Filed 12/22/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALFREDO RAMIREZ,

Defendant and Appellant.

 H049957

 (Monterey County

 Super. Ct. No. 18CR008098)

I. INTRODUCTION

A jury found defendant Alfredo Ramirez guilty of three counts of lewd or 

lascivious acts upon child Jane Doe 1 (Pen. Code, § 288, subd. (a); counts 1–3),1three 

counts of using minor Jane Doe 1 for sex acts (§ 311.4, subd. (c); counts 4–6), one count 

of possession of matter depicting a minor engaging in sexual conduct (§ 311.11, 

subd. (a); count 7), one count of a lewd or lascivious act upon child Jane Doe 2 (§ 288, 

subd. (a); count 8), one count of a lewd or lascivious act upon child Jane Doe 3 (§ 288, 

subd. (a); count 9), and two counts of lewd or lascivious acts upon child Jane Doe 4 

(§ 288, subd. (a); counts 10–11). With regard to each of the lewd or lascivious acts upon 

a child counts, the jury found true enhancements for committing the offenses against 

multiple victims (§§ 667.61, subds. (b) & (e)(4), 1203.066, subd. (a)(7)). The trial court 

sentenced defendant to a total term of 107 years to life in prison. The trial court also 

imposed various fines and fees, including a $10,000 restitution fine pursuant to 

1 All statutory references are to the Penal Code unless otherwise indicated.
2

section 1202.4, subdivision (b), and a suspended parole revocation restitution fine in the 

same amount pursuant to section 1202.45.

On appeal, defendant raises nine claims of error: (1) the compelled use of his 

fingerprint to unlock his phone constituted an unreasonable search under the Fourth 

Amendment to the United States Constitution; (2) the compelled use of his fingerprint to 

unlock his phone violated his privilege against compulsory self-incrimination under the 

Fifth Amendment to the United States Constitution and under the California Constitution; 

(3) the compelled use of his fingerprint to unlock his phone violated his right to due 

process under the Fifth and Fourteenth Amendments to the United States Constitution 

and under the California Constitution; (4) if the first three issues were not properly 

preserved for appeal, he received constitutionally ineffective assistance of counsel; 

(5) the trial court erred in admitting expert testimony concerning child sexual abuse 

victims’ responses; (6) the trial court erroneously instructed the jury that behaviors of 

child sexual abuse victims could be considered to evaluate the credibility of the 

complaining witnesses, depriving defendant of his right to due process; (7) the trial court 

violated his due process right by instructing the jury that it could use proof of any 

charged offense to infer defendant was predisposed to commit the other charged offenses; 

(8) he received constitutionally ineffective assistance of counsel when his trial counsel 

failed to object to a comment by the prosecutor in closing argument that the jury should 

not consider lesser included offenses on two counts until it first found defendant was not 

guilty of the charged offenses; and (9) his due process right was violated by the 

imposition of certain fines and fees without a determination that he was able to pay those 

costs.

For reasons that we will explain, we will affirm the judgment.
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II. BACKGROUND

A. Jane Does 2, 3, and 4

When defendant was in high school, he began dating a 15-year-old girl, M. M. 

was one of 12 children in her family. M. became pregnant and gave birth to a daughter at 

age 15, and she married defendant. At least three of M.’s younger sisters – Jane Does 2, 

3, and 4 – would regularly sleep over at the home of defendant, M., and the couple’s 

daughter. The sleepovers were defendant’s idea. M.’s brothers would not sleep over at 

defendant’s house. Defendant also took Jane Does 2, 3, and 4 to various activities, 

including swimming pools, amusement parks, and a boardwalk. M.’s brothers generally 

did not come to these activities.

According to Jane Doe 2’s testimony at defendant’s trial, defendant once came 

into the room where she was sleeping during a sleepover and tugged at her blanket, 

scaring her. Jane Doe 2, who was between age 11 and age 13 at the time, falsely told 

defendant her stomach hurt and defendant left the room. Jane Doe 2, who described 

herself as a heavy sleeper, testified that every time she slept at defendant’s home, she 

would wake up in the morning to find her pants undone, something that did not happen 

when she slept elsewhere. Jane Doe 2 also testified that when she was about 13 years 

old, defendant took her and her sisters to the pool, and took her to buy a swimsuit 

beforehand. Defendant bought Jane Doe 2 a bikini, encouraging her to choose a bikini 

and telling her that she would not be able to wear one when she was older. Jane Doe 2 

testified that when they went to the pool after this, defendant repeatedly threw her up in 

the air while they were in the pool, each time lifting her top and touching her breasts as 

she came back down into the water. Jane Doe 2 reported these incidents to her mother 

and to police in 1996.

Jane Doe 3 testified that she “hated” going to sleepovers at defendant’s house 

“[b]ecause I knew that he would try to sneak in the room or sneak next to us.” She 

testified that she noticed one morning of a sleepover that the straps of her overalls were 
4

off. Jane Doe 3 testified that “[p]robably every time I spent the night at their house,” 

defendant would come into their room in the middle of the night, and Jane Doe 3 would 

try to protect her sisters by waking them up. She recalled one time when during the 

night, defendant touched the bare skin on her leg from her calf to her thighs, scaring her. 

She was about 11 years old when this occurred. As with Jane Doe 2, Jane Doe 3 reported 

this information to her mother and to police in 1996.

Jane Doe 4 was the youngest of the sisters and took part in sleepovers at 

defendant’s house from about age seven to age nine. She testified that she generally wore 

nightgowns during the sleepovers at defendant’s request. However, she testified that her 

sisters both wore overalls at night and they would find the overalls unbuckled in the 

morning. She testified that defendant would come into the room during the night. She 

testified that this scared her, because defendant came into the room seven or eight times 

and touched her on her vagina with his hand, with skin-on-skin contact. She also testified 

that defendant would touch her buttocks through her clothes while she slept over at his 

house, and that this happened “[m]ore than twice.” Like her sisters, Jane Doe 4 told her 

mother about defendant’s actions and then reported defendant’s actions to police in 1996. 

Police did not refer the matter for prosecution.

When the girls reported defendant’s actions to police, defendant called the girls’ 

mother that same day, asking her who reported him to police. The girls’ mother testified 

that defendant told her, “You need to drop everything,” and that the police report would 

harm his marriage to M. The girls’ mother also testified that defendant also “desperately 

pleaded” that if the matter were dropped, he would move out of town.

B. Jane Doe 1

Defendant and M.’s marriage ended at some point after this. Later, in the time 

leading up to August 2018, defendant’s cousin’s daughter, Jane Doe 1, would have 

sleepovers with another daughter defendant later had with another woman, with the 

sleepovers taking place at defendant’s house. On August 5, 2018, Jane Doe 1 reported to 
5

her mother that she did not want to sleep over at defendant’s house again because 

defendant was “weird.” When the girl’s mother asked her what she meant, Jane Doe 1 

reported that during the previous night, defendant pulled down her pants and took 

pictures of her vagina. The girl’s mother reported this to law enforcement. Jane Doe 1’s 

mother also provided law enforcement with a photograph of Jane Doe 1 that depicted 

what the girl was wearing the previous night during the sleepover.

C. The Investigation

Gabriel Gonzalez, a detective with the Salinas Police Department, was assigned to 

the case involving Jane Doe 1. Gonzalez found and reviewed the 1996 report involving 

Jane Does 2, 3, and 4, and he interviewed the three women in addition to Jane Doe 1. 

Gonzalez obtained a warrant to search defendant’s home and vehicles and to seize 

defendant’s phone. Gonzalez and other detectives then stopped a vehicle defendant was 

in and took possession of the cell phone defendant had on him, based on Jane Doe 1’s 

report that defendant used his phone to take pictures of defendant’s sexual abuse of her. 

Gonzalez called the phone number Jane Doe 1’s mother had provided for defendant, and 

the cell phone taken from defendant rang.

Gonzalez then obtained two electronic communications search warrants to search 

the contents of the phone along with a tablet found at defendant’s home. After obtaining 

the first electronic communications search warrant, Gonzalez used defendant’s finger to

unlock the phone and searched the phone’s contents, finding “dozens of images of young 

girls” on the phone, with many of the images “focused on the buttocks of these young 

girls.” After obtaining the second electronic communications search warrant, Gonzalez 

again used defendant’s finger to unlock the phone. Gonzalez then searched the phone’s 

contents and found three videos of Jane Doe 1 wearing the same clothing as in the 

photograph Jane Doe 1’s mother had provided police. These videos each depicted Jane 

Doe 1 lying in bed with her eyes closed as the camera approached and a hand pulled 
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down her shorts and touched her vagina. Gonzalez also found sexually explicit images of 

other young girls on the phone.

D. Pretrial and Trial Proceedings

Defendant moved in limine to suppress the results of the search of his cell phone, 

alleging that the compelled use of his fingerprint constituted an unreasonable warrantless 

search, violated his privilege against compulsory self-incrimination, and violated his right 

to due process. The trial court denied defendant’s motion. The prosecution also moved 

to admit expert testimony from Dr. Anthony Urquiza concerning behavior by child sexual 

abuse victims, while the defense moved to “exclude and or limit” testimony regarding 

child sexual abuse accommodation syndrome. The trial court ruled Dr. Urquiza could 

testify to the limited matters the prosecutor identified. The prosecutor also moved under 

Evidence Code section 1108 to be permitted to argue that evidence of defendant’s 

commission of sexual offenses against one alleged victim could be used to prove 

defendant’s propensity to commit sexual offenses against the other alleged victims. The 

trial court granted the prosecutor’s motion, permitting the prosecution “to argue 

propensity under [section] 1108 of the Evidence Code as to the charged offenses.”

At trial, Jane Does 1, 2, 3, and 4 testified, along with the mothers of Jane Doe 1 

and Jane Does 2 through 4. Gonzalez testified about what was discovered on defendant’s 

cell phone. Finally, Dr. Urquiza testified for the prosecution as an expert in the 

psychological effects of child sexual abuse. Defendant did not testify, and the defense 

called no witnesses and presented no evidence.

Following Dr. Urquiza’s testimony and again following closing arguments, the 

trial court instructed the jury in accordance with CALCRIM No. 1193, which instructed 

the jury concerning permissible and impermissible uses of Dr. Urquiza’s testimony. This 

instruction stated in relevant part: “Dr. Urquiza’s testimony about the psychological 

effects of child sexual abuse and general myths and misconceptions is not evidence that 

the defendant committed any of the crimes charged against him or any conduct or crimes 
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with which he was not charged. [¶] You may consider this evidence only in deciding 

whether or not the conduct of Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, was 

not inconsistent with the conduct of someone who has been molested, and in evaluating

the believability of their testimony.” The trial court also instructed the jury in accordance 

with CALCRIM No. 1191B, which informed the jury that if the prosecution proved 

beyond a reasonable doubt that defendant committed one or more of the lewd and 

lascivious acts counts (counts 1, 2, 3, 8, 9, 10, and 11), “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 and did commit the other sex offenses charged in this case.”

In the rebuttal argument, the prosecutor stated: “So you are going to see an 

instruction in the verdict forms for Counts 8 and 9. Lessers are basically if you find the 

defendant not guilty of Counts 8 or 9, then and only then do you consider the lesser 

offense.” Defense counsel did not object to this statement.

This appeal followed after the jury’s verdict and sentencing.

III. DISCUSSION

A. Use of Defendant’s Finger to Unlock Phone – Search and Seizure

1. Factual Background

After receiving the report from Jane Doe 1’s mother and obtaining a photograph 

depicting Jane Doe 1’s clothing and appearance the night of the alleged sexual abuse, 

Gonzalez obtained a warrant on August 23, 2018 to search defendant’s residence, 

vehicle, and person, and to seize defendant’s cell phone “and the data, photographs, 

messages, and information contained on the cellular device.” Gonzalez surveilled 

defendant’s home, and when he saw defendant leave the home in a vehicle, Gonzalez 

and other detectives stopped the vehicle on August 24, 2018 and seized defendant’s 

cell phone. Gonzalez called the phone number Jane Doe 1’s mother had given him for 

defendant, and the cell phone taken from defendant rang.
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Gonzalez then obtained a second warrant on August 24, 2018 to search 

defendant’s phone along with a tablet found at defendant’s home. This electronic 

communications search warrant authorized police to search the phone for evidence 

including photos and videos. Nothing on the face of the electronic communications 

search warrant referenced whether or how police could unlock the phone. However, the 

statement of probable cause that Gonzalez signed and that accompanied the affidavit 

states: “Your affiant requests permission to contact [defendant] so that we can use his 

fingerprint to open his cell phone and go into the settings and turn off security features in 

order to keep the phone unlocked so it can be searched. It has been my training and 

experience that newer smart phones are difficult to access absent the passcode or 

fingerprint even with recent technological advancements. . . . [¶] Your affiant will 

attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not 

cooperate with you[r] magistrate’s order, your affiant request[s] permission to use 

reasonable force to obtain his fingerprint on his cell phone.” Gonzalez took the warrant 

to the jail where defendant was located, and Gonzalez took defendant’s right hand and 

guided defendant’s fingers one by one to the phone without using “physical force” in an 

attempt to unlock the phone. None of the fingers on defendant’s right hand unlocked the 

phone, so Gonzalez then asked for defendant’s left hand. Gonzalez then “grabbed” 

defendant’s left hand and “guided it towards the phone.” As Gonzalez did so, defendant 

“momentarily pulled away” before complying and allowing Gonzalez to guide his hand 

toward the phone without physically resisting. However, defendant told Gonzalez, “I’m 

not giving you permission to do that.” A fingerprint on defendant’s left hand unlocked 

the phone, and Gonzalez looked through the contents of the phone, observing “dozens of 

images of young girls” on the phone, with many of the images “focused on the buttocks 

of these young girls.” However, as Gonzalez handed the phone off to a member of the 

police department’s computer forensic team, the device locked. Police could not bypass 
9

the requirement to provide a fingerprint to unlock the phone, because doing so required a 

passcode.

