1

Filed 5/6/16 P. v. Ramirez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMUEL RAMIREZ,

Defendant and Appellant.

 A143981

 (Contra Costa County

 Super. Ct. No. 5-132103-3)

Samuel Ramirez was convicted by a jury of 26 counts of committing a forcible 

lewd act on a child under the age of 14. The offenses involved a single victim, Ramirez’s 

stepdaughter, Jane Doe. He was sentenced to state prison for 156 years and ordered to 

pay Doe $900,000 in noneconomic restitution. On appeal, Ramirez contends: (1) the 

trial court abused its discretion in admitting evidence of uncharged sexual offenses 

pursuant to Evidence Code sections 1101 and 1108;1 (2) the trial court abused its 

discretion in admitting certain expert testimony; (3) his trial counsel was ineffective in 

failing to object to the admission of hearsay; (4) the cumulative impact of alleged errors 

requires reversal; and (5) the trial court’s restitution award constitutes an abuse of 

discretion. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ramirez was charged by information with 26 counts of committing a forcible lewd 

act on Doe, a child under 14 (Pen. Code, § 288, subd. (b)(1)). The 26 offenses were 

 

1 Undesignated statutory references are to the Evidence Code.
2

alleged to have occurred in Rodeo between December 1, 1993, and December 31, 1994. 

It was further alleged that the statute of limitations was extended and Ramirez was 

ineligible for probation because the offenses involved substantial sexual conduct (Pen. 

Code, §§ 803, subd. (f), 1203.066, subd. (a)(8)).

Prosecution’s Case

Doe’s Testimony

Doe was 30 years old at the time of trial. Although Ramirez was technically her 

stepfather, Doe considered Ramirez her father. She had known him since she was two 

years old, when he and her mother, Sandra, moved in together.

2 Doe’s family also 

included her three siblings, Benjamin, Cruz, and Casandra (respectively ages 35, 22, and 

21 at the time of trial), as well as two stepsiblings.

The family lived in Los Angeles until 1991. When Doe was about eight years old, 

they moved to Mill Valley into a three bedroom duplex, where the molestations began. 

During the time they lived in Mill Valley, Ramirez entered Doe’s bedroom a couple of 

times a week or every couple of days, in the middle of the night, pulled her covers down, 

removed her pants and underwear, and touched her buttocks and vagina. “It was always 

the same.”

The family moved again sometime between April 1993 and April 1994, when Doe

was nine or 10 years old, to a four-bedroom house in Rodeo. In Rodeo, the molestations 

continued. In addition to fondling her, sucking on her nipples, and kissing her, Ramirez 

began to orally copulate Doe and lick her anus. Although Doe could not remember the 

number of incidents, the molestations were frequent—occurring approximately several 

times a week. The acts generally followed a consistent pattern.3 Doe began wearing 

 

2 Ramirez and Sandra did not marry until Doe was an adult, in approximately 

2008. They divorced several years later.

3 On one memorable occasion in Rodeo, Ramirez had been drinking at the 

neighbors’ house and came home momentarily in the late afternoon to retrieve a forgotten 

item. On encountering Doe at home alone, he ripped off her shirt, hugged and French 

kissed her, and kissed her chest.
3

multiple layers of clothing to bed, trying to hold up her pants before Ramirez forced them 

down, and crossing her legs in an attempt to protect herself. Ramirez said “please” and 

“come on” and she could not stop him. Generally, Doe would just “lay there lifelessly,” 

sometimes crying.

The family moved to a three-bedroom house in Vallejo. The molestations 

remained similar but became less frequent—happening approximately every other week. 

When Doe was about 11, the family moved yet again to a residence at San Quentin, 

where Ramirez worked as an electrician. The abuse in San Quentin occurred less 

frequently than in Vallejo. Doe started saying “no.” Ramirez stopped orally copulating

Doe, but he continued to touch her vagina and buttocks. He began waking her up in the 

morning by massaging her feet, touching her vagina, and applying lotion. When Doe

would say “no,” Ramirez responded, “I’m not hurting you.” On one occasion, she woke 

up and Ramirez was trying to rub his exposed penis with her hand. That was the last time 

Ramirez tried to touch her. When Doe was 16, the family moved to Jamestown. She 

moved out a year later and lived with her boyfriend in Sonora.

Ramirez never verbally threatened Doe and never used physical violence during 

the molestations. She just laid there, not understanding what was happening. However, 

Doe felt trapped, scared, humiliated, and confused whenever Ramirez molested her. 

Although Ramirez never spanked her during any of the molestations, this discipline was 

part of the fear Doe experienced.4 She feared that, if she resisted or “said anything,” she 

would be spanked. Doe felt trapped because Ramirez was in control and “what he said 

went.” While the molestations were occurring, Ramirez never told her it was a secret or 

not to tell anyone. Nonetheless, she did not tell anyone because she felt scared and 

humiliated. Doe waited a very long time to tell her mother because she did not want to 

destroy what appeared to be a happy marriage. Having a daughter herself gave Doe the 

strength to come forward.

