a).) The jury further found defendant guilty of sexual battery against M.R. (§ 243.4, 

subd. (c)—count 7.)

On December 16, 2020, the trial court sentenced defendant to an aggregate term of 

37 years 4 months to life, comprised of 25 years to life on count 3, plus the upper term of 

10 years consecutive on count 4, 16 months consecutive on count 6 (one-third the middle 

term), and one year consecutive on count 7 (one-third the middle term). The trial court 

imposed a concurrent upper term of six years on count 1, which it stayed per section 654, 

and a concurrent term of three years on count 2. The trial court recalled the sentence, but 

then reimposed the original sentence on February 2, 2021.

DISCUSSION

I

Jury Question and Lack of Unanimity Instruction (Counts 2 & 3)

Defendant first contends the trial court erred by responding to a jury question with 

an erroneous statement of law and also failed to give a unanimity instruction. Defendant 

acknowledges that defense counsel did not object to the trial court’s response to the jury 

question, but contends that if the argument is forfeited, his counsel was ineffective for 

1 Undesignated statutory references are to the Penal Code. 
12

failing to object. We conclude that while defense counsel did forfeit his challenge to the 

jury response, counsel was not ineffective because the trial court’s response was not 

erroneous. We further conclude that the trial court did not err by declining to issue a 

unanimity instruction.

A. Additional procedural background 

The jury’s question arose from apparent confusion over count 2 (lewd or 

lascivious acts against a 14 or 15 year old) and count 3 (sexual penetration by force). 

For count 2, the jury was instructed that to find defendant guilty of lewd and 

lascivious acts, it had to find that defendant “willfully touched any part of a child’s body 

either on the bare skin or through the clothing” and did so “with the intent of arousing, 

appealing to, or gratifying the lust, passions, or sexual desires of himself or the child.” 

During closing argument, the prosecutor said that count 2 applied to H.L. and explained

that count 2 “is when he is pulling up the shirt in her bedroom exposing her breasts, 

telling her they’ve got to trust each other, stuff like that.” 

For count 3, the jury was instructed that to find defendant guilty of sexual 

penetration by force, it had to find that defendant “committed an act of sexual penetration 

with another person” and that “the penetration was accomplished by using a foreign 

object.” The instruction further stated that sexual penetration “refers to penetration of the 

labia majora, not the vagina.” The prosecutor explained during closing argument that 

count 3 was sexual penetration of H.L., and said with respect to count 3, “H.L. did tell 

you that he held her down and stuck his fingers in her vagina when they were in her 

room.”

During deliberations, the jury sent the following note: “Can Count 2 & Count 3 

apply to the same incident? [¶] [S]tated differently [¶] if we were to be inclined toward 

guilt on Count 3, would Count 2 be automatically included?” The trial court invited 

thoughts from both sides regarding a response. The prosecutor suggested referring the 

jury to instruction CALCRIM No. 3515, which says that each of the counts charged is a 
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separate crime that must be considered separately. Defense counsel agreed that such a 

response would be appropriate.

The trial court then read aloud the draft response it had already prepared. The 

draft stated: “Please see Jury Instruction 3515. Each count is a separate crime and you 

must consider each count separately. [¶] [Count] 2 is not automatically included in

[count] 3. [¶] [Count] 2 and [Count] 3 can apply to the same incident. The People have 

the burden of proving each element of each count beyond a reasonable doubt.” Both 

attorneys agreed with the trial court’s response, and it was submitted to the jury. 

After the noon recess, the prosecutor expressed concerns about the answer the trial 

court had given to the jury’s question. Specifically, she took issue with the statement that 

both counts “can apply to the same incident.” When she initially agreed to the response, 

she interpreted “incident” to generally mean “the incident in the bedroom,” but upon 

further reflection, she believed the jury could wrongly interpret “incident” to mean 

conduct. Thus, the prosecutor believed their response erroneously told the jury it could 

convict on count 3 based on the conduct of count 2. She explained, “I elected that Count 

2 referred to only of the lifting of the shirt and Count 3 was only for the sexual

penetration, and I think we need to make that clear for them . . . you know, in another 

case, sure, the conduct of [section] 288[, subdivision] (c) of course can also apply to a 

[section] 289, but that’s not what I alleged in this case so I don’t want them thinking 

lifting of a shirt is qualifying for a [section] 289 or vice versa.”