Because the phone locked and defendant’s fingerprint was again required to 

unlock the phone, Gonzalez then obtained another electronic communications search 

warrant concerning the phone, also on August 24, 2018. As with the earlier electronic 

communications search warrant, this warrant contained nothing on its face referencing 

whether or how police could unlock the phone, but Gonzalez’s statement of probable 

cause requested permission to contact defendant to obtain his fingerprint to unlock the 

phone and to use reasonable force if necessary to obtain defendant’s fingerprint. 

Gonzalez again brought this warrant to the jail and asked defendant for his hand. 

Defendant objected, stating that he wanted his attorney to review the warrant and to be 

present, but he did not physically resist. Gonzalez testified that he heard another 

detective tell defendant, “Look, man, we don’t want to make this more difficult than it 

has to be, and we’re going to get your thumbprint on that phone whether you like it or 

not.” Gonzalez also testified that he heard the other detective say, “So you could either 

just do it and get it over with and deal with your day in court with it, or it’s not going to 

be fun.” Gonzalez guided the same finger that earlier unlocked the phone to the phone 

without using physical force, and the phone unlocked. Gonzalez then searched the 

phone’s contents and found three videos of Jane Doe 1 wearing the same clothing as in 

the photographs Jane Doe 1’s mother had provided to the police. These videos each 

depicted Jane Doe 1 lying in bed with her eyes closed as the camera approached and a 

hand pulled down her shorts and touched her vagina. Gonzalez also found sexually 

explicit images of other young girls on the phone that formed the basis for the count of 

possession of matter depicting a minor engaging in sexual conduct (count 7).

2. Legal Principles and Standard of Review

“When reviewing issues relating to the suppression of evidence derived from 

governmental searches and seizures, we defer to the court’s factual findings, express or 
10

implied, where supported by substantial evidence. [Citation.] To determine whether, 

based on the facts so found, a search or seizure was reasonable under the Fourth 

Amendment, we exercise our independent judgment. [Citation.]” (People v. Fayed

(2020) 9 Cal.5th 147, 186.)

“The Fourth Amendment to the United States Constitution prohibits ‘unreasonable 

searches and seizures.’ In general, a law enforcement officer is required to obtain a 

warrant before conducting a search. [Citation.] Warrantless searches ‘are per se

unreasonable under the Fourth Amendment—subject only to a few specifically 

established and well-delineated exceptions.’ [Citations.]” (People v. Lopez (2019) 

8 Cal.5th 353, 359.) In general, the warrant requirement applies to searches of cell 

phones because of the “broad array of private information” contained in modern cell 

phones. (Riley v. California (2014) 573 U.S. 373, 397 (Riley).)

“A ‘search’ occurs when an expectation of privacy that society is prepared to 

consider reasonable is infringed.” (United States v. Jacobsen (1984) 466 U.S. 109, 113, 

fn. omitted.) “Invasions of the body, including nonconsensual extractions of an 

incarcerated felon’s blood for DNA profiling, are searches entitled to the protections of 

the Fourth Amendment. [Citation.] ‘As the text of the Fourth Amendment indicates, the 

ultimate measure of the constitutionality of a governmental search is “reasonableness.” ’ 

[Citation.]” (People v. Robinson (2010) 47 Cal.4th 1104, 1119–1120.) 

“ ‘Reasonableness . . . is measured in objective terms by examining the totality of the 

circumstances’ [citation], and ‘whether a particular search meets the reasonableness 

standard “ ‘is judged by balancing its intrusion on the individual’s Fourth Amendment 

interests against its promotion of legitimate governmental interests.’ ” ’ [Citations.]” 

(Id. at p. 1120.)

3. Analysis

At the conclusion of defendant’s motion to suppress the results of the search of 

defendant’s phone, the trial court denied the motion. Regarding defendant’s 
11

unreasonable search and seizure argument, the trial court cited Gonzalez’s probable cause 

statements that asked permission to use reasonable force to obtain defendant’s fingerprint 

to unlock the cell phone. The trial court ruled that probable cause supported the warrants, 

and that “the statement of probable cause was properly incorporated by reference into the 

search warrants.” The trial court also cited several cases for the proposition that police 

officers are permitted to “use reasonable force to carry out a bodily intrusion search if the 

suspect forcibly resists a lawful but nonconsensual search.” The trial court concluded 

law enforcement’s actions in this case were less intrusive than other situations that have 

been held to constitute reasonable force to carry out a search, such as forcing a suspect to 

submit to a blood draw, provide a urine sample, remove evidence from his or her mouth, 

submit to a strip search, or submit to a body cavity search. The trial court ruled that 

Gonzalez used reasonable force in requiring defendant to produce his fingerprint to 

unlock the phone, noting that Gonzalez did not injure defendant, did not use any “forceful 

control holds,” and did not violate defendant’s personal privacy, concluding: “the 

officers utilized verbal commands and used the minimal amount of force necessary to 

guide his fingers onto the cellphone screen.” The trial court also concluded that the 

evidence did not need to be suppressed because law enforcement would have inevitably 

discovered the contents of defendant’s phone through other technological means, and 

because the good faith exception to the Fourth Amendment exclusionary rule applied.

Gonzalez obtained two electronic communications search warrants to search the 

contents of the phone. Defendant therefore does not appear to challenge the search of 

the phone itself as a violation the Fourth Amendment. Instead, he alleges that law 

enforcement violated his Fourth Amendment right to be free from unreasonable searches 

because “the forced extraction of [defendant’s] biometric data, in the form of his 

fingerprint, without a separate warrant specifically requesting extraction of that data, 

constituted an unreasonable search.” The parties dispute whether the compelled use of 

defendant’s fingerprint constitutes a search entitled to Fourth Amendment protection, 
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whether the electronic search communications warrants provided law enforcement with 

authority to compel defendant to produce his fingerprint, and whether—if a warrant was 

required to use defendant’s fingerprint to unlock the phone but such a warrant was not 

obtained––suppression of the evidence from defendant’s phone is required under the 

exclusionary rule. We conclude that even assuming the compelled use of defendant’s 

fingerprint constitutes a search within the meaning of the Fourth Amendment, the 

electronic communications search warrants issued by the magistrate authorized law 

enforcement officials to require defendant to produce his fingerprint to unlock the phone. 

Thus, no Fourth Amendment violation occurred. Moreover, even assuming a Fourth 

Amendment violation occurred because the warrant did not encompass the compelled use 

of defendant’s fingerprint, the evidence discovered on defendant’s phone was not 

required to have been excluded because the good faith exception to the exclusionary rule 

applies.

“The scope of a warrant is determined by its language, reviewed under an 

objective standard without regard to the subjective intent of the issuing magistrate or the 

officers who secured or executed the warrant. [Citations.] . . . As many courts have 

observed, ‘officers executing a search warrant are “required to interpret it,” and they are 

“not obliged to interpret it narrowly.” ’ [Citation.] To satisfy the objective standard, the 

officer’s interpretation must be reasonable.” (People v. Balint (2006) 138 Cal.App.4th 

200, 207.) “While we do not interpret warrants narrowly, we must interpret them 

reasonably. [Citation.]” (People v. Nguyen (2017) 12 Cal.App.5th 574, 583.)

In both electronic communications search warrants, Gonzalez’s probable cause 

statements to the magistrate specifically requested permission to contact defendant to 

obtain his fingerprint to open the phone, and the statements both read: “Your affiant will 

attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not 

cooperate with you[r] magistrate’s order, your affiant request[s] permission to use 

reasonable force to obtain his fingerprint on his cell phone.” The warrants ordered law 
13

enforcement to search the cell phone for stored electronic communications, including 

images and videos. Law enforcement could not comply with the warrants and search the 

phone without unlocking it, a fact Gonzalez clearly communicated to the magistrate in

the affidavits accompanying the warrant applications. Gonzalez’s statements of probable 

cause were incorporated by reference into the warrants. Both electronic communications 

search warrants stated: “The facts in support of this warrant are contained in the 

Statement of Probable Cause and any exhibits, which are attached hereto and 

incorporated by reference.” In fact, the second electronic communications search warrant 

(the third warrant overall that Gonzalez obtained in this matter) specifically noted that 

police had used defendant’s finger to unlock the phone, but that police could not turn off 

the screen lock function without a passcode, and therefore the phone locked after police 

conducted an initial review of the phone. There would be no need to seek the second 

electronic communications search warrant if defendant’s fingerprint was not necessary, 

as the re-locking of the phone was the reason for the additional warrant. A reasonable 

officer in Gonzalez’s position would have understood that the warrants authorized him to 

obtain defendant’s fingerprint to unlock the phone, and to use reasonable force to compel 

defendant to produce his fingerprint.

The trial court agreed with this conclusion, ruling that Gonzalez’s statements of 

probable cause were incorporated by reference into the warrants, and thus Gonzalez’s 

actions in compelling defendant to provide his fingerprint to unlock the phone were not 

warrantless. Defendant argues that the trial court erred in this respect, because he asserts 

that the face of the warrant must authorize the compelled use of a fingerprint to unlock a 

phone. Relatedly, he asserts that because the face of the warrant does not specifically 

authorize law enforcement to compel the use of defendant’s fingerprint to unlock the 

phone, “there is no guarantee that the magistrate issuing the warrant was aware the 

officers planned to extract [defendant’s] biometric data or use force in doing so.”
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However, defendant cites no authority for the proposition that the magistrate’s 

authorization to use his fingerprint was required to be contained on the face of the 

warrant rather than in the probable cause statement that was incorporated into the 

warrant. Generally, “the scope of the officer’s authority is determined from the face 

of the warrant and not from the affidavit.” (Thompson v. Superior Court (1977) 

70 Cal.App.3d 101, 109.) Here, nothing on the face of the warrant either specifically 

authorized Gonzalez to unlock the phone with defendant’s fingerprint or prohibited 

Gonzalez from taking this action. A deficient description of the place to be searched or 

items to be seized may be cured by reference to the affidavit where “(1) the affidavit 

accompanies the warrant at the time it is served, and (2) the warrant uses suitable words 

of reference which incorporate the affidavit by reference. [Citations.]” (People v. 

MacAvoy (1984) 162 Cal.App.3d 746, 755.) “The requirement that the affidavit be 

incorporated into and attached to the warrant insures that both the searchers and those 

threatened with search are informed of the scope of the searcher’s authority. [Citations.] 

‘When the affidavit is incorporated into the warrant and limits the generality of the 

description in the warrant, the discretion of the officers executing the warrant is limited. 

When the affidavit accompanies the warrant the person being searched has notice of the 

specific items the officer is entitled to seize . . . .’ [Citation.] Thus, the requirements of 

incorporation by reference and attachment provide the same protection provided by an 

adequate description on the face of the warrant: clear notice to the executing officer and 

those subject to search of the authorized scope of the search at the time the warrant is 

executed.” (Id. at pp. 755–756.)

The Fourth Amendment does not prohibit “a warrant from cross-referencing other 

documents. Indeed, most Courts of Appeals have held that a court may construe a 

warrant with reference to a supporting application or affidavit if the warrant uses 

appropriate words of incorporation, and if the supporting document accompanies the 

warrant. [Citations.]” (Groh v. Ramirez (2004) 540 U.S. 551, 557–558.) Here, there is 
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no dispute that the warrants used appropriate words to incorporate Gonzalez’s probable 

cause affidavits, and that the affidavits accompanied the warrants at the time they were 

served. Both electronic communications search warrants stated: “The facts in support of 

this warrant are contained in the Statement of Probable Cause and any exhibits, which are 

attached hereto and incorporated by reference.” The use of defendant’s fingerprint to 

unlock the phone was the means by which the search of the phone was to be conducted, 

not an end unto itself. The magistrate knew from the probable cause statement that use 

of defendant’s fingerprint was likely to be necessary for the search of the phone to be 

carried out, and the magistrate authorized the search with this knowledge. Therefore, 

even assuming the compelled use of defendant’s finger to unlock the phone constituted a 

“search” under the Fourth Amendment, the warrant authorized law enforcement to utilize 

defendant’s fingerprint to unlock the phone before searching it, and law enforcement thus 

complied with the Fourth Amendment’s warrant requirement.

Even if the electronic communications search warrants could not be reasonably 

understood to encompass the compelled use of defendant’s fingerprint, suppression of 

the evidence discovered on defendant’s phone was not required because the good faith 

exception to the exclusionary rule applies. “Exclusion of evidence due to a Fourth 

Amendment violation is not automatic.” (People v. Macabeo (2016) 1 Cal.5th 1206, 

1219.) While the exclusionary rule “ ‘bars the prosecution from introducing evidence 

obtained by way of a Fourth Amendment violation,’ ” “the deterrent purpose of the rule 

is not served by excluding evidence when an officer reasonably acts in objective good 

faith.” (Id. at p. 1220.) “ ‘If the purpose of the exclusionary rule is to deter unlawful 

police conduct, then evidence obtained from a search should be suppressed only if it can 

be said that the law enforcement officer had knowledge, or may properly be charged with 

knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” 

(United States v. Leon (1984) 468 U.S. 897, 919 (Leon).) The good faith exception 

assumes “that the officers properly executed the warrant and searched only those places 
16

and for those objects that it was reasonable to believe were covered by the warrant.” (Id.

at p. 918, fn. 19.)