 

4 When Doe misbehaved, Ramirez disciplined her by spanking her bare bottom 

with his hand.
4

In approximately 2008, when Doe was about 25 years old, she asked Ramirez why 

he molested her. He said he had “a sickness.” Around 2012, when Doe was 

approximately 28 or 29, she learned that Sandra and Ramirez were separating. Around 

the same time, Doe told Sandra and her older brother, Benjamin, that Ramirez had 

molested her. At a family meeting to discuss Sandra and Ramirez’s separation, Ramirez 

admitted molesting Doe. Doe reported the abuse to police in March 2013.

Siblings’ Testimony

Doe’s younger brother, Cruz, attended the 2012 family meeting and heard 

Ramirez admit he molested Doe. After that meeting, Ramirez wrote Cruz a letter, in 

which he referred to “the revelation of my past with your sister.” Doe’s younger sister, 

Casandra, also attended the 2012 family meeting. She heard Ramirez say, “I molested 

your sister, [Doe].”

Police Investigation

Sergeant Deborah Moss, of the Tuolumne County Sheriff’s Office, testified that

Doe reported the abuse on March 26, 2013. Doe said the abuse began in Mill Valley

when she was around seven years old and in the fourth grade. In fifth grade they moved 

to Rodeo. Doe told Moss that, while in Rodeo, Ramirez came into her room every night 

or every other night and touched her vagina, kissed her lips and breasts, and orally 

copulated her.

Moss arranged a pretext call between Doe, Casandra, and Ramirez, which was 

played for the jury. Ramirez admitted the molestations, which he said began in Rodeo

when Doe was seven or eight. He attributed the molestations to a “sickness.”

Police Interview of Ramirez

On April 17, 2013, Moss and Detective Kenny Hutton interviewed Ramirez. 

Ramirez admitted that he molested Doe. He denied ever orally copulating Doe, and he 

did not remember molesting her as frequently as twice a week. However, Ramirez 

conceded that if Doe claimed that many molestations he would not disagree. He 

remembered four episodes in the Rodeo house, only two of which involved touching 

Doe’s vagina. He also denied any molestations occurred in Mill Valley. But Ramirez 
5

remembered six to 10 incidents at the San Quentin residence when he had Doe 

masturbate him. At the end of his statement to police, Ramirez wrote a letter to Doe in 

which he admitted, among other things, rubbing her vagina, breasts, and buttocks, and 

using her hand to masturbate him.

Police Interview of Doe

On April 29, 2013, Hutton took a more extensive interview of Doe. In its case-inchief, the prosecution introduced an abbreviated video and transcript of the April 2013

interview. In this abbreviated version, Doe told Hutton the molestations began in Mill 

Valley. At that time, Ramirez would come into Doe’s bedroom about once a week, or 

every other night, pull her pajamas down and “touch[ed]” and “finger[ed]” her. In 

Rodeo, Ramirez continued molesting her every other day and began performing oral sex. 

He would also try to kiss her and get her to touch him. Although Ramirez never 

threatened her or used violence, she thought she would get in trouble if she did not 

cooperate. Ramirez exposed his penis “sometimes.”

Expert Witness’s Testimony

Sergeant Antonio Benavides, an investigator with the Contra Costa County 

District Attorney’s Office, testified as an expert in delayed disclosure, evolving 

disclosure, victim behavior, and the profile of sexual abusers. Benavides testified that 

some victims of sexual abuse will delay disclosure because of confusion, fear, shame, 

guilt, and self-blame. Also, if the abuser is someone who has control or power over the 

victim, it may take longer for the victim to come forward.

Defense Case

Ramirez was the only defense witness. He testified that when he met Sandra in 

1987, she already had two children—Benjamin and Doe. He and Sandra began living 

together about a year after they met, had a child together in 1991, and finally married in 

2005.

Ramirez drank heavily throughout Doe’s childhood. For example, on a typical 

weeknight, he drank four or five beers and a similar number of mixed drinks. He quit 
6

drinking in October 2004. Ramirez admitted spanking Doe, although he probably 

spanked her less than 10 times total.

Ramirez denied ever molesting Doe. He had consensual sex with her when she 

was 16. While Sandra, Benjamin, and the younger siblings moved the family’s 

belongings to their new home in Jamestown, Ramirez and Doe stayed an extra day to 

paint the San Quentin home. Ramirez went to bed around 9:00 p.m., after consuming 

about nine beers and half a fifth of vodka. He awoke to find Doe holding his penis. He 

grabbed her hand and asked, “What are you doing?” After Ramirez tried to push her 

hand away, she said, “No. Don’t stop me. I wanted this and I know you want it too.”

5 

Ramirez stopped resisting and had intercourse with Doe.

In 2010, Doe told Ramirez that she wanted to talk with him about what happened. 

She said that what they had done was weighing on her, and she felt the need to disclose it. 

Ramirez offered to talk with Sandra immediately, but they agreed it would crush her. 