Defense counsel said it did not understand that the People elected that lifting the 

shirt to apply to count 2, and that if the People thought that more than one act could 

constitute a section 288, subdivision (a) violation, then the jury should have been 

instructed on unanimity. However, defense counsel maintained that the response was

“appropriate” and “answered their question,” though she repeated that a unanimity 

instruction was needed if the People were “assert[ing] an election.” 
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The trial court rejoined that it also did not recall the People specifically identifying 

the lifting of the shirt as the basis for count 2, though the court acknowledged it could 

have missed the election. The prosecutor confirmed that she made that election at 

closing, and reiterated: “I’m very concerned that the jury thinks that [section] 289, the 

conduct of a [section] 288[, subdivision] (c) qualifies as a [section] 289. I think we need 

to tell them they’re separate acts.” Defense counsel responded, “I feel like that’s what 

Your Honor told them in the answer.” The trial court concluded that it was not inclined

to amend its response to the jury. The prosecutor then asked if she could submit new 

verdict forms for counts 2 and 3, designating count 2 as lifting the shirt. Defense counsel 

objected to the proposal, and the trial court declined to issue new verdict forms at such a

late stage.

B. Response to jury question 

1. Forfeiture 

As an initial matter, we find that defendant forfeited his claim that the trial court’s 

response to the jury question was erroneous. “When the trial court responds to a question 

from a deliberating jury with a generally correct and pertinent statement of the law, a 

party who believes the court’s response should be modified or clarified must make a 

contemporaneous request to that effect; failure to object to the trial court’s wording or to 

request clarification results in forfeiture of the claim on appeal. [Citations.]” (People v. 

Dykes (2009) 46 Cal.4th 731, 802.) Here, as we will explain, the trial court gave a 

generally correct and pertinent statement of law in response to the jury’s question. 

Defense counsel not only failed to object to the trial court’s response, but insisted, over 

the prosecution’s objection, that it was accurate. Thus, this argument was forfeited. 

However, we still may assess the merits of defendant’s claim through the lens of 

ineffective assistance of counsel. To prevail on a claim of ineffective assistance of 

counsel, defendant must prove (1) that trial counsel’s representation was deficient 

because it fell below an objective standard of reasonableness under prevailing 
15

professional norms, and (2) that the deficiency resulted in prejudice to defendant. 

(Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) As we 

conclude here that the trial court’s response to the question was not erroneous, we find 

counsel was not ineffective for failing to object. (People v. Price (1991) 1 Cal.4th 324, 

387 [defense counsel is not required to make frivolous objections].)

2. Applicable legal principles 

The trial court is required to “ ‘instruct[] the jury on all the general principles of 

law raised by the evidence which are necessary for the jury’s proper understanding of the 

case.’ ” (People v. Ramirez (2021) 10 Cal.5th 983, 1035.) Additionally, the trial court 

must provide deliberating jurors with information when those jurors desire to be informed 

on any point of law arising in the case. (§ 1138.) Thus, the trial court is “under a general 

obligation to ‘clear up any instructional confusion expressed by the jury,’ but ‘[w]here 

. . . the original instructions are themselves full and complete, the court has discretion . . . 

to determine what additional explanations are sufficient to satisfy the jury’s request for 

information.’ ” (People v. Dykes, supra, 46 Cal.4th at p. 802.) To assess whether the 

trial court correctly instructed the jury, “ ‘the question is whether there is a “reasonable 

likelihood” that the jury understood the charge as the defendant asserts. [Citations.] “In 

addressing this question, we consider the specific language under challenge and, if 

necessary, the charge in its entirety. [Citation.] Finally, we determine whether the 

instruction, so understood, states the applicable law correctly.” ’ ” (People v. Doane 

(2021) 66 Cal.App.5th 965, 980-981.)

3. Analysis 

Here, the jury asked if counts 2 and 3 “appl[ied] to the same incident,” or stated 

differently, if they were “inclined toward guilt on Count 3, would Count 2 be 

automatically included?” The trial court answered the question directly, and correctly, by 

stating that “[count] 2 is not automatically included in [count] 3.” It further made clear 

that each count was a separate crime to be considered separately, by stating this plainly 
16

and by referring the jury to CALCRIM No. 3515, which provides that “[e]ach of the 

counts charged in this case is a separate crime. You must consider each count separately 

and return a separate verdict for each one except for the lesser-included offenses . . .

addressed in instruction 3517.” CALCRIM No. 3517, in turn, defined lesser included 

offenses for the jury, and specifically listed the lesser included offenses in the case. The 

list did not include count 2 as a lesser included offense for count 3, again reiterating that 

count 2 was not automatically included in count 3. 

Based on these instructions, the jury was reasonably likely to understand that a 

finding of guilt for count 3 did not mandate finding defendant guilty on count 2, or vice 

versa. The trial court’s statement that counts 2 and 3 “can apply to the same incident,” 

though perhaps inartfully crafted, does not negate the court’s clear instructions that 

counts 2 and 3 were separate crimes that must be separately proven, and that count 2 is 

not automatically included in count 3. Moreover, the statement can be reconciled with 

the rest of the trial court’s response, just as the prosecutor first understood it. Within the 

context of the entire response, and the prosecutor’s explanation of the crimes during 

closing argument, the jury could only interpret “incident” to mean defendant’s actions in 

H.L.’s bedroom that afternoon, rather than any single isolated act by defendant.

Accordingly, the trial court’s response was not erroneous and defense counsel was 

not ineffective for failing to object. 