In Leon, the United States Supreme Court “set forth four scenarios in which such 

objectively reasonable reliance should not be found and suppression remained the 

appropriate remedy: (1) ‘[T]he magistrate or judge in issuing a warrant was misled by 

information in an affidavit that the affiant knew was false or would have known was false 

except for his [or her] reckless disregard of the truth’; (2) if ‘the issuing magistrate 

wholly abandoned his [or her] judicial role’; (3) the affidavit is ‘ “so lacking in indicia of 

probable cause as to render official belief in its existence entirely unreasonable” ’; or 

(4) if the warrant was ‘so facially deficient—i.e., in failing to particularize the place to be 

searched or the things to be seized—that the executing officers cannot reasonably 

presume it to be valid.’ [Citation.]” (People v. Meza (2023) 90 Cal.App.5th 520, 543.) 

“The government bears the burden to establish applicability of the good faith exception. 

[Citation.]” (Ibid.)

Here, even if the compelled use of defendant’s fingerprint to unlock the phone 

constituted a search, and even if the warrant did not authorize the compelled use of 

defendant’s fingerprint to unlock the phone, the prosecution established that the good 

faith exception applies. Gonzalez sought and obtained three warrants, including two 

electronic communications search warrants. His probable cause statements specifically 

spelled out the request to obtain defendant’s fingerprint to unlock the phone, and the need 

to use reasonable force, if necessary, to obtain defendant’s fingerprint to unlock the 

phone. In addition, Gonzalez’s probable cause statement for the second electronic 

communications search warrant specifically noted that police had used defendant’s 

fingerprint to unlock the phone once, but that using his fingerprint to unlock the phone 

again was necessary because the screen lock function could not be disabled without a 

passcode. None of the four Leon scenarios where the good faith exception does not apply 

is present here. Defendant points to no misinformation in Gonzalez’s affidavits. No 
17

evidence was presented to the trial court concerning the magistrate abandoning a judicial 

role. For the reasons articulated above, even though nothing on the face of the warrant 

specifically authorized Gonzalez to unlock the phone with defendant’s fingerprint, the 

warrant would have been reasonably understood to include this action, and thus the 

warrant was not so lacking in indicia of probable cause as to render official belief in its 

existence entirely unreasonable. Finally, for similar reasons, the warrant did not fail to 

particularize the place to be searched or the things to be seized such that Gonzalez could 

not reasonably presume it to be valid. The object of the search was clear: based on Jane 

Doe 1’s report of recent sexual abuse captured on defendant’s phone, police were to seize 

the phone and search it for evidence including images or videos of the abuse. In order to 

search the phone, unlocking it was necessary, a fact the probable cause statements clearly 

informed the magistrate of. Gonzalez’s affidavit listed in detail the information that 

indicated that evidence of defendant’s crimes would be found on the phone. Defendant 

does not assert that probable cause to support the search of the phone was lacking. If law 

enforcement officials committed any error, the error was limited to not specifically listing 

on the face of the warrant the need to use defendant’s fingerprint to unlock the phone. 

However, this matter was addressed in the affidavit and was incorporated by reference 

into the warrant. Under these facts, no deterrent purpose would be served by excluding 

the evidence, as Gonzalez and other law enforcement officials reasonably acted in 

objective good faith on the issuance of two electronic communications search warrants.2 

(Leon, supra, 468 U.S. at p. 919.)

2 Our resolution of this matter means we need not decide whether the inevitable 

discovery doctrine applies, which the Attorney General asserts is another basis for 

concluding that the evidence from defendant’s cell phone should not be suppressed.
18

B. Use of Defendant’s Finger to Unlock Phone – Privilege Against Compulsory 

Self-Incrimination

Defendant next argues that the compelled use of his finger to unlock the phone 

violated his privilege against compulsory self-incrimination under the Fifth Amendment 

to the United States Constitution and article I, section 15 of the California Constitution. 

Defendant argues that the use of his fingerprint to unlock the phone was compelled, 

incriminating, and testimonial, and therefore violated his privilege against compulsory 

self-incrimination. The Attorney General responds that “the trial court reasonably held 

that requiring [defendant] to use his finger to unlock his phone was not tantamount to 

compelled testimony.” The Attorney General also asserts that compelling defendant to 

provide his fingerprint to unlock the phone did not violate defendant’s privilege against 

compulsory self-incrimination because this act produced nontestimonial evidence under 

the “foregone conclusion” doctrine.

1. Legal Principles and Standard of Review

“It is error under the United States Constitution to admit a defendant’s coerced 

confession into evidence at a criminal trial. [¶] The Fifth Amendment establishes a 

privilege against self-incrimination: ‘No person . . . shall be compelled in any criminal 

case to be a witness against himself . . . .” (People v. Cahill (1993) 5 Cal.4th 478, 512.) 

“Separately and independently, it is error under the California Constitution to admit a 

defendant’s coerced confession into evidence at a criminal trial. . . . For present 

purposes, the state constitutional privilege is much the same as the federal. [Citation.]” 

(Id. at p. 514.) “At its core, the privilege protects against the ‘cruel trilemma of selfaccusation, perjury or contempt.’ [Citation.] Accordingly, the amendment prohibits 

the direct or derivative criminal use against an individual of ‘testimonial’ 

communications of an incriminatory nature, obtained from the person under official 

compulsion. [Citations.]” (People v. Low (2010) 49 Cal.4th 372, 390.) Thus, “[t]o 

qualify for the Fifth Amendment privilege, a communication must be testimonial, 
19

incriminating, and compelled. [Citation.]” (Hiibel v. Sixth Judicial Dist. Court of Nev., 

Humboldt Cty. (2004) 542 U.S. 177, 189.)

“[I]n order to be testimonial, an accused’s communication must itself, explicitly or 

implicitly, relate a factual assertion or disclose information. Only then is a person 

compelled to be a ‘witness’ against himself [or herself].” (Doe v. United States (1988) 

487 U.S. 201, 210, fn. omitted (Doe).) “Thus, a suspect may be compelled to furnish a 

blood sample, [citation]; to provide a handwriting exemplar, [citation], or a voice 

exemplar, [citation]; to stand in a lineup, [citation]; and to wear particular clothing, 

[citation]. These decisions are grounded on the proposition that ‘the privilege protects an 

accused only from being compelled to testify against himself [or herself], or otherwise 

provide the State with evidence of a testimonial or communicative nature.’ [Citation.]” 

(Ibid.) “It is the ‘extortion of information from the accused,’ [citation], the attempt to 

force him [or her] ‘to disclose the contents of his [or her] own mind,’ [citation], that 

implicates the Self-Incrimination Clause. [Citation.] ‘Unless some attempt is made to 

secure a communication -- written, oral or otherwise -- upon which reliance is to be 

placed as involving [the accused’s] consciousness of the facts and the operations of his 

[or her] mind in expressing it, the demand made upon him [or her] is not a testimonial 

one.’ [Citation.]” (Id. at p. 211, fn. omitted.) Thus, “[r]equests by the prosecution for 

handwriting and fingerprint evidence from a defendant or a suspect are not prohibited by 

the Fifth Amendment right against self-incrimination because such evidence is not 

testimonial in nature. [Citations.]” (Northern Mariana Islands v. Bowie (2001) 243 F.3d 

1109, 1120, fn. 5.)

In United States v. Hubbell (2000) 530 U.S. 27 (Hubbell), the United States 

Supreme Court provided further direction as to what kinds of activity can constitute 

testimonial evidence. In Hubbell, the court held that compelling the defendant to produce 

potentially incriminating documents could violate the privilege against self-incrimination 

because in producing the documents, “[i]t was unquestionably necessary for respondent 
20

to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of 

documents responsive to the requests in the subpoena. [Citation.] The assembly of those 

documents was like telling an inquisitor the combination to a wall safe, not like being 

forced to surrender the key to a strongbox. [Citation.]” (Id. at p. 43.)

In United States v. Dionisio (1973) 410 U.S. 1 (Dionisio), the United States 

Supreme Court held that compelling voice exemplars from the defendant did not violate 

his privilege against compulsory self-incrimination. (Id. at p. 5.) The court noted: “It 

has long been held that the compelled display of identifiable physical characteristics 

infringes no interest protected by the privilege against compulsory self-incrimination.” 

(Id. at pp. 5–6.) The court stated: “The voice recordings were to be used solely to 

measure the physical properties of the witnesses’ voices, not for the testimonial or 

communicative content of what was to be said.” (Id. at p. 7, fn. omitted.) Similarly, in 

Schmerber v. California (1966) 384 U.S. 757 (Schmerber), the United States Supreme 

Court held that a compulsory blood draw did not violate the defendant’s privilege against 

compulsory self-incrimination. (Id. at p. 761.) The court distinguished between a 

suspect’s communications (which are protected by the Fifth Amendment), and actions 

such as “compulsion to submit to fingerprinting, photographing, or measurements, to 

write or speak for identification, to appear in court, to stand, to assume a stance, to walk, 

or to make a particular gesture,” which are not protected by the privilege against 

compulsory self-incrimination. (Schmerber, supra, at p. 764, fn. omitted.) The court 

held: “The distinction which has emerged, often expressed in different ways, is that the 

privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that 

compulsion which makes a suspect or accused the source of ‘real or physical evidence’ 

does not violate it.” (Id. at p. 764.) While the court noted that in some instances, this 

distinction might not comport with the intent of the Fifth Amendment, it nonetheless 

applied this distinction, holding that “[n]ot even a shadow of testimonial compulsion 
21

upon or enforced communication by the accused was involved either in the extraction or 

in the chemical analysis.” (Schmerber, supra, at p. 765.)

In Fisher v. United States (1976) 425 U.S. 391 (Fisher), the United States 

Supreme Court recognized that while the compelled production of taxpayer records could 

implicate the privilege against compulsory self-incrimination, under the facts of the case 

before it, “however incriminating the contents of the accountant’s workpapers might be, 

the act of producing them – the only thing which the taxpayer is compelled to do – would 

not itself involve testimonial self-incrimination.” (Id. at pp. 410–411.) The court held: 

“It is doubtful that implicitly admitting the existence and possession of the papers rises to 

the level of testimony within the protection of the Fifth Amendment. The papers belong 

to the accountant, were prepared by him, and are the kind usually prepared by an 

accountant working on the tax returns of his [or her] client. Surely the Government is in 

no way relying on the ‘truthtelling’ of the taxpayer to prove the existence of or his [or 

her] access to the documents. [Citation.] The existence and location of the papers are a 

foregone conclusion and the taxpayer adds little or nothing to the sum total of the 

Government’s information by conceding that he [or she] in fact has the papers. Under 

these circumstances by enforcement of the summons ‘no constitutional rights are 

touched. The question is not of testimony but of surrender.’ [Citation.]” (Id. at p. 411.)

In such a situation, the Fisher court held, a defendant’s “Fifth Amendment 

privilege is not violated because nothing he [or she] has said or done is deemed to be 

sufficiently testimonial for purposes of the privilege.” (Fisher, supra, 425 U.S. at 

p. 411.) The court also observed that the production of the accountant’s papers had no 

significant testimonial significance, holding that “we are quite unprepared to hold that 

either the fact of existence of the papers or of their possession by the taxpayer poses any 

realistic threat of incrimination to the taxpayer.” (Id. at p. 412.) The court also 

discounted the defendant’s argument that producing the tax records would authenticate 

the documents, stating: “[P]roduction would express nothing more than the taxpayer’s 
22

belief that the papers are those described in the subpoena. The taxpayer would be no 

more competent to authenticate the accountant’s workpapers or reports by producing 

them than he would be to authenticate them if testifying orally. The taxpayer did not 

prepare the papers and could not vouch for their accuracy. The documents would not be 

admissible in evidence against the taxpayer without authenticating testimony. Without 

more, responding to the subpoena in the circumstances before us would not appear to 

represent a substantial threat of self-incrimination.” (Id. at pp. 412–413, fn. omitted.) 

Thus, the court held, “compliance with a summons directing the taxpayer to produce the 

accountant’s documents involved in these cases would involve no incriminating 

testimony within the protection of the Fifth Amendment.” (Id. at p. 414.)

Based on Fisher, federal appeals courts have defined when the “foregone 

conclusion doctrine” applies such that the Fifth Amendment privilege against compulsory 

self-incrimination is not implicated. For example, the Second Circuit Court of Appeals in 

United States v. Greenfield (2nd Cir. 2016) 831 F.3d 106 (Greenfield), held that the 

prosecution must establish “ ‘with reasonable particularity’ ” that it knew of the existence 

and control of the compelled evidence for the foregone conclusion doctrine to apply. (Id.

at p. 116.) In In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 (11th Cir. 

2012) 670 F.3d 1335, the Eleventh Circuit Court of Appeals held: “Where the location, 

existence, and authenticity of the purported evidence is known with reasonable 

particularity, the contents of the individual’s mind are not used against him [or her], and 

therefore no Fifth Amendment protection is available.” (Id. at p. 1344, fn. omitted.) The 

Ninth Circuit Court of Appeals has held that the foregone conclusion doctrine “allows for 

circumvention of the self-incrimination privilege if the government already has the 

information it is seeking to compel. [Citation.]” (United States v. Oriho (9th Cir. 2020) 

969 F.3d 917, 927 (Oriho).) The Ninth Circuit held: “For this ‘exception to apply, the 

government must establish its independent knowledge of three elements: the documents’ 
23

existence, the documents’ authenticity and [the defendant’s] possession or control of the 

documents.’ [Citation.]” (Ibid.)