Ramirez offered to take responsibility and suggested he could tell Sandra he molested 

Doe. Doe approved of that approach. Ramirez decided that admitting to molestation 

would help Doe “come to terms with this.”

In October 2012, the family, including Doe, met to discuss the division of marital 

assets. At the meeting, Doe asked Ramirez, “Don’t you have something to say to the 

family?” Ramirez “could tell just what she wanted me to say,” so he said, “I molested 

your sister.” Doe said that if Ramirez signed certain papers and made sure Sandra never 

had to work again, she would not pursue the matter. Ramirez later signed an asset 

agreement, in which he “[gave] up virtually everything.” In his letter to Cruz, Ramirez’s

reference to “my past with your sister” was a reference to the 1999 incident when Doe

was 16, “but of course nobody knew that.”

During the pretext call, Ramirez felt he was unable to defend himself. He felt that 

telling the truth would be worse. He therefore made up the idea that he had a “sickness”

 

5 Ramirez said Doe had entered his bedroom not fully dressed on four or five 

previous occasions.
7

and hoped “[Doe and Casandra] would accept [this] so that [they] could move on.” 

When the police interviewed him, Ramirez decided to continue lying. Since the family 

had already alienated him, he did not think his predicament could get worse. He also lied 

to police to protect Sandra and Doe and to provide Doe with closure. He was not 

concerned that he was admitting crimes because the police had assured him that his case 

was less serious. Ramirez fabricated details or took a nonsexual situation and sexualized 

it. The letter he wrote to Doe at the end of the interview incorporated things suggested by 

Hutton.

Rebuttal

In rebuttal, the prosecutor played the complete recording of Doe’s April 2013

interview, which was largely consistent with her testimony at trial.

Verdict and Sentence

Ramirez was convicted of all 26 counts and all special allegations were found true. 

He was sentenced to state prison for a total term of 156 years. The trial court also 

ordered Ramirez to pay $900,000 in restitution to Doe for pain and suffering. Ramirez 

filed a timely notice of appeal.

II. DISCUSSION

Ramirez contends: (1) the trial court erred in admitting evidence of uncharged 

sexual offenses pursuant to sections 1101 and 1108; (2) the trial court abused its 

discretion in admitting Benavides’s expert testimony; (3) his trial counsel was ineffective

in failing to object to the admission of Doe’s out-of-court statements to police; (4) the 

cumulative impact of the alleged errors requires reversal; and (5) the trial court’s 

restitution award constitutes an abuse of discretion. None of Ramirez’s arguments has 

merit.

A. Admission of Evidence of Uncharged Sexual Offenses

Over Ramirez’s section 352 objection, the trial court admitted, under sections 

1101 and 1108, evidence of uncharged sexual offenses against Doe in addition to 
8

evidence of the 26 charged molestations (which occurred in Rodeo during 1993–1994).6 

Ramirez insists this was an abuse of discretion and deprived him of a fair trial.

“Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s 

disposition to commit such acts. ( . . . § 1101.) However, the Legislature has created 

exceptions to this rule in cases involving sexual offenses ( . . . § 1108) and domestic 

violence (. . . § 1109).” (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) 

Section 1108 “allows evidence of the defendant’s uncharged sex crimes to be introduced 

in a sex offense prosecution to demonstrate the defendant’s disposition to commit such 

crimes.” (People v. Reliford (2003) 29 Cal.4th 1007, 1009.)

“Under . . . section 352, the trial court enjoys broad discretion in assessing whether 

the probative value of particular evidence is outweighed by concerns of undue prejudice, 

confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) 

A trial court’s exercise of its discretion under section 352 “ ‘must not be disturbed on 

appeal except on a showing that the court exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” 

(Rodrigues, at pp. 1124–1125; accord, People v. Story (2009) 45 Cal.4th 1282, 1295.) 

“[A] court need not expressly weigh prejudice against probative value or even expressly 

state that it has done so, if the record as a whole shows the court was aware of and 

performed its balancing functions under . . . section 352.” (People v. Taylor (2001) 

26 Cal.4th 1155, 1169.)

 

6 Section 1108, subdivision (a), provides: “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.” Section 352 provides: “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.”
9

1. Background

In pretrial motions, the prosecution moved to admit evidence of Ramirez’s 

uncharged sexual offenses involving Doe, pursuant to section 1108. Ramirez opposed 

the motion, arguing the evidence was unduly prejudicial. The trial court agreed with the 

prosecutor that the uncharged acts were admissible under sections 352, 1101, and 1108. 

The court explained its ruling as follows: “[I]t seems to me the history between them 

would be relevant to [the force] issue with a child starting at age seven years old. [¶] I 

have considered 352 and the obvious prejudice from that long history of alleged abuse, 

but I think the probative value is very substantial and outweighs the prejudicial effect.”

2. Analysis

Ramirez contends that the probative value of Doe’s testimony regarding 

uncharged offenses was outweighed by its prejudicial effect and that “[t]he hundreds of 

additional uncharged acts . . . should have been excluded under . . . section 352.” We 

disagree.

Section 1108 reflects