C. Unanimity instruction 

Defendant further contends that the response to the jury question triggered the 

need for a unanimity instruction, and that the lack of such instruction deprived him of a 

fair trial.

2

 Again, we disagree.

2 Defense counsel briefly requested a unanimity instruction in light of the 

prosecutor’s concerns following the response to the jury question, but did not press the 

issue. Regardless, we may consider the issue on appeal, because the trial court has a sua 
17

“Based on the principle that a defendant in a criminal jury trial has the right to a 

unanimous verdict, ‘cases have long held that when the evidence suggests more than one 

discrete crime, either the prosecution must elect among the crimes or the court must 

require the jury to agree on the same criminal act.’ [Citation.] ‘This requirement of 

unanimity as to the criminal act “is intended to eliminate the danger that the defendant 

will be convicted even though there is no single offense which all the jurors agree the 

defendant committed.” ’ [Citation.]” (People v. Brugman (2021) 62 Cal.App.5th 608, 

627.) “A unanimity requirement generally applies to acts that could have been charged 

as separate offenses, and a unanimity instruction must be given ‘ “only if the jurors could 

otherwise disagree which act a defendant committed and yet convict him of the crime 

charged.” ’ ” (People v. Seaton (2001) 26 Cal.4th 598, 671.)

However, no unanimity concerns are implicated here. A unanimity instruction is

only needed “ ‘when conviction on a single count could be based on two or more discrete 

criminal events.’ ” (People v. Russo, supra, 25 Cal.4th at p. 1135, italics added.) Here, 

the jury was presented with two separate acts—(1) lifting the shirt and (2) vaginal 

penetration—and two separate counts (counts 2 & 3). Thus, the trial court had no duty to 

instruct on unanimity because the acts at issue were charged as separate counts. (See 

People v. Beardslee (1991) 53 Cal.3d 68, 92 [“A requirement of jury unanimity typically 

applies to acts that could have been charged as separate offenses”].)

Further, even if the trial court’s response to the jury had created a potential 

unanimity issue, a unanimity instruction is unnecessary where the prosecutor elects the 

specific conduct that forms the basis for each count. “When an accusatory pleading 

charges the defendant with a single criminal act, and the evidence presented at trial tends 

to show more than one such unlawful act, either the prosecution must elect the specific 

sponte duty to issue a unanimity instruction where one is required. (People v. Russo 

(2001) 25 Cal.4th 1124, 1132.)
18

act relied upon to prove the charge to the jury, or the court must instruct the jury that it 

must unanimously agree that the defendant committed the same specific criminal act. 

[Citation.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) “ ‘The prosecution 

can make an election by “tying each specific count to specific criminal acts elicited from 

the victims’ testimony”—typically in opening statement and/or closing argument. 

[Citations.] . . . [Citation.] [¶] Under these principles, there is an implicit presumption 

that the jury will rely on the prosecution’s election and, indeed, is bound by it.’ 

[Citation.]” (People v. Brugman, supra, 62 Cal.App.5th at p. 627.) 

Here, the prosecutor expressly stated in closing that count 2 was “when he is 

pulling up the shirt in her bedroom, exposing her breasts,” whereas count 3 was when 

defendant “held her down and stuck his fingers in her vagina.” The fact that the trial 

court and defense counsel did not (apparently) hear the prosecutor make the election does 

not render the election inadequate where, as here, the prosecutor’s closing statement 

clearly assigned specific conduct to each count. Moreover, the trial court’s response to 

the jury reiterated the prosecutor’s election as to acts separately assigned for each 

charged offense. 

Based on the foregoing, the trial court did not err by declining to issue a unanimity 

instruction. 

II

Uncharged Acts

Defendant next contends that the trial court abused its discretion by admitting 

evidence of uncharged acts alleged by four women under Evidence Code sections 1108 

and 352. We find no abuse of discretion.

A. Additional procedural background 

Before trial, the People moved under Evidence Code section 1108 to admit 

evidence of 10 prior sex offenses allegedly committed by defendant. Defendant opposed 

the motion, arguing the evidence would be time consuming and the danger of undue 
19

prejudice substantially outweighed its probative value. At the hearing, the trial court 

reviewed the various incidents, weighed the competing factors, and ultimately granted the 

prosecutor’s motion as to acts alleged by five witnesses, thereby excluding the remaining 

five.

3

Several weeks later, the People sought to permit T.D. and T.S. to testify remotely 

through videoconferencing, and further stated that V.W. did not want to be involved with 

the case. The trial court denied the request. Thus, V.W., T.D., and T.S. were rendered 

unable (or were simply unwilling) to testify. Consequently, the People sought to 

substitute in K.S. as a witness attesting to uncharged acts. The trial court noted that 

K.S.’s allegations were similar to, and occurred within the same time frame as, those 

made by V.W. Thus, the trial court admitted K.S.’s testimony because it was probative, 

not substantially outweighed by undue prejudice, and would not unduly consume time,

given that she would effectively replace another witness’s testimony.