In determining whether a defendant’s privilege against compulsory selfincrimination has been violated, “[w]e review deferentially the trial court’s resolution of 

any factual disputes. [Citation.]” (People v. Seijas (2005) 36 Cal.4th 291, 304.) 

However, where the facts are undisputed, we review independently the trial court’s 

conclusion that a defendant’s privilege against compulsory self-incrimination was not 

violated. (Ibid.)

2. Analysis

The defense’s motion to suppress the evidence from defendant’s phone alleged 

that the compelled use of defendant’s finger to unlock the phone violated his privilege 

against compulsory self-incrimination because his act of providing his fingerprint 

constituted a testimonial communication. The trial court’s ruling rejected this argument, 

concluding that the use of defendant’s fingerprint was not a testimonial communication 

or act. The trial court stated: “The seizure of a finger in itself does not reveal the 

contents of the person’s mind in the way that disclosure of a pass code would or in the 

way that disclosure of a cryptography key to decrypt encrypted data would compel 

someone to reveal a specific pass code or to reveal information on how to decrypt data is 

compelling testimony from that person. But obtaining information from a person’s mind 

is not what happens when agents pick a finger to apply to the sensor under the screen of a 

cellphone. [¶] To be clear, there is no revelation of the contents of the defendant’s mind 

with the procedure utilized by the officers in this case for the use of the defendant’s 

fingerprint. [¶] Instead, the officers chose the finger to apply to the sensor on the 

cellphone screen and obtained the physical characteristics without the need for the 

defendant to put any thought at all into the seizure. [¶] Thus, the use of the defendant’s 

fingerprint is much more like the compelled use of other physical characteristics of 

criminal suspects that Courts have found non-testimonial, even when they are used for 
24

investigatory purposes rather than solely for [i]dentification. [¶] Compelling physical 

access to information via the fingerprint seizure is also not different from requiring 

someone to surrender a key to a safe whose contents otherwise would not be accessible to 

the government. [¶] The surrender of the key may be compelled, but the compelling of 

the safe’s combination is forbidden. . . . [¶] The Fifth Amendment privilege was not 

triggered in this matter because the officers merely compelled the physical act and the 

defendant was not called upon to make use of the contents of his mind.”

Additionally, the trial court concluded that the Fifth Amendment privilege against 

compelled self-incrimination was not violated because the act of using defendant’s 

fingerprint was not testimonial under the foregone conclusion doctrine. The trial court 

concluded that the prosecution in defendant’s case “can show with reasonable 

particularly that at the time the officer sought to compel the act of production with both 

warrants, they already knew of the photographs or video, thereby making any testimonial 

aspect a foregone conclusion.” The trial court ruled: “The officers in this matter knew of 

the existence of the photographs in the defendant’s cellphone, knew that the defendant 

possessed the cellphone that was used to photograph Jane Doe 1, and could establish 

authenticity not through the use of the defendant’s mind, but rather through testimony 

from others. [¶] The existence, location and authenticity of [the] requested materials in 

this case were foregone conclusions.”

The parties have identified no United States Supreme Court or California 

decisions holding whether the compelled use of a suspect’s fingerprint amounts to selfincrimination. However, decisions from other jurisdictions have addressed this issue.

In State v. Diamond (Minn. 2018) 905 N.W.2d 870 (Diamond), the Supreme Court 

of Minnesota held that no violation of the defendant’s Fifth Amendment privilege against 

compulsory self-incrimination occurred when police compelled the defendant to unlock 

his seized cell phone with his fingerprint. (Diamond, supra, at p. 878.) The court 

distinguished the United States Supreme Court’s decision in Hubbell, supra, concluding: 
25

“Because we conclude that producing a fingerprint is more like exhibiting the body than 

producing documents, we hold that providing a fingerprint to unlock a cellphone is not a 

testimonial communication under the Fifth Amendment. The police compelled 

Diamond’s fingerprint for the fingerprint’s physical characteristics and not for any 

implicit testimony from the act of providing the fingerprint. [Citation.] Moreover, the 

fingerprint was physical evidence from Diamond’s body, not evidence of his mind’s 

thought processes. [Citation.]” (Diamond, supra, at p. 875.) The court cited two reasons 

in support of its conclusion. First, the court stated, “[T]he State compelled Diamond to 

provide his fingerprint only for the physical, identifying characteristics of Diamond’s 

fingerprint, not any communicative testimony inherent in providing the fingerprint. The 

State’s use of Diamond’s fingerprint was therefore like a ‘test’ to gather physical 

characteristics, akin to a blood sample, a voice exemplar, trying on clothing, or standing 

in a lineup, in an effort to unlock the cellphone. [Citations.]” (Id. at pp. 875–876.) 

Second, the court stated, “Diamond’s act of providing a fingerprint to the police was not 

testimonial because the act did not reveal the contents of Diamond’s mind. [Citations.]” 

(Id. at p. 876.) Thus, the court concluded, “Diamond merely provided his fingerprint so 

that the police could use the physical characteristics of the fingerprint to unlock the 

cellphone. The compelled act did not require Diamond to ‘submit to testing in which an 

effort [was] made to determine his guilt or innocence on the basis of physiological 

responses, whether willed or not.’ [Citation.] To the extent that providing a fingerprint 

to unlock a cellphone might require a mental process to unlock the phone, the police did 

not need to rely on that mental process here. [Citation.] Diamond did not need to selfselect the finger that unlocked the phone. He did not even need to be conscious. 

Diamond could have provided all of his fingerprints to the police by making his hands 

available to them, and the police could have used each finger to try and unlock the 

cellphone.” (Id. at p. 877, fns. omitted.) Thus, the court held that this situation was more 

like that in Dionisio and Schmerber than Hubbell. (Diamond, supra, at p. 875.)
26

Several decisions by other courts have similarly held that the compelled use of 

a defendant’s fingerprint to unlock a phone does not constitute a testimonial act, and 

therefore that no Fifth Amendment violation occurs in this situation. (United States v. 

Barrera (N.D.Ill. 2019) 415 F.Supp.3d 832, 833 (Barrera) [“[T]his Court holds that 

compelling an individual to scan their biometrics, and in particular their fingerprints, to 

unlock a smartphone device neither violates the Fourth nor Fifth Amendment”]; In re 

Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case (D.Idaho 2019) 

398 F.Supp.3d 785, 793–794, fns. omitted [“Where, as here, the Government agents will 

pick the fingers to be pressed on the Touch ID sensor, there is no need to engage the 

thought process of the subject at all in effectuating the seizure. . . . Accordingly, the 

Court determines—in accordance with a majority of Courts that have weighed in on this 

issue—that the requested warrant would not violate the Fifth Amendment because it does 

not require the suspect to provide any testimonial evidence”]; In the Matter of the Search 

of [Redacted] Washington, D.C. (D.D.C. 2018) 317 F.Supp.3d 523, 535 [no Fifth 

Amendment violation because “the compelled use of the Subject’s biometric features is 

far more akin to the surrender of a safe’s key than its combination” (fn. omitted)]; In the 

Matter of the Search Warrant Application for [Redacted] (N.D.Ill. 2017) 279 F.Supp.3d 

800, 801 [“requiring the application of the fingerprints to the sensor does not run afoul of 

the self-incrimination privilege because that act does not qualify as a testimonial 

communication”]; Commonwealth v. Baust (Va.Cir.Ct., Oct. 28, 2014, No. CR14-1439), 

2014 Va.Cir. Lexis 93, pp. *9–10 [“The fingerprint like a key . . . does not require the 

witness to divulge anything through his mental processes. On the contrary, like physical 

characteristics that are non-testimonial, the fingerprint of Defendant if used to access his 

phone is likewise non-testimonial and does not require Defendant to ‘communicate any 

knowledge’ at all”].)

We agree with the decisions from other jurisdictions that hold that compelling a 

suspect to place his or her a finger on a phone does not constitute a testimonial act. 
27

Therefore, under the facts of the instant matter, the act of compelling defendant to place 

his fingers on the phone to unlock it did not violate defendant’s privilege against 

compulsory self-incrimination. Defendant was not asked to communicate anything –

verbally or otherwise – in the act of placing his fingers on the phone. Law enforcement 

used defendant’s fingerprint solely for its physical characteristics as a biometric key to 

unlock the phone, not for any implicit testimony from defendant’s act of providing his 

fingerprint. Defendant was not asked to produce any evidence of his mental process, 

particularly because Gonzalez selected the finger(s) to be used in unlocking the phone. 

As in Diamond, defendant did not self-select the finger to be used to unlock the phone; 

he did not even need to be conscious for law enforcement to obtain his fingerprint and 

unlock the phone. Defendant was thus not asked to engage in any thought process in 

unlocking the phone. He merely provided his physical characteristic – a fingerprint – that 

served as the key to the strongbox that was defendant’s phone. The actions by law 

enforcement in compelling defendant to place his finger on the phone were functionally 

equivalent to the gathering of other physical characteristics that do not present selfincrimination concerns, such as blood samples or fingerprints (Schmerber) or voice 

exemplars (Dionisio). Law enforcement sought defendant’s finger merely as a 

mechanism to unlock the phone, not for any testimonial communication that might be 

implicit in this action.

Defendant nonetheless argues that his act in producing his fingerprint to unlock 

the phone had some testimonial nature. Specifically, he asserts that his use of his finger 

to unlock the phone communicated that “he had previously accessed the phone and had

some level of control over the phone and its contents.” However, any marginal 

communication implicit in defendant’s act concerning his access to and control over the 

phone was already known by law enforcement. Jane Doe 1 identified that defendant used 

a phone to capture his sexual abuse of her. Jane Doe 1 reported defendant’s action to her 

mother on August 5, 2018, the day following the sleepover. Jane Doe 1’s mother 
28

promptly reported this to law enforcement, and law enforcement seized defendant’s 

phone on August 24, 2018, less than three weeks after defendant used it in his crimes. 

When police stopped defendant, he only had one phone in his possession. Gonzalez 

called the phone number Jane Doe 1’s mother had provided him for defendant, and 

defendant’s phone rang. In addition, by the time of the second use of defendant’s 

fingerprint, Gonzalez had already reviewed the contents of the phone and had verified 

defendant’s access to and control over the phone by reviewing some of its contents. 

Thus, defendant’s access to and control over the phone was well established apart from 

any communication along these lines implicit in defendant placing his finger on the 

phone to unlock it.

Defendant argues that the foregone conclusion doctrine should not apply because 

“the officers did not anticipate finding the photographs and video of other young girls, 

which were introduced into evidence at trial and did not feature Doe 1.” However, 

defendant fails to identify any testimony his fingerprint produced in this regard. 

Defendant’s act of producing his finger to unlock the phone conveyed no testimony 

about the contents of the phone. The fact that officer discovered sexual images of young 

girls on the phone is a result of the physical search of the phone, not any communication 

implicit in defendant’s act of placing his finger against the phone’s screen. At most, 

the use of defendant’s finger merely confirmed what law enforcement officials already 

knew – that defendant had access to and control over the phone.

As the trial court found: “The officers in this matter knew of the existence of the 

photographs in the defendant’s cellphone, knew that the defendant possessed the 

cellphone that was used to photograph Jane Doe 1, and could establish authenticity not 

through the use of the defendant’s mind, but rather through testimony from others. [¶] 

The existence, location and authenticity of requested materials in this case were foregone 

conclusions.” In this situation, law enforcement was “in no way relying on the 

‘truthtelling’ ” of defendant to prove his access to and control over the phone. (Fisher, 
29

supra, 425 U.S. at p. 411.) The prosecution established “ ‘with reasonable 

particularity’ ” that it knew of defendant’s access to and control over the phone, and thus 

defendant’s act of producing his finger did not produce any testimonial evidence that law 

enforcement did not already establish as a foregone conclusion. (Greenfield, supra, 

831 F.3d at p. 116.) Even assuming defendant’s act of producing his finger to unlock 

the phone had some marginal testimonial quality, the prosecution demonstrated that law 

enforcement “already ha[d] the information it [was] seeking to compel,” and thus the 

foregone conclusion doctrine applies. (Oriho, supra, 969 F.3d at p. 927.)

Defendant cites two decisions in support of his position that his compelled act 

of placing his finger to the phone to unlock the device was testimonial. Both are 

distinguishable. First, in In re Application for a Search Warrant (N.D.Ill. 2017) 

236 F.Supp.3d 1066 (In re Application), the government sought a warrant “to compel 

any individual who is present at the subject premises at the time of the search to provide 

his fingerprints and/or thumbprints ‘onto the Touch ID sensor of any Apple iPhone, iPad, 

or other Apple brand device in order to gain access to the contents of any such device.’ ” 

(Id. at p. 1067.) The court denied this aspect of the search warrant, noting that factual 

deficiencies concerning the lack of detailed information about the resident(s) of the 

premises were “important for purposes of the Fourth and Fifth Amendment issues 

presented by this case.” (Id. at p. 1068.) Where “the request is made without any 

specific facts as to who is involved in the criminal conduct linked to the subject premises, 

or specific facts as to what particular Apple-branded encrypted device is being employed 

(if any),” the court held that the aspect of the warrant application seeking to compel any 

person at the premises to produce their fingerprint to unlock a device lacked probable 

cause under the Fourth Amendment. (In re Application, supra, at p. 1068.) The court 

then stated that “in addition to the Fourth Amendment concerns articulated above, the 

Court believes that the government’s warrant application raises concerns under the Fifth 

Amendment’s protection prohibiting compelled self-incrimination.” (Id. at p. 1070.) 
30

The court stated: “The government is generally correct that the production of physical 

characteristics generally do not raise Fifth Amendment concerns. [Citations.]” (Ibid.) 

However, under the facts of the instant case, the court held that “the connection of the 

fingerprint to the electronic source that may hold contraband . . . does ‘explicitly or 

implicitly relate a factual assertion or disclose information.’ [Citation.]” (Id. at p. 1073.) 

The court stated: “By using a finger to unlock a phone’s contents, a suspect is producing

the contents on the phone. With a touch of a finger, a suspect is testifying that he or she 

has accessed the phone before, at a minimum, to set up the fingerprint password 

capabilities, and that he or she currently has some level of control over or relatively 

significant connection to the phone and its contents.” (Ibid.) Thus, the court concluded 

that “the Court does not find, under the circumstances presented here, that the 

government has established a proper basis to force any individual at the subject premises 

to provide a fingerprint or thumbprint in an attempt to unlock any Apple device that may 

be found.” (Id. at p. 1074.)

In re Application is based on significantly different facts from the instant case, and 

thus we find it not persuasive as applied to the instant matter. In re Application dealt 

with a warrant application to have any residents present at the premises place their fingers 

on any Apple devices found on the scene. The court noted a lack of particularity to as to 

which residents were suspected to be involved in the criminal conduct linked to the 

premises, and what particular device(s) were suspected to be employed. In the situation 

before it, the court focused much of its analysis on its Fourth Amendment concerns, only 

secondarily addressing the Fifth Amendment issue. With regard to its Fifth Amendment 

analysis, the court stated that a suspect’s act of unlocking a phone with his or her 

fingerprint could communicate access to and control over the device, and thus this act 

could present a concern about compulsory self-incrimination. As we have stated, no such 

concerns are present here, where defendant was the only person compelled to produce his 

fingerprint and his access to and control over the device were foregone conclusions. The 
31

court in In re Application indicated that under different facts, the Fifth Amendment 

concern it articulated might not be present. The court stated that “[i]n circumstances 

where the existence and nature of the electronic information sought is a ‘foregone 

conclusion,’ Fifth Amendment jurisprudence tells us that the concerns noted above may 

be obviated.” (In re Application, supra, 236 F.Supp.3d at p. 1074.) The court noted: 

“Indeed, after the execution of this warrant, the government may garner additional

evidence that addresses both of these concerns such that the government can promptly 

apply for additional search warrants. We simply are not there yet.” (Ibid.) Here, unlike 

in In re Application, law enforcement had firmly established defendant’s access to and 

ownership of the phone, and defendant’s act of unlocking the phone with his finger 

provided no testimonial evidence that raises a self-incrimination concern. In re 

Application therefore does not indicate that defendant’s act was testimonial.

The second case defendant cites, In the Matter of the Search of Residence in 

Oakland, California (N.D.Cal. 2019) 354 F.Supp.3d 1010 (Matter of Residence), is 

similarly distinguishable. In Matter of Residence, the government applied for and 

received a warrant to seize various items including cell phones. (Id. at p. 1013.) 

However, the court denied the application for a warrant “to compel any individual present 

at the time of the search to press a finger (including a thumb) or utilize other biometric 

features, such as facial or iris recognition, for the purposes of unlocking the digital 

devices found in order to permit a search of the contents as authorized by the search 

warrant.” (Ibid.) The court first found that under the Fourth Amendment, probable cause 

did not exist to support the biometric aspect of the warrant application and that the 

application was overbroad because two suspects were identified but the request was not 

limited to a particular person or a particular device. (Matter of Residence, supra, at 

p. 1014.) The court then found that the proposed compelled use of fingerprints to unlock 

items was testimonial, for two reasons. First, the court stated that “biometric features 

serve the same purpose of a passcode, which is to secure the owner’s content, 
32

pragmatically rendering them functionally equivalent.” (Id. at p. 1015.) The court held 

that “if a person cannot be compelled to provide a passcode because it is a testimonial 

communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, 

or other biometric feature to unlock that same device.” (Id. at p. 1016.) Second, the 

court stated that “requiring someone to affix their finger or thumb to a digital device is 

fundamentally different than requiring a suspect to submit to fingerprinting,” because 

“the act concedes that the phone was in the possession and control of the suspect, and 

authenticates ownership or access to the phone and all of its digital contents.” (Ibid.) 

The court then held that the foregone conclusion doctrine did not apply because under 

Riley, supra, cell phones are subject to “different treatment than more traditional storage 

devices,” and thus “the Government inherently lacks the requisite prior knowledge of the 

information and documents that could be obtained via a search of these unknown digital 

devices, such that it would not be a question of mere surrender. [Citation.]” (Matter of 

Residence, supra, at pp. 1017, 1018.) In addition, the court found that the foregone 

conclusion doctrine did not apply because “the Government would be unable to articulate 

facts to compel the unlocking of devices using biometric features by unknown persons 

the Government could not possibly anticipate being present during the execution of the 

search warrant.” (Id. at p. 1018.)

Matter of Residence’s holding was based on different facts than those presented 

in the instant case. In Matter of Residence, the warrant application sought authority to 

compel “any individual present” to produce a fingerprint to unlock any digital devices 

found. (Matter of Residence, supra, 354 F.Supp.3d at p. 1013.) Under these facts, the 

court found that a Fifth Amendment concern was presented and that the foregone 

conclusion did not apply. In the instant case, again, defendant was the only person 

compelled to produce his fingerprint, and he was compelled to do so for one cell phone. 

Jane Doe 1 had identified defendant as recently using this phone to capture the sexual 

abuse; Gonzalez verified the phone was defendant’s by calling the phone number 
33

provided for defendant; and Gonzalez’s first search of the phone further confirmed that 

defendant had access to and control over the phone. Under these facts, the concerns 

articulated in Matter of Residence are not present. Additionally, the fact that under Riley

cell phones are subject to different treatment than other storage devices does not alter the 

analysis. Defendant did not “communicate” the contents of his cell phone to law 

enforcement by providing his finger, any more than a suspect “communicates” by 

providing a key to a strongbox; in fact, defendant took no action whatsoever in the instant 

case. Instead of handing over a key, defendant remained passive while law enforcement 

tried each of defendant’s fingers until one unlocked the phone. The only possible 

communication implicit in defendant’s act of providing his fingerprint was that he had 

access to and control over the phone, matters that the prosecution established that law 

enforcement already knew. As the court in Barrera noted, Riley “did not address any 

Fifth Amendment concerns with respect to cell phones,” and Riley’s concerns about 

warrantless searches of cell phone data and the resulting invasion of privacy are properly 

addressed when the government seeks a warrant to search the phone. (Barrera, supra, 

415 F.Supp.3d at p. 842.) Post-Riley, established Fifth Amendment analysis remains 

intact with respect to accessing cell phones: “Just as letters were replaced with electronic 

mail and cassette tapes were replaced with digital music files, keys are being replaced 

with biometric functions. Consolidation and digitization, resulting in the carrying of the 

least amount of physical items as possible while holding the most amount of functionality 

and data, is de jure and here to stay. However, the applicable analysis — that a 

fingerprint has now replaced a key — does not automatically transform what has been 

previously considered non-testimonial into testimonial acts. The old tests, in this 

particular circumstance, remain relevant and applicable.” (Barrera, supra, at p. 842.)

Citing Matter of Residence, defendant argues that “it is illogical to conclude that 

forced disclosure of a spoken passcode has Fifth Amendment implications, but forced 

disclosure of a biometric one has none.” To the extent that Matter of Residence can be 
34

understood to state that a fingerprint to unlock a phone is testimonial simply because it is 

the functional equivalent of providing a passcode, we do not agree. Defendant’s act of 

providing his fingerprint to unlock his phone was not testimonial. The fact that phones 

can be unlocked through other, testimonial, means is not at issue here. As the trial court 

stated: “The seizure of a finger in itself does not reveal the contents of the person’s mind 

in the way that disclosure of a pass code would or in the way that disclosure of a 

cryptography key to decrypt encrypted data would compel someone to reveal a specific 

pass code or to reveal information on how to decrypt data is compelling testimony from 

that person. But obtaining information from a person’s mind is not what happens when 

agents pick a finger to apply to the sensor under the screen of a cellphone.” Regardless 

of any testimonial component of a suspect being compelled to provide a passcode, 

defendant’s provision of his fingerprint did not require him to divulge the contents of his 

mind under the facts of this case.

Defendant’s act of producing his fingerprint to unlock his phone did not constitute 

testimonial evidence under the facts of this case, as nothing about the act of providing his 

fingerprint called for defendant to utilize or disclose the contents of his mind. “[T]he 

privilege against self-incrimination is limited to the involuntary giving of testimonial or 

communicative evidence. It does not extend, as here, to ‘real or physical’ evidence 

extracted under compulsion. [Citations.]” (People v. Scott (1978) 21 Cal.3d 284, 291.) 

Even if defendant engaged in some marginal implicit communication by providing his 

fingerprint to unlock his phone, the fact that defendant had access to and control over 

the phone at issue was a foregone conclusion. Because defendant’s act was nontestimonial, no concern regarding compulsory self-incrimination is present. Therefore, 

the trial court did not err in denying defendant’s motion to suppress on this basis. (Doe, 

supra, 487 U.S. at p. 210.)
35

C. Use of Defendant’s Finger to Unlock Phone – Due Process

Defendant next contends that the compelled use of his fingerprint to unlock the 

phone violated his due process rights under the Fifth and Fourteenth Amendments to the 

United States Constitution and under article I, section 7 of the California Constitution. 

He argues: “[W]here Gonzalez grabbed [defendant’s] hand and forced his finger onto his 

phone, while [defendant] objected and asked for an attorney, [defendant’s] will was 

overcome. His testimony, resulting from him opening the phone, that he had previously 

accessed the phone and had some level of control over the phone and its contents, was 

not voluntary. Additionally, [defendant] was told by the officers that they were ‘going to 

get your thumbprint on that phone whether you like it or not,’ and that he could ‘do it and 

get it over with’ or ‘it’s not going to be fun.’ [Citation.] These threats also had the effect 

of rendering [defendant’s] testimony involuntary. As a result, defendant’s right to due 

process was violated when the officers forced the use of his biometric data.” We find no 

due process violation in the actions of Gonzalez and other law enforcement officials.

1. Legal Principles and Standard of Review

“An involuntary confession . . . is inadmissible under the due process clauses of 

both the Fourteenth Amendment [citation] and article I, sections 7 and 15 [of the 

California Constitution] [citations].” (People v. Benson (1990) 52 Cal.3d 754, 778.) 

“Involuntary statements to police are inadmissible for all purposes. [Citation.] 

Statements are involuntary when they are not the product of ‘ “ ‘a rational intellect and 

free will.’ ” ’ [Citations.] To use a defendant’s statements to police at trial, the 

prosecutor must prove by a preponderance of the evidence that they were voluntary. 

[Citation.] On appeal, the voluntariness of the statements ‘is reviewed independently in 

light of the record in its entirety, including “all the surrounding circumstances—both the 

characteristics of the accused and the details of the interrogation.” ’ [Citation.] We 

‘ “ ‘examine the uncontradicted facts surrounding the making of the statements to 

determine independently whether the prosecution met its burden.’ ” ’ [Citation.]” 
36

(People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 20.) “ ‘[C]oercive police activity is a 

necessary predicate to the finding that a confession is not “voluntary” . . . .’ [Citation.]” 

(Ibid.) “If coercive police conduct is present, we evaluate the totality of the 

circumstances to determine whether a defendant’s statements were freely given. 

[Citation.]” (Ibid.)

2. Analysis

At trial, defendant’s motion to suppress asserted that compelling him to provide 

his finger to unlock the phone violated his due process rights because his “will was 

overborne by the use of physical force” to unlock the phone. His motion asserted: 

“Physical force was used in this case to overbear [defendant’s] will and elicit an 

incriminating statement. In the present case Detective Gonzalez literally grabbed 

[defendant’s] hands and fingers against his will and forced his hand onto the phone, while 

[defendant] repeatedly objected and requested an attorney. As such, any and all 

statements elicited therefrom and the fruits of search of the cellphone that followed must 

be suppressed on state and federal Due Process grounds.”

The trial court denied this aspect of the motion to suppress, concluding: “Here the 

force used was grabbing the defendant’s hand and applying each finger to the sensor on 

the cellphone screen. [¶] The force used in applying the defendant’s fingers to the 

cellphone was reasonable. The defendant was not restrained and he was not forced to 

experience any forceful control holds to gain compliance. [¶] [Defendant] slightly pulled 

his hand back. Detective Gonzalez asked him to not pull away. [Defendant] 

subsequently complied. [¶] [Defendant] was ordered a second time to give the officers 

his hand again. Then Detective Gonzalez guided the defendant’s fingers to the phone 

one by one. [¶] Nothing in the -- nothing that the officers did resulted in any injury to 

[defendant].” The trial court ruled that detectives used “minimal” force to secure 

defendant’s fingerprint, that they did not threaten defendant’s health or safety, that they 
37

did not use deception, and that any affront to defendant’s privacy was minimal when 

compared other permissible uses of force such as bodily intrusion searches.