The People also filed a motion in limine under Evidence Code sections 1108 and 

1101, subdivision (b) to admit evidence of several uncharged rapes that defendant had 

committed against M.R. At the hearing, defense counsel incorporated her previous 

objections made under Evidence Code section 1108, but alternatively argued that if 

M.R.’s testimony was admitted, the word “rape” should be excluded. The trial court 

found the probative value of M.R.’s rapes outweighed possible prejudice, and the 

evidence was also relevant for purposes of motive and intent under Evidence Code 

section 1101. It therefore admitted the testimony under Evidence Code sections 1108, 

1101, and 352, but ruled that the word “rape” could not be used at trial. Ultimately, four 

individuals testified regarding uncharged acts: M.R., S.W., K.S., and D.R.

3 The trial court authorized the prosecutor to offer the testimony of D.R., T.S., T.D., 

V.W., and S.W. into evidence.
20

B. Applicable legal principles 

Where a defendant is accused of a sexual offense, Evidence Code section 1108 

permits evidence of other sexual offenses so long as it is not inadmissible under Evidence 

Code section 352. (Evid. Code, § 1108; People v. Cordova (2015) 62 Cal.4th 104, 132.) 

As such, the probative value of the evidence cannot be “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.” 

(Evid. Code, § 352.)

In considering prejudice, “trial judges must consider such factors as 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.” (People v. Falsetta (1999) 21 Cal.4th 903, 917.) We review a 

challenge to the admission of evidence under Evidence Code section 1108 for abuse of 

discretion. (People v. Cordova, supra, 62 Cal.4th at p. 132.) A trial court abuses its 

discretion when its ruling “falls outside the bounds of reason.” (People v. DeSantis 

(1992) 2 Cal.4th 1198, 1226.)

C. Analysis 

Here, the trial court was well within its discretion to admit evidence of the 

uncharged acts. The evidence was highly probative, as the witnesses’ testimony mirrored 

many elements of the charged offenses. “[I]f the prior [sexual] offenses are very similar 

in nature to the charged offenses, the prior offenses have greater probative value in 

proving propensity to commit the charged offenses.” (People v. Branch (2001) 91

Cal.App.4th 274, 285.) In each instance, defendant used his position as a hitting coach to 
21

sexually assault the teenage girls he was training. The manner of touching was also 

similar, with M.R., D.R., and K.S. testifying that defendant touched them under the 

pretext of stretching or massaging their muscles while training. S.W. similarly testified 

that defendant touched her inappropriately when purportedly examining her body’s 

athletic ability during a training session. 

Nonetheless, defendant argues that with respect to similarities between the 

charged and uncharged acts, M.R.’s testimony that defendant repeatedly raped her was 

dissimilar to, and far worse than, the charged acts. He therefore contends that the 

prejudicial effect of her “inflammatory” testimony outweighed any potential probative 

value.4 In order for a “substantial danger of undue prejudice” to “substantially 

outweigh[]” the probative value of the evidence (Evid. Code, § 352), the evidence must

“ ‘uniquely tend[] to evoke an emotional bias against defendant as an individual and 

[have] very little effect on the issues. In applying [Evidence Code] section 352, 

“prejudicial” is not synonymous with “damaging.” ’ ” (People v. Bolin (1998) 18 Cal.4th

297, 320.) 

Here, M.R.’s testimony mirrored H.L.’s testimony in many ways. Both sexual 

assaults occurred overnight in the bedrooms where the girls slept, during extended 

periods of coaching. Defendant touched both of their vaginas while stretching them. He 

also penetrated both H.L.’s and M.R.’s vaginas, with his finger (both H.L. and M.R.) and

with his penis (M.R.). We do not dispute that defendant’s rapes of M.R. were objectively 

more egregious than the charged crimes, in that they occurred numerous times and caused 

M.R. physical pain and injury. However, we still cannot say the prejudicial impact of 

4 Defense counsel adequately preserved this issue for appeal. She specifically 

objected to admitting M.R.’s testimony of the uncharged rapes and, in doing so, expressly 

referenced her brief arguing that evidence of uncharged acts is inadmissible under 

Evidence Code sections 352 and 1108. Thus, we need not consider defendant’s 

alternative ineffective assistance of counsel argument.
22

M.R.’s testimony substantially outweighed its probative effect. Indeed, M.R.’s testimony 

was unlikely to evoke meaningful emotional bias against defendant given the similarities 

between the charged and uncharged crimes. We disagree with defendant’s suggestion 

that the jury would be undisturbed by H.L.’s and M.R.’s testimony of the charged sexual 

assaults, which included forcible penetration and oral copulation of a teenager in her 

bedroom, but feel troubled to learn that defendant may have had forcible sex with a 

teenager in his house. (See, e.g., People v. Ennis (2010) 190 Cal.App.4th 721, 734 [no 

substantial prejudice where uncharged crime also involved molestation, but of a younger 

and disabled child].) The trial court further lessened the risk of the jury feeling a visceral, 

and therefore potentially biased, emotional reaction to M.R.’s testimony by excluding use 

of the term “rape.” As a result, admission of M.R.’s testimony was not unduly 

prejudicial. 