Defendant’s due process argument relies on his assertion that his act of placing his 

finger on the phone constituted a testimonial act, an assertion we have already rejected in 

defendant’s claim of compulsory self-incrimination. The basis for his due process 

argument is that his “testimony, resulting from him opening the phone, that he had 

previously accessed the phone and had some level of control over the phone and its 

contents, was not voluntary.” However, the only testimony defendant identifies in his act 

of placing his finger on the phone consists of an acknowledgement that he had access to 

and ownership of the phone. This was not disputed, and the prosecution introduced no 

evidence and made no argument at trial that defendant’s act of unlocking the phone 

demonstrated his access to or control over the phone. In fact, Gonzalez did not even 

explicitly mention in his testimony at trial that defendant’s finger unlocked the phone. 

Thus, even if defendant’s act of unlocking the phone with his finger had some testimonial 

aspect, any such testimony or confession was not introduced at trial.

In addition, as the trial court noted, even though defendant’s act of placing the 

finger on the phone was not voluntary, the physical force Gonzalez used to effect the 

unlocking of the phone was minimal and reasonable. In performing a search or seizure 

of a person, law enforcement “may not use unreasonable force to perform a search or 

seizure of a person.” (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078.) While 

defendant objected to the use of his fingerprint, the only actual force Gonzalez used was 

to take defendant’s hand and move it to the phone. As the trial court stated, a due process 

violation does not necessarily occur when law enforcement effects a compulsory blood 

draw from a suspect. (Schmerber, supra, 384 U.S. at p. 760.) “Law enforcement must 

act reasonably and use only that degree of force which is necessary to overcome a 

defendant’s resistance in taking a blood sample. Even where necessary to obtain a blood 

sample police may not act in a manner which will ‘shock the conscience.’ ” (Carleton v. 
38

Superior Court (1985) 170 Cal.App.3d 1182, 1187–1188, fn. omitted.) Placing 

defendant’s finger against his phone was less intrusive than a compulsory blood draw, 

and defendant points to no evidence that indicates law enforcement’s actions in guiding 

his finger to the phone shocks the conscience or constituted force beyond that which was 

necessary to overcome defendant’s resistance. Thus, we see no due process violation in 

the actions by law enforcement to compel defendant to provide his fingerprint to unlock 

the phone.

D. Use of Defendant’s Finger to Unlock Phone – Ineffective Assistance of 

Counsel

Finally on the issue of the use of defendant’s finger to unlock his phone, defendant 

contends that “defense counsel failed to argue specifically why the contents of 

[defendant’s] phone and his testimony in opening the phone should have been excluded 

due to violations of the Fourth and Fifth Amendment and his right to due process.” 

Relatedly, defendant asserts that his trial counsel failed to cite cases that supported his 

argument that the act of producing his finger to unlock the phone constituted compelled 

self-incrimination. Thus, he asserts that he received constitutionally ineffective 

assistance of counsel.

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

establish both that his or her counsel’s performance was deficient and that the deficient 

performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687 

(Strickland).) The deficient performance component of an ineffective assistance of 

counsel claim requires a showing that “counsel’s representation fell below an objective 

standard of reasonableness” under prevailing professional norms. (Id. at p. 688.) 

“Unless a defendant establishes the contrary, we shall presume that ‘counsel’s 

performance fell within the wide range of professional competence and that counsel’s 

actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.]” 

(People v. Ledesma (2006) 39 Cal.4th 641, 746.)
39

“On direct appeal, a conviction will be reversed for ineffective assistance only if 

(1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]” 

(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) “[W]e begin with the presumption 

that counsel’s actions fall within the broad range of reasonableness, and afford ‘great 

deference to counsel’s tactical decisions.’ [Citation.] Accordingly, we have 

characterized [a] defendant’s burden as ‘difficult to carry on direct appeal,’ as a 

reviewing court will reverse a conviction based on ineffective assistance of counsel on 

direct appeal only if there is affirmative evidence that counsel had ‘ “ ‘no rational tactical 

purpose’ ” ’ for an action or omission. [Citation.]” (People v. Mickel (2016) 2 Cal.5th 

181, 198 (Mickel).)

Regarding prejudice, “[t]he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) 

“A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply 

speculation.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241 

(Fairbank).)

“[T]here is no reason for a court deciding an ineffective assistance claim to 

approach the inquiry in the same order or even to address both components of the inquiry 

if the defendant makes an insufficient showing on one. In particular, a court need not 

determine whether counsel’s performance was deficient before examining the prejudice 

suffered by the defendant as a result of the alleged deficiencies. The object of an 

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of 
40

an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect 

will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)

Defendant’s trial counsel fully briefed and argued to the trial court the issues 

concerning the use of defendant’s finger to unlock the phone. Trial counsel asserted to 

the trial court that the compelled use of defendant’s finger to unlock the phone 

constituted violations of the Fourth Amendment, the privilege against self-incrimination, 

and defendant’s right to due process. Defendant has had the opportunity to fully raise 

these issues to this court. We have reviewed defendant’s issues concerning the accessing 

of his cell phone and have concluded that the trial court did not err in denying 

defendant’s motion to suppress the evidence recovered from the phone. Because of this, 

defendant cannot show that but for any errors made by his trial counsel, the result of his 

proceedings would have been different. Defendant cannot demonstrate prejudice, and as 

a result, his claim of ineffective assistance of counsel fails. (Strickland, supra, 466 U.S. 

at p. 694.)

E. Expert Testimony on Behavior by Child Sexual Abuse Victims

In discussing the parties’ motions concerning testimony by Dr. Urquiza, the 

prosecution’s expert on the psychological effects of child sexual abuse, the prosecutor 

asserted: “[W]e are asking to present the testimony not for the purposes of establishing a 

child abuse accommodation syndrome, but simply to dispel some of the myths and 

misconceptions regarding how victims of sexual assault typically -- how children victims 

of sexual assault react upon being assaulted.” The prosecutor then identified several 

misconceptions that the prosecution expert would dispel, misconceptions the prosecutor 

asserted would be relevant as to Jane Does 1 through 4. In response, defense counsel 

acknowledged that the type of testimony the prosecutor referred to was generally 

admissible, and defense counsel noted that the prosecution’s expert was not going to 

testify as to the facts of this case, so defense counsel asked the trial court to limit 

testimony to the areas the prosecutor identified and to provide a limiting instruction. 
41

The trial court asked defense counsel to clarify whether he had any objection to the 

expert concerning the areas the prosecutor identified, and defense counsel confirmed he 

did not, stating: “I believe both based on my legal research and understanding of the law 

that those matters are permitted by case law in the State of California.” The trial court 

agreed that the expert could testify to the matters the prosecutor identified, ruling: 

“[E]vidence about the victim’s behavior and disabusing the myths that are associated 

with those particular myths that have just been addressed here specifically on the record 

will be permitted in the People’s case-in-chief if the victim’s credibility is placed in issue 

due to the paradoxical behavior.”

At the conclusion of defendant’s trial, the defense moved for a new trial based 

on the admission of Dr. Urquiza’s testimony. Defense counsel acknowledged that 

Dr. Urquiza “was permitted to testify in, admittedly, a limited fashion.” However, 

defense counsel asserted that Dr. Urquiza’s testimony “in a practical sense tends to be 

vouching for the credibility of witnesses.” The prosecution responded that Dr. Urquiza’s 

testimony was limited and Dr. Urquiza did not “vouch for any of the credibility of the 

witnesses.” The trial court denied defendant’s request for a new trial in this regard, 

identifying several misconceptions about how a child might react to sexual abuse that 

Dr. Urquiza’s testimony helped to dispel. The trial court observed: “Dr. Urquiza did not 

render an opinion of whether a molestation occurred. During his testimony, he made it 

clear that he was not expressing any opinion concerning the specific events in the case.” 

The trial court also noted that it instructed the jury to consider Dr. Urquiza’s testimony 

only for the limited purpose of deciding whether the conduct of Jane Does 1 through 4 

was not inconsistent with the conduct of someone who has been molested and in 

evaluating the believability of their testimony.

On appeal, defendant contends that the trial court abused its discretion in 

admitting Dr. Urquiza’s testimony because the testimony constituted child sexual abuse 

accommodation syndrome (CSAAS) evidence, evidence defendant asserts “cannot 
42

possibly be limited to dispelling myths surrounding child sexual abuse.” Defendant 

asserts that “the jury cannot possibly avoid using CSAAS to support whatever version 

of events the victim in any given case describes,” because “[u]nder CSAAS, any 

conceivable behavior is a behavior consistent with a child abuse victim.” Thus, he 

argues, “in every case, the jury will only use CSAAS testimony as evidence that the 

victim’s allegations must be true and that the defendant must be guilty.”

1. Legal Principles and Standard of Review

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

common experience” and the opinion would assist the trier of fact. (Evid. Code, § 801,

subd. (a).) “ ‘When expert opinion is offered, much must be left to the trial court’s 

discretion.’ [Citation.] The trial court has broad discretion in deciding whether to admit 

or exclude expert testimony [citation], and its decision as to whether expert testimony 

meets the standard for admissibility is subject to review for abuse of discretion. 

[Citations.]” (People v. McDowell (2012) 54 Cal.4th 395, 426 (McDowell).)

“Trial courts may admit CSAAS evidence to disabuse jurors of five commonly 

held ‘myths’ or misconceptions about child sexual abuse. [Citation.] While CSAAS 

evidence is not relevant to prove the alleged sexual abuse occurred, it is well established 

in California law CSAAS evidence is relevant for the limited purpose of evaluating the 

credibility of an alleged child victim of sexual abuse. [Citations.]” (People v. Lapenias

(2021) 67 Cal.App.5th 162, 171 (Lapenias).) CSAAS evidence “is admissible solely for 

the purpose of showing that the victim’s reactions as demonstrated by the evidence are 

not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d 

385, 394.) “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.” (Ibid.) CSAAS evidence “is not admissible to prove 

that the complaining witness has in fact been sexually abused; it is admissible to 
43

rehabilitate such witness’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. [Citations.] ‘Such expert testimony is needed 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.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300–1301, fn. omitted 

(McAlpin).)

2. Analysis

Dr. Urquiza did not use the term “child sexual abuse accommodation syndrome” 

or “CSAAS” in his testimony. However, we assume without deciding for the purposes 

of this analysis that because Dr. Urquiza’s testimony was focused on dispelling myths or 

misconceptions about how child sexual abuse victims might be expected to act, his 

testimony was equivalent to CSAAS evidence.

The trial court determined Dr. Urquiza’s testimony was relevant to the extent the 

victims’ credibility was placed at issue. Defendant does not specifically challenge the 

trial court’s ruling in this regard, and we find no abuse of discretion in this ruling. 

Dr. Urquiza’s testimony provided relevant evidence to the jury in deciding whether each 

girl’s conduct was inconsistent with the conduct of someone who had been molested. For 

example, Dr. Urquiza testified about how victims of child sexual abuse react in various 

ways, how victims of child sexual abuse might not hate their abusers or might even seek 

them out, how child sexual abuse victims develop coping mechanisms to manage their 

feelings, how victims of child sexual abuse can delay disclosure of the abuse or disclose 

the abuse incrementally, and how such victims can have difficulty remembering details 

about the abuse. Therefore, the trial court did not abuse its discretion in concluding that 

the testimony involved a matter “beyond common experience” that would assist the jury. 

(Evid. Code, § 801, subd. (a).)
44

Defendant argues that CSAAS evidence should be generally inadmissible because 

it is unreliable and because, by its very nature, CSAAS evidence will always support the 

conclusion that abuse occurred because it suggests that both intuitive and counterintuitive 

behavior support an alleged victim’s credibility. He asserts that while “California has 

accepted the admissibility of CSAAS evidence, courts have acknowledged the inherent 

problems with such evidence,” citing cases largely from other jurisdictions. Defendant 

acknowledges that in McAlpin, the California Supreme Court held that CSAAS evidence 

could assist jurors by dispelling common misperceptions about victim behavior, and that 

this court is bound by the decisions of our Supreme Court. (McAlpin, supra, 53 Cal.3d at 

pp. 1300–1302.) However, defendant argues that McAlpin is “no longer an accurate 

reflection of current understandings of how children respond to abuse,” and that recent 

decisions from Courts of Appeal in this state applying McAlpin were wrongly decided. 

Defendant asserts that jurors are no longer likely to hold the misconceptions that CSAAS 

evidence addresses, and that the admission of CSAAS evidence deprived him of due 

process by permitting the jury to infer that Jane Does 1 through 4 were credible 

witnesses.

Our Supreme Court indicated in McAlpin that CSAAS expert testimony is 

admissible to disabuse jurors of commonly held misconceptions about child sexual abuse 

victims’ behavior and to explain seemingly contradictory behavior of a child sexual abuse 

victim. (McAlpin, supra, 53 Cal.3d at pp. 1300–1302.) The California Supreme Court’s 

decisions are binding on all lower courts in this state. (People v. Johnson (2012) 

53 Cal.4th 519, 527–528 (Johnson).) “CSAAS evidence has been admitted by the courts 

of this state since the 1991 McAlpin decision.” (People v. Munch (2020) 52 Cal.App.5th 

464, 468 (Munch).) “Further, reviewing courts have routinely held the admission of 

CSAAS evidence does not violate due process. [Citations.]” (Lapenias, supra, 

67 Cal.App.5th at p. 174.) Defendant’s references to decisions from other jurisdictions 

that reached a different position do not affect the binding nature of the McAlpin decision. 
45

The McAlpin decision “is binding on all lower courts in this state. [Citation.] That other 

jurisdictions may disagree with it does not change its impact on California cases. 