Further, contrary to defendant’s contention, the uncharged incidents were not so 

remote in time that their admission was an abuse of discretion. Three of the witnesses

described acts occurring within one to three years of the charged offenses. The fourth, 

D.R., attested to incidents from 2007 or 2008. However, her description of how 

defendant would touch her inappropriately while stretching, and make sexually graphic 

comments to her, closely resembled H.L.’s testimony of defendant’s acts. (See People v. 

Branch, supra, 91 Cal.App.4th at p. 285 [“significant similarities between the prior and 

the charged offenses may ‘balance[] out the remoteness’ ”].) Accordingly, the trial court 

was within its discretion to permit D.R.’s testimony, despite several years having passed 

since the events. Additionally, the testimony did not unduly consume time, as each 

witness was asked about her relationship with defendant and to provide a description of 

defendant’s uncharged acts. Indeed, the trial court took care to only admit some, but not 

all, of the uncharged acts, to ensure that the testimony did not use excessive time at trial.

There is also little likelihood of jury confusion from the uncharged acts. “Jurors 

are presumed able to understand and correlate instructions and are further presumed to 
23

have followed the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) 

Here, the jury was instructed with CALCRIM No. 1191A, which listed the uncharged 

crimes and explained that the jury was permitted to consider them, if proven, as evidence 

that defendant was disposed or inclined to commit sexual offenses. It further explained 

that the evidence was not sufficient by itself to prove defendant was guilty in this case. 

Thus, the jury was well apprised as to how to use the evidence, if it so chose. Moreover, 

these instructions, which advised the jury of the limited purpose for which it could 

consider evidence of the uncharged crimes, “counterbalanced” any risk that the jury

would be tempted to punish defendant for the uncharged acts. (People v. Frazier (2001) 

89 Cal.App.4th 30, 42 [risk that jury would punish the defendant for uncharged crimes 

counterbalanced by jury instructions]; see also People v. Miramontes (2010) 189 

Cal.App.4th 1085, 1103 [jury instruction on limited purpose of evidence of uncharged 

acts reduced possibility of jury confusion].) Thus, the trial court was within its discretion 

to find that the risk of jury confusion, if any, did not render the evidence inadmissible.

Accordingly, we find no error in the trial court’s admission of this evidence.5

III

CSAAS

Next, defendant argues that the trial court abused its discretion by admitting, over 

defendant’s objection, Dr. Carmichael’s expert testimony on CSAAS. Defendant admits 

that California courts have permitted use of CSAAS evidence for limited purposes, but 

argues it was inadmissible here for multiple reasons. Consequently, defendant avers that 

5 We note that the jury instructions reflect that the trial court also admitted evidence 

of the uncharged acts under Evidence Code section 1101, subdivision (b) as evidence of 

defendant’sintent, that defendant’s actions were not the result of mistake or accident, 

and/or that defendant had a plan or scheme to commit the charged offenses. As 

defendant does not argue that the evidence was inadmissible under this section, but solely 

focuses on its admissibility as propensity evidence under Evidence Code section 1108,

we do not express an opinion as to its admissibility under Evidence Code section 1101. 
24

Dr. Carmichael’s “irrelevant and inflammatory” testimony denied defendant a fair trial 

and reversal is required. We find no abuse of discretion.

A. Legal standard 

Expert opinion testimony is admissible when the subject matter is “beyond 

common experience,” and the opinion would assist the jury. (Evid. Code, § 801, subd.

(a).) An expert opinion may be provided at trial even if the jurors have some knowledge 

of the topic, as long as the testimony would assist the jury. (People v. Prince (2007) 40 

Cal.4th 1179, 1222 [an expert may testify on a subject about which jurors are not 

“ ‘wholly ignorant’ ”].) We review the trial court’s decision to admit expert testimony 

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

B. Analysis 

Defendant first argues that the CSAAS evidence was subject to exclusion because 

it fails to satisfy the Kelly-Frye

6

framework for the admission of scientific evidence. 

While defendant acknowledges that California courts have found CSAAS evidence

admissible in certain circumstances, he contends that CSAAS evidence is now outdated, 

unscientific, and no longer necessary to disabuse misconceptions about child sexual 

abuse.

In People v. McAlpin (1991) 53 Cal.3d 1289, our Supreme Court recognized that 

that CSAAS testimony has been found admissible as a means 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.’ ” (Id. at p. 1301.) 

It explained that CSAAS evidence is not admissible to prove the complaining witness has 

been abused, but rather to rehabilitate credibility when the defense suggests a child’s 

conduct after an incident is inconsistent with abuse. (Id. at p. 1300.) 

6 People v. Kelly (1976) 17 Cal.3d 24; Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013.
25

The Supreme Court later cited McAlpin with approval, extending its analysis to 

expert testimony on the common behaviors of victims of domestic violence. (People v. 

Brown (2004) 33 Cal.4th 892, 906.) And, Courts of Appeal have consistently followed

McAlpin and Brown in holding CSAAS testimony is admissible for the purposes stated in 

McAlpin. (See, e.g., People v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Julian

(2019) 34 Cal.App.5th 878, 885 (Julian); People v. Perez (2010) 182 Cal.App.4th 231, 

245.) While defendant urges us to reconsider Supreme Court precedent based on 

out‐of‐state decisions and news articles, we cannot rely on these authorities over our 

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

Further, Dr. Carmichael’s CSAAS testimony was not required to meet the KellyFrye standard for admissibility. Kelly-Frye “renders inadmissible evidence derived from 

a ‘new scientific technique’ unless the proponent shows [among other things] that . . . 

‘the technique is generally accepted as reliable in the relevant scientific community.’ ”

(People v. Jackson (2016) 1 Cal.5th 269, 315.) However, it is only when CSAAS 

evidence is offered as evidence of defendant’s guilt, or as a predictive tool, that courts 

have excluded the evidence as incompatible with Kelly-Frye. (See, e.g., People v. 

Bowker (1988) 203 Cal.App.3d 385, 389-395.) Where, as here, CSAAS evidence is 

offered for the limited purpose of rehabilitating witness credibility and explaining a

victim’s reactions to abuse, courts have consistently found that the Kelly-Frye reliability 

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

of proving that molestation had occurred. (See, e.g., People v. Wells (2004) 118 

Cal.App.4th 179, 187-190; People v. Gray (1986) 187 Cal.App.3d 213, 218-219.) 

Next, relying on multiple prospective jurors’ statements at voir dire, defendant 

contends the CSAAS testimony was irrelevant because the jury did not harbor 

misconceptions about delay and inconsistent reporting. However, the jurors’ statements 

during voir dire do not reflect that the jury had a comprehensive understanding of child 

abuse reporting. At best, several jurors touched upon some of the CSAAS factors, saying
26

victims may not come forward because, for example, “there are emotions involved . . . 

shame [and] fear,” “the situation could be difficult and [the child] could be scared,” or 

“there’s a lot of pressure not to report . . . sometimes, it just takes a while to process it.” 

And many of the jurors simply referred to a delay as “normal,” “understandable,” or “not

unusual.” Thus, while some jury members generally understood that a child might have 

reasons to delay reporting, their responses did not reveal that they were fully aware of all 

the relevant dynamics of child sexual abuse reporting. (See People v. Lapenias (2021) 67 

Cal.App.5th 162, 172-173 (Lapenias) [rejecting a similar claim when the record does not 

establish that all the empaneled jurors were aware of the entire spectrum of CSAAS

evidence].) Dr. Carmichael’s testimony was relevant to fill in those gaps in the jury’s

knowledge.

7

Finally, defendant contends that the statistical probability evidence Dr. Carmichael 

presented invaded the province of the jury. He argues that the statistics invited jurors to 

presume defendant’s guilt based on probabilities, rather than properly assessing the 

evidence. In support, defendant references the following assertions that Dr. Carmichael 

made at trial: research found that about 70 percent of victims showed no outward sign of 

distress; upwards of 60 to 70 percent of victims delayed disclosure of the abuse in the 

first year; children can be inconsistent in their disclosures; a “sizable minority” of alleged 

victims will later recant and say it did not happen; some research shows that younger

children might be more inclined to recant; and false allegations of child sexual abuse 

“mostly” arise in custody cases. 

7 Defendant makes the related assertion that Dr. Carmichael’s testimony was 

irrelevant because the public is now generally more educated on children’s responses to 

sexual abuse. However, even if, as defendant contends, the public might be more aware 

of these issues, this does not mean there are no longer any misconceptions about how 

children react to and report sexual abuse. Further, even assuming the jury or public was 

fully aware of the specifics of CSAAS, Dr. Carmichael’s testimony would be “merely 

cumulative and therefore not prejudicial.” (Lapenias, supra, 67 Cal.App.5th at p. 173.)
27

Defendant insists that this probability evidence was inadmissible under Julian, 

supra, 34 Cal.App.5th 878; People v. Wilson (2019) 33 Cal.App.5th 559; and Lapenias, 

supra, 67 Cal.App.5th 162. We find these cases distinguishable. In both Julian and

Wilson, the same expert testified that there were “a ‘dozen studies’ that supported a ‘one 

to six percent’ false allegation rate,” and that false allegations of child sexual abuse 

happen “ ‘very infrequently’ ” or “ ‘rarely.’ ” (Julian, at pp. 883-884; Wilson, supra, at 

p. 568 [same expert with the same testimony].) Both cases held it was an abuse of 

discretion for a court to permit an expert on child sexual abuse to testify about the

statistical percentages of false allegations by child sexual abuse victims. (Julian, at pp.