[Citation.]” (Munch, supra, at p. 468.) Accordingly, we adhere to precedent from our 

Supreme Court that CSAAS evidence is generally admissible for the limited purposes for 

which it was admitted in the instant case. We therefore find no abuse of discretion in the 

trial court’s admission of this evidence.3 (McDowell, supra, 54 Cal.4th at p. 426.)

Even if the trial court should have excluded Dr. Urquiza’s testimony, defendant 

was not prejudiced by the admission of the evidence. Jane Doe 1 timely reported the 

abuse, and her testimony was corroborated by the discovery of videos on defendant’s 

phone documenting the abuse. Jane Does 2 through 4 provided testimony that 

demonstrated common themes about defendant’s pattern of abuse, with each detailing 

similar types of abuse that defendant committed upon them during similar time frames at 

the same location. The prosecution also argued that defendant’s reaction to the mother of 

Jane Does 2 through 4 – in which he asked which girl reported him, said the complaint 

would harm his marriage to M., and offered to move out of town if the matter was

dropped – demonstrated his consciousness of guilt. The defense’s cross examination of 

Jane Does 1 through 4 did little to discredit their testimony. The prosecutor also did not 

discuss Dr. Urquiza’s testimony in her closing argument. The judge instructed the jury 

concerning the limited use for which Dr. Urquiza’s testimony could be considered, and 

we presume the jury generally understands and follows instructions. (People v. 

McKinnon (2011) 52 Cal.4th 610, 670.) This instruction stated in relevant part: 

“Dr. Urquiza’s testimony about the psychological effects of child sexual abuse and 

3 Defendant argues that the trial court’s admission of Dr. Urquiza’s testimony is 

reviewed de novo because the question presented is whether the trial court correctly 

construed the Evidence Code in admitting the evidence. Assuming without deciding that 

the de novo standard of review applies, our conclusion remains that the trial court did not 

err.
46

general myths and misconceptions is not evidence that the defendant committed any of 

the crimes charged against him or any conduct or crimes with which he was not charged. 

[¶] You may consider this evidence only in deciding whether or not the conduct of Jane 

Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, was not inconsistent with the conduct of 

someone who has been molested, and in evaluating the believability of their testimony.” 

Dr. Urquiza also testified that his testimony solely involved dispelling any 

misconceptions about how victims of child sexual abuse might be expected to react, not 

whether abuse actually occurred in this case. In this situation, even if the trial court 

improperly admitted Dr. Urquiza’s testimony, and even if the admission amounted to a 

violation of defendant’s due process rights, we find beyond a reasonable doubt that any 

error was harmless, and thus reversal is not warranted. (Chapman v. California (1967) 

386 U.S. 18, 24 (Chapman).)

F. Instruction Regarding Child Sexual Abuse Expert Testimony

Defendant contends that the trial court erred by using CALCRIM No. 1193 to 

instruct the jury regarding Dr. Urquiza’s testimony.4 Defendant argues that CALCRIM 

No. 1193 “does not inform the jurors that CSAAS assumes the truth of the complaining 

witnesses’ claims. It fails to instruct the jury that the evidence is relevant only to educate 

the jurors about how molested children may act in general. Instead, it tells the jurors they 

may consider the evidence in ‘evaluating [victims’] believability,’ ” which defendant 

asserts improperly invites the jury to consider CSAAS evidence to support an alleged 

4

In full, this instruction stated: “You have heard testimony from Dr. Anthony 

Urquiza regarding the psychological effects of child sexual abuse and general myths and 

misconceptions. [¶] Dr. Urquiza’s testimony about the psychological effects of child 

sexual abuse and general myths and misconceptions is not evidence that the defendant 

committed any of the crimes charged against him or any conduct or crimes with which he 

was not charged. [¶] You may consider this evidence only in deciding whether or not the 

conduct of Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, was not inconsistent 

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

of their testimony.”
47

victim’s allegations against a defendant. As a result, defendant asserts that the trial court 

erred in using CALCRIM No. 1193, and that the alleged error deprived him of his due 

process right under the Fourteenth Amendment to the United States Constitution.

1. Legal Principles and Standard of Review

“A claim of instructional error is reviewed de novo. [Citation.] An appellate court 

reviews the wording of a jury instruction de novo and assesses whether the instruction 

accurately states the law. [Citation.]” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)

“A jury instruction may ‘ “so infuse[] the trial with unfairness as to deny due 

process of law.” ’ [Citation.] However, ‘ “not every ambiguity, inconsistency, or 

deficiency in a jury instruction rises to the level of a due process violation. The question 

is ‘ “whether the ailing instruction . . . so infected the entire trial that the resulting 

conviction violates due process.” ’ ” ’ [Citations.] ‘ “It is well established that the 

instruction ‘may not be judged in artificial isolation,’ but must be considered in the 

context of the instructions as a whole and the trial record.” ’ [Citations.] ‘ “If the charge 

as a whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that 

the jury has applied the challenged instruction in a way” that violates the 

Constitution.’ ” ’ [Citation.]” (People v. Lemcke (2021) 11 Cal.5th 644, 655.)

2. Analysis

As with the previous issue, we assume without deciding for the purposes of this 

analysis that Dr. Urquiza’s testimony was equivalent to CSAAS evidence.

Defendant did not object to CALCRIM No. 1193 at trial. In fact, defense 

counsel’s trial brief listed CALCRIM No. 1193 as one of the defense’s proposed 

instructions. At trial, defense counsel raised no objection when the trial court proposed 

issuing CALCRIM No. 1193. Based on this, the Attorney General urges this court to 

conclude that defendant has forfeited this issue. In reply, defendant asserts that “the rule 

of forfeiture does not apply if the instruction was an incorrect statement of the law, which

is [defendant’s] argument here.”
48

We need not decide whether forfeiture applies in this case because the trial court 

did not err in giving CALCRIM No. 1193. The trial court did not err in instructing the 

jury in accordance with CALCRIM No. 1193 because it is not reasonably likely that 

jurors understood the instruction as permitting the use of Dr. Urquiza’s testimony for the 

improper purpose of proving that defendant sexually abused Jane Does 1 through 4. 

CALCRIM No. 1193 informs jurors that they may use CSAAS evidence to evaluate 

whether the alleged victim’s behavior, which may appear inconsistent with being 

molested, was actually not inconsistent with the behavior of a child sexual abuse victim. 

To the extent that CALCRIM No. 1193 allowed the jury to consider Dr. Urquiza’s 

testimony in their evaluation of the believability of the testimony from Jane Does 1 

through 4, the instruction is proper. CSAAS evidence is relevant and admissible when an 

alleged victim’s credibility has been attacked. (See McAlpin, supra, 53 Cal.3d at p. 1302 

[expert opinion that it is not unusual for a parent to refrain from reporting a known child 

molestation was “clearly relevant [citation] because it tended to rehabilitate the 

testimony” of the victim’s mother as a corroborating witness].) The jury could use the 

CSAAS evidence in evaluating whether the testimony of Jane Does 1 through 4 was 

believable. The instruction specifically instructs the jurors that they must not consider 

CSAAS testimony as evidence that defendant committed the charged crimes. Thus, 

nothing about the language of CALCRIM No. 1193 supports defendant’s argument that 

his due process rights were denied.

When combined with Dr. Urquiza’s testimony emphasizing the limited nature of 

his testimony, the instruction would not cause the jury to believe that they could consider 

Dr. Urquiza’s testimony as proof that defendant sexually abused Jane Does 1 through 4. 

As defendant acknowledges, the Court of Appeal in People v. Gonzales (2017) 

16 Cal.App.5th 494 (Gonzales) rejected a similar argument to the one defendant raises 

here. In Gonzales, the court noted that CALCRIM No. 1193 “must be understood in the 

context” of the expert’s testimony, which in that case stressed that “CSAAS is not a tool 
49

to help diagnose whether a child has actually been abused.” (Gonzales, supra, at p. 503.) 

In this context, the court held, a reasonable juror would understand CALCRIM No. 1193 

to mean that the jury could use the expert’s testimony to conclude that the alleged 

victim’s behavior “does not mean she lied when she said she was abused.” (Gonzales, 

supra, at p. 504.) The court held that the jury would understand that it could not use the 

CSAAS expert’s testimony to conclude that the alleged victim “was, in fact, molested.” 

(Ibid.) The court concluded: “The CSAAS evidence simply neutralizes the victim’s 

apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who 

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

CSAAS evidence does not show she had been molested. There is no conflict in the 

instruction.” (Ibid.) Other courts have come to similar conclusions regarding CALCRIM 

No. 1193. (See Lapenias, supra, 67 Cal.App.5th at pp. 175–176; Munch, supra, 

52 Cal.App.5th at p. 474.) Recently, this court also held that a trial court did not err in 

instructing the jury with CALCRIM No. 1193 regarding testimony from the same expert 

who testified in the instant case, and that there was no reasonable likelihood the jurors 

applied the instruction in an impermissible manner. (People v. Ortiz (2023) 

96 Cal.App.5th 768, 782, 816.) We follow the same approach here. Because the 

instruction correctly informed the jury of the permissible and impermissible uses of 

Dr. Urquiza’s testimony, and because there is no reasonable likelihood that the jury 

misconstrued or misapplied the instruction in the manner asserted by defendant, the trial 

court did not err in instructing the jury with CALCRIM No. 1193, and defendant’s due 

process right was not denied.

In addition, even if the trial court erred in instructing the jury with CALCRIM 

No. 1193, any such error would not constitute reversible error. The trial court instructed 

the jury to not use the testimony to determine whether abuse occurred. The prosecutor 

did not mention Dr. Urquiza’s testimony in her closing argument, indicating that this 
50

testimony was not a central matter in the prosecution’s case. Dr. Urquiza’s testimony 

was brief and limited, and he stressed in his testimony that he was not familiar with the 

facts of this case and was not expressing any view as to whether abuse occurred in this 

matter. The strong evidence against defendant, including the video evidence that 

corroborated Jane Doe 1’s testimony and the similar testimony from Jane Does 2 

through 4, also supports the conclusion that defendant would have been convicted of the 

same offenses regardless of any alleged error in the instruction. Even if the trial court 

erred in using CALCRIM No. 1193 and the error was of federal constitutional dimension, 

we find the error harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at 

page 24.

G. Instruction Regarding Using Evidence of Defendant’s Charged Actions to 

Demonstrate Propensity

Defendant next asserts that the trial court erred in instructing the jury in 

accordance with CALCRIM No. 1191B. Consistent with this instruction, the trial court 

instructed defendant’s jury as follows: “The People presented evidence that the 

defendant committed the crimes of lewd or lascivious acts on a child under 14 years as 

charged in counts 1, 2, 3, 8, 9, 10, and 11. [¶] If the People have proved beyond a 

reasonable doubt that the defendant committed one or more of these crimes, 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 and did commit the other sex offenses charged in this 

case. [¶] If you find that the defendant committed one or more of these crimes, that 

conclusion is only one factor to consider along with all the other evidence. It is not 

sufficient by itself to prove that the defendant is guilty of another crime. The People

must still prove each charge and allegation beyond a reasonable doubt.” Defendant 

contends that the instruction is legally erroneous in allowing the jury to consider evidence 

of charged acts of sexual abuse to be used as evidence of defendant’s propensity to 
51

commit other charged acts of sexual abuse, and that the error prejudiced him. We do not 

agree.

As a preliminary matter, as with the CALCRIM No. 1193 instruction, defendant’s 

trial brief listed CALCRIM No. 1191B as one of its proposed instructions. Defense 

counsel also voiced no objection when the trial court proposed issuing this instruction. 

However, we need not decide whether forfeiture applies here, because the trial court’s 

instruction was not legally erroneous.

Evidence Code section 1101 provides in relevant part: “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.” (Evid. Code, § 1101, subd. (a).) 

Evidence Code section 1108 provides in relevant 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.”5 (Evid. Code, § 1108, subd. (a).)

As defendant notes, the California Supreme Court has held that Evidence Code 

section 1108’s reference to “the defendant’s commission of another sexual offense or 

offenses” permits the jury to consider evidence of a defendant’s charged sexual offenses, 

in addition to evidence of uncharged sexual offenses, to demonstrate his or her 

propensity to commit the other charged sexual offenses. In People v. Villatoro (2012) 

54 Cal.4th 1152 (Villatoro), our Supreme Court held: “In short, we conclude nothing in 

the language of section 1108 restricts its application to uncharged offenses. Indeed, the 

5 Evidence Code section 352 states: “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.”
52

clear purpose of section 1108 is to permit the jury’s consideration of evidence of a 

defendant’s propensity to commit sexual offenses. . . . In light of this clear purpose, we 

perceive no reason why the Legislature would exclude charged sexual offenses from 

section 1108’s purview, and no indication that it did so in either the text of section 1108 

or its legislative history. Whether an offense is charged or uncharged in the current 

prosecution does not affect in any way its relevance as propensity evidence.” (Id. at 

p. 1164.) As with defendant’s earlier issue regarding admission of Dr. Urquiza’s 

testimony, decisions by the California Supreme Court are binding on this court. 

(Johnson, supra, 53 Cal.4th at pp. 527–528.) Under Villatoro, the trial court correctly 

instructed the jury that if it found beyond a reasonable doubt that defendant committed 

one or more of the charged lewd or lascivious acts, it could conclude from that evidence 

that defendant was likely to commit and did commit the other sexual offenses charged in 

this case.