886-887; Wilson, at pp. 570-571.) In doing so, they relied on cases from various 

jurisdictions which held that permitting an expert to quantify the percentage of abuse 

victims who tell the truth deprives the jury of its right and ability to determine victim 

credibility. (Julian, at pp. 886-887; Wilson, at pp. 569-571.) As explained in People v. 

Bowker, supra, 203 Cal.App.3d 385, cited in Julian, “It is one thing to say that child 

abuse victims often exhibit a certain characteristic or that a particular behavior is not 

inconsistent with a child having been molested. It is quite another to conclude that where 

a child meets certain criteria, we can predict with a reasonable degree of certainty that he 

or she has been abused. The former may be appropriate in some circumstances; the latter

. . . clearly is not.” (Id. at p. 393.) Lapenias, in turn, relied on Julian and Wilson to hold 

that the trial court erred by admitting expert testimony that it was “ ‘rare’ for children to 

make false allegations of sexual abuse.” (Lapenias, at p. 179; id. at p. 178.)

Dr. Carmichael’s testimony is unlike the testimony found inadmissible in Julian,

Wilson, and Lapenias. Here. Dr. Carmichael did not testify as to the probability that an 

alleged victim would make false allegations of sexual abuse. Indeed, he did not present 

any qualitative or quantitative data from which the jury could infer that it was 

overwhelmingly likely the victims and witnesses were being truthful. Rather, his 

testimony addressed the misconception that children will immediately report abuse after 
28

it occurs, and that those children will tell consistent versions and have no reason to recant 

truthful testimony. Such testimony has been deemed admissible. (See e.g., People v. 

Stark (1989) 213 Cal.App.3d 107, 116-117 [CSAAS expert testimony admissible to 

explain victim’s delayed reporting and inconsistencies in victim’s testimony]; People v. 

Housley (1992) 6 Cal.App.4th 947, 954-956 [expert testimony that “victims commonly 

and falsely recant their stories of abuse” admissible].) And while Dr. Carmichael did 

reference statistics or otherwise make qualitative remarks regarding the likelihood of 

delayed disclosure, visible signs of distress, and the increased likelihood of false 

allegations in custody cases, he did so simply to inform the jury that the behavior of 

sexually abused children he described was typical. (See Lapenias, supra, 67 Cal.App.5th 

at p. 179.) His testimony did not improperly weigh in on victim credibility, nor did it 

suggest that any child who met his criteria had been abused. 

Accordingly, the trial court did not abuse its discretion by admitting 

Dr. Carmichael’s testimony. As we find no error, we reject defendant’s contention that 

the admission of CSAAS evidence violated his right to due process and a fair trial.

IV

Motion for New Trial

Defendant next avers that the trial court erroneously denied his motion for new 

trial, which was predicated on newly discovered evidence. We disagree.

A. Additional procedural background 

Following the jury verdict and sentencing, defendant moved for a new trial based 

on newly discovered medical records from a medical examination of M.R. that took place 

in December 2018, over a month after defendant allegedly raped M.R. The People 

discovered the evidence in December 2020, when M.R.’s mother told them that M.R. had 

a “ ‘rape exam,’ ” which she then clarified was a doctor’s visit through private insurance 

to check M.R. for sexually transmitted diseases (STD’s). Defendant argued that the 

medical records would have impeached M.R.’s credibility, because they did not contain 
29

corroborating findings of sexual assault, such that a different result on retrial was 

reasonably probable. 

The trial court denied the motion, finding that, if anything, the medical records 

corroborated M.R.’s testimony, the exam could not be described as a “rape exam,” and 

the exam was not particularly probative given the alleged rape occurred weeks prior. 

Accordingly, the trial court found that the information would not have benefited 

defendant at trial, and that it was therefore not reasonably probable that it would result in

a different outcome at trial.

“ ‘ “The determination of a motion for a new trial rests so completely within the 

court’s discretion that its action will not be disturbed unless a manifest and unmistakable 

abuse of discretion clearly appears.” ’ [Citations.] ‘ “[I]n determining whether there has 

been a proper exercise of discretion on such motion, each case must be judged from its 

own factual background.” ’ [Citation.] [¶] In ruling on a motion for new trial based on

newly discovered evidence, the trial court considers the following factors: ‘ “1. That the 

evidence, and not merely its materiality, be newly discovered; 2. That the evidence be 

not cumulative merely; 3. That it be such as to render a different result probable on a 

retrial of the cause; 4. That the party could not with reasonable diligence have discovered 

and produced it at the trial; and 5. That these facts be shown by the best evidence of 

which the case admits.” ’ ” (People v. Delgado (1993) 5 Cal.4th 312, 328.)

B. Analysis 

While there is no doubt that M.R.’s medical records were newly discovered 

following trial, the trial court was within its discretion to find that it is not reasonably 

probable that the introduction of this evidence would result in a different outcome at 

retrial. Defendant contends that the records would cast doubt on M.R.’s credibility, who 

was both a key witness and a victim, because they did not reveal physical evidence of 

sexual abuse. Further, defendant suggests that M.R. concealed the records due to a 

possible “hidden agenda.” However, the records were wholly consistent with M.R.’s 
30

testimony. They showed that M.R. reported “‘sexual abuse early Nov[ember]” occurring 

in Arizona, that her parents requested STD testing as a result, and that M.R. denied a 

rectal assault. A February 2019 progress note also states that M.R. was in therapy for 

posttraumatic stress syndrome and was experiencing “increasing depressed mood, 

anxiety, panic attacks,” which is generally consistent with M.R.’s statements at trial.

Moreover, while the record does not contain physical evidence of sexual assault, 

the lack of such evidence has no bearing on whether M.R. was actually sexually 

assaulted. Indeed, the records are not from a forensic rape exam, but rather from a 

doctor’s exam through M.R.’s private insurance, which took place weeks after defendant 

allegedly raped M.R. And, the fact that no STD’s were found does not impeach M.R.’s 

testimony. Thus, the trial court did not err by finding that it was not reasonably probable

that the medical records, which are consistent with M.R.’s testimony to the extent they 

have any probative value, would render a different result at trial. 

V

Resentencing

Finally, defendant contends he is entitled to remand for resentencing in light of 

two recent changes to the law that went into effect while his appeal was pending and 

apply retroactively. Defendant first argues that the trial court must now impose his 

sentences for counts 1, 2, and 4 consistent with the requirements of Senate Bill 567. He 

further argues that Assembly Bill 518 grants the trial court new discretion to determine 

which count to stay under section 654, and that resentencing is required on this basis as 

well. The People concede the latter point, and further assert that on remand, the trial 

court can address all of defendant’s sentencing claims. We accept the People’s 

concession and agree that remand for resentencing is required. 

A. Assembly Bill 518 

At the time defendant was sentenced, former section 654, subdivision (a) 

provided: “An act or omission that is punishable in different ways by different provisions 
31

of law shall be punished under the provision that provides for the longest potential term 

of imprisonment, but in no case shall the act or omission be punished under more than 

one provision.” (Stats. 1997, ch. 410, § 1.) Assembly Bill 518 amended section 654 to 

allow trial courts to exercise discretion in choosing the count for which it will impose 

punishment, rather than requiring imposition of the longest potential term of

imprisonment. (Stats. 2021, ch. 441, § 1.) Section 654, subdivision (a) now provides: 

“An act or omission that is punishable in different ways by different provisions of law 

may be punished under either of such provisions . . . .” 

Here, the trial court applied section 654 to stay the sentence on count 1, as it 

lacked discretion to apply section 654 to any other term. Because the trial court now has 

discretion to choose the term to which section 654 applies, and defendant’s case is not yet 

final, he is entitled to the benefits of amended section 654 pursuant to the principles of 

retroactivity established in In re Estrada (1965) 63 Cal.2d 740. (People v. Mani (2022) 

74 Cal.App.5th 343, 379.) Accordingly, we shall remand for the trial court to exercise its 

discretion in deciding which terms to stay pursuant to section 654 as amended.

B. Senate Bill 567 

Defendant further contends that he should be resentenced under Senate Bill 567. 

(Stats. 2021, ch. 731, § 1.3.) Senate Bill 567 requires that the trial court impose a term of 

imprisonment not exceeding the middle term unless (1) aggravating circumstances have 

been established by stipulation or found true beyond a reasonable doubt at trial, or (2) the 

defendant has suffered prior convictions as established by certified records. (§ 1170, 

subd. (b).) The new law generally allows for a bifurcated trial on these aggravating 

circumstances. (§ 1170, subd. (b)(2).) Due to the People’s acknowledgement that

remand is appropriate to resentence defendant pursuant to Assembly Bill 518, they

declined to address the application of Senate Bill 567 to defendant’s sentence.
32

We also need not address the applicability of Senate Bill 567 at this time. On 

remand, the trial court will have the opportunity to apply section 1170, subdivision (b), as 

amended, to impose the appropriate sentence.

DISPOSITION

The sentence is vacated, and the case is remanded to the trial court to exercise its 

discretion in deciding which terms to stay pursuant to section 654 (as amended by Stats. 

2021, ch. 441, § 1), and to impose terms of imprisonment consistent with section 1170, 

subdivision (b) (as amended by Stats. 2021, ch. 731, § 1.3), to the extent applicable. If 

the court imposes a different sentence than that imposed at the initial sentencing, it is 

directed to prepare an amended abstract of judgment and to forward a certified copy 

thereof to the Department of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

 KRAUSE , J.

We concur:

 DUARTE , Acting P. J.

 McADAM , J.*

*

Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.