H. Ineffective Assistance of Counsel – Failure to Object to Prosecutor’s Closing 

Argument Regarding Lesser Offenses

Defendant next asserts that he received constitutionally ineffective assistance of 

counsel when his trial counsel failed to object to the prosecutor’s statement during 

closing argument that the jury should not consider a lesser included offense until it had 

acquitted defendant of the charged offense. This argument stems from the prosecutor’s 

argument to the jury as follows: “So you are going to see an instruction in the verdict 

forms for Counts 8 and 9. Lessers are basically if you find the defendant not guilty of 

Counts 8 or 9, then and only then do you consider the lesser offense.” Defense counsel 

did not object to this statement. Counts 8 and 9 alleged defendant committed lewd acts 

against Jane Does 2 and 3. The trial court instructed the jury that attempted lewd acts 

were lesser included offenses to counts 8 and 9.6 Defendant claims the prosecutor’s 

6 Defendant waived the statute of limitations so the trial court could instruct the 

jury on these lesser included offenses to counts 8 and 9.
53

statement misstated the law because the statement “conflated an instruction about 

verdicts -- i.e., the jury cannot reach a verdict on the lesser included offense without 

reaching a not guilty verdict on the charged offense -- with the jury’s ability to 

simultaneously discuss the charged offense along with the lesser included offense.”

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

establish both that his or her counsel’s performance was deficient and that he or she 

suffered prejudice. (Strickland, supra, 466 U.S. at p. 687.) “If it is easier to dispose of 

an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect 

will often be so, that course should be followed.” (Id. at p. 697.) Regarding prejudice, 

“[t]he defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” (Id. at 

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

in the outcome.” (Ibid.) “A defendant must prove prejudice that is a ‘ “demonstrable 

reality,” not simply speculation.’ [Citations.]” (Fairbank, supra, 16 Cal.4th at p. 1241.)

In People v. Kurtzman (1988) 46 Cal.3d 322, the California Supreme Court 

interpreted an earlier decision from the court to “be read to authorize an instruction that 

the jury may not return a verdict on the lesser offense unless it has agreed beyond a 

reasonable doubt that defendant is not guilty of the greater crime charged, but it should 

not be interpreted to prohibit a jury from considering or discussing the lesser offenses 

before returning a verdict on the greater offense.” (Id. at p. 329.) “Kurtzman thus 

affirmed the validity of an ‘acquittal-first’ rule—that the jury may not return a verdict on 

a lesser offense unless it first finds a defendant not guilty of the greater offense—but 

rejected a strict acquittal-first rule, applied in some states, ‘under which the jury must 

acquit of the greater offense before even considering lesser included offenses.’ 

[Citation.]” (People v. Olivas (2016) 248 Cal.App.4th 758, 773.)
54

Assuming without deciding that trial counsel was ineffective in failing to object to 

this statement by the prosecutor,7 defendant was not prejudiced by the failure to object. 

Soon after the prosecutor’s argument, the trial court instructed the jury in accordance 

with CALCRIM No. 3517 as follows: “It is up to you to decide the order in which you 

consider each crime and the relevant evidence, but I can accept a verdict of guilty of a 

lesser crime only if you have found the defendant not guilty of the corresponding greater 

crime.” “We of course presume ‘that the jurors understand and follow the court’s 

instructions.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 803.) Thus, the jury 

is presumed to have followed the trial court’s instructions that the jury could determine 

the order in which it would consider each charged offense and the relevant evidence. 

Defendant was not prejudiced by any deficiency in his trial counsel’s failure to object to 

the prosecutor’s statement, and thus he is not entitled to relief on this issue.

I. Imposition of Fines and Fees

The trial court imposed various fines and fees at sentencing, including a $10,000 

restitution fine pursuant to section 1202.4, subdivision (b) and a suspended restitution 

fine in the same amount under section 1202.45, a $300 sex offender registration fine 

pursuant to section 290.3 plus $930 in penalty assessments, a $440 court operations 

assessment pursuant to section 1465.8, subdivision (a)(1), and a $330 court facilities 

assessment (also referred to as a criminal conviction assessment) pursuant to Government 

Code section 70373. Defendant did not object that he lacked the ability to pay these fines 

and fees, and when the trial court asked defense counsel if he wished to address anything 

concerning the sentence the court imposed, defense counsel replied negatively. The trial 

court did not explicitly conduct an assessment as to defendant’s ability to pay these 

amounts.

7 The Attorney General concedes that this statement by the prosecutor was 

erroneous, and that no tactical reason could account for defense counsel’s failure to 

object to it.
55

Defendant challenges the imposition of the fines and fees listed above, asserting 

that imposing these fines and fees without a determination that he was able to pay these 

costs violated his due process rights under the United States and California Constitutions. 

Defendant cites People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) in support of 

this argument. We conclude defendant forfeited this argument by failing to object to the 

imposition of these fines and fees at sentencing.

In Dueñas, the Court of Appeal reversed an order imposing the court operations 

assessment and the court facilities assessment after concluding that it was “fundamentally 

unfair” and violated the defendant’s due process rights under the federal and California 

Constitutions to impose these assessments without determining the defendant’s ability to 

pay these amounts. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also 

concluded that the execution of a restitution fine under section 1202.4 “must be stayed 

unless and until the trial court holds an ability to pay hearing and concludes that the 

defendant has the present ability to pay the restitution fine.” (Dueñas, supra, at p. 1164.) 

At sentencing, the defendant in Dueñas had requested a hearing to determine her ability 

to pay various amounts that were imposed by the trial court, and at the separate hearing, 

she presented an “uncontested declaration concerning her financial circumstances.” (Id.

at p. 1163.)8

In general, a defendant who fails to object to the imposition of fines and fees at 

sentencing forfeits the right to challenge those fines and fees on appeal. (See, e.g., 

People v. Aguilar (2015) 60 Cal.4th 862, 867; People v. Trujillo (2015) 60 Cal.4th 850, 

8 The California Supreme Court has granted review of two related issues in light 

of Dueñas: 1) Must a court consider a defendant’s ability to pay before imposing or 

executing fines, fees, and assessments; and 2) If so, which party bears the burden of 

proof regarding defendant’s inability to pay. (People v. Kopp (2019) 38 Cal.App.5th 47, 

95 (Kopp) [citing Dueñas in holding that a trial court erred by not conducting an ability 

to pay hearing for court facilities and court operations assessments after the defendant 

explicitly raised the issue below], review granted Nov. 13, 2019, S257844.)
56

853–854.) Following Dueñas, several courts have continued to apply forfeiture where 

a defendant fails to object to fines and fees on ability to pay grounds and the sentencing 

hearing was conducted after Dueñas was decided. (People v. Flowers (2022) 81 

Cal.App.5th 680, 687; People v. Washington (2021) 61 Cal.App.5th 776, 800; People v. 

Keene (2019) 43 Cal.App.5th 861, 864; People v. Frandsen (2019) 33 Cal.App.5th 1126, 

1153 (Frandsen).) This court has likewise held that forfeiture applies where a defendant 

fails to object to the imposition of fines and fees at sentencing proceedings that took 

place after Dueñas. (People v. Greeley (2021) 70 Cal.App.5th 609, 624 (Greeley).)

While we await the California Supreme Court’s decision in Kopp, we need not 

address in this case whether Dueñas was correctly decided because defendant forfeited 

this issue by failing to object at his sentencing hearing. Defendant’s sentencing hearing 

took place on April 12, 2022, more than three years after Dueñas was decided. Thus, 

“there is no reason why defendant could not have requested an ability-to-pay hearing 

based on Dueñas.” (Greeley, supra, 70 Cal.App.5th at p. 624.) “Defendant’s apparent 

decision to not raise the issue at the felony sentencing hearing forfeits [his] arguments on 

appeal.” (Ibid.) Defendant’s case is distinguishable from other decisions by this court 

where the sentencing hearings took place prior to Dueñas. (See People v. Santos (2019) 

38 Cal.App.5th 923, 932 [holding forfeiture did not apply where the defendant’s 

sentencing hearing took place about one year before Dueñas was decided]; People v. 

Petri (2020) 45 Cal.App.5th 82, 88–89 [assuming without deciding that the defendant did 

not forfeit his due process claim under Dueñas where sentencing took place before the 

Dueñas decision].)

In addition, apart from Dueñas, the trial court imposed the maximum restitution 

fine of $10,000 under section 1202.4, along with a suspended parole revocation fine in 

equal amount under section 1202.45. Subdivision (d) of section 1202.4 states that “the 

court shall consider any relevant factors, including, but not limited to, the defendant’s 

inability to pay . . .” in setting a restitution fine above the statutory minimum. 
57

Because the trial court imposed the maximum restitution fine (§ 1202.4, subd. (b)(1)), 

defendant was “obligated to object to the amount of the fine and demonstrate his 

inability to pay anything more than the $300 minimum. Such an objection would not 

have been futile under governing law at the time of his sentencing hearing. [Citations.]” 

(Frandsen, supra, 33 Cal.App.5th at p. 1154.) In other words, “even before Dueñas

a defendant had every incentive to object to imposition of a maximum restitution 

fine based on inability to pay because governing law as reflected in the statute 

[citation] expressly permitted such a challenge. [Citation.]” (People v. Gutierrez

(2019) 35 Cal.App.5th 1027, 1033.) Because defendant forfeited his objection to the 

$10,000 restitution fine and suspended parole revocation fine in equal amount, the 

forfeiture analysis applies to the other fines and fees in lesser amounts. “As a 

practical matter, if [defendant] chose not to object to a $10,000 restitution fine based 

on an inability to pay, he surely would not complain on similar grounds regarding 

[lesser] fees.” (Ibid.)

Defendant alleges in the alternative that he was denied his right to effective 

assistance of counsel by his trial counsel’s failure to object to the imposition of 

certain fines and fees. However, where—as here—a claim of ineffective assistance 

of counsel is made on direct appeal, ineffective assistance of counsel will be found 

only if the record affirmatively demonstrates trial counsel had no rational tactical 

purpose for the challenged act or omission. (Mai, supra, 57 Cal.4th at p. 1009; 

Mickel, supra, 2 Cal.5th at p. 198.) Here, the record does not affirmatively 

demonstrate defendant’s trial counsel had no rational tactical purpose for failing to 

object to the imposition of the challenged fines and fees. Defense counsel may 

have had access to information about defendant’s financial status, including the 

possibility of his earnings while in prison, that would make such an objection 
58

unsuccessful.9 We therefore conclude that defendant has not demonstrated his trial 

counsel was ineffective in failing to object to the imposition of the fines and fees.

J. Conclusion

The compelled use of defendant’s fingerprint to unlock his phone did not violate 

defendant’s Fourth Amendment right to be free from unreasonable searches and seizures 

because even assuming the use of his fingerprint constituted a search under the Fourth 

Amendment, the detective’s probable cause statements seeking authority to compel 

defendant’s fingerprint were incorporated by reference into the warrants, and thus the 

detective’s actions in compelling defendant to provide his fingerprint to unlock the phone

were not warrantless. In addition, suppression of the evidence from defendant’s phone 

was not called for because the good faith exception to the exclusionary rule applies. 

Defendant’s act of producing his fingerprint to unlock the phone was not testimonial and 

thus the privilege against compulsory self-incrimination was not violated, as defendant 

provided physical evidence rather than testimonial evidence. Defendant did not make use 

of the contents of his mind in providing his fingerprint, and any marginal testimonial 

component of this act concerning his access to and control over the phone was a foregone 

conclusion. Because defendant’s act of providing his fingerprint was non-testimonial and 

because law enforcement used reasonable force in procuring his fingerprint, defendant’s 

due process rights were not violated. Defendant did not receive ineffective assistance of 

counsel concerning the motion to suppress the results of the search of his phone, as trial 

counsel raised the same issues defendant raises on appeal, issues we have determined do 

not warrant relief.

9 The probation officer’s presentencing report characterized defendant’s financial

capability as “[l]imited,” while noting defendant “will have earning potential in State 

Prison.” The search warrants in this matter noted defendant either possessed or had 

access to two vehicles, a Volkswagen Beetle and a BMW X5, and that in addition to his 

personal cell phone, he possessed a work phone.
59

Even assuming forfeiture does not apply, the trial court did not err in admitting the 

testimony of Dr. Urquiza or in instructing the jury in accordance with CALCRIM 

Nos. 1193 and 1191B. Defendant did not receive constitutionally ineffective assistance 

of counsel based on his trial counsel’s lack of objection to a statement by the prosecutor 

concerning lesser included offenses. Defendant forfeited any objection that the trial court 

erred in imposing various fines and fees, and he has not demonstrated he received 

constitutionally ineffective assistance of counsel based on his trial counsel’s lack of 

objection to the imposition of these fines and fees.

IV. DISPOSITION

The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

WILSON, J.

BROMBERG, J.

People v. Ramirez

H049957
Trial Court: Monterey County Superior Court

Superior Court No.: 18CR008098

Trial Judge: Hon. Rafael Vazquez

Attorneys for Defendant and Appellant:

Alfredo Ramirez

Rachel Paige Varnell

Sixth District Appellate Program

Attorneys for Plaintiff and Respondent:

The People

Rob Bonta

Attorney General of California

Lance E. Winters

Chief Assistant Attorney General

Jeffery M. Laurence

Senior Assistant Attorney General

Amit A. Kurlekar

Deputy Attorney General

David M. Baskind

Deputy Attorney General

People v. Ramirez

H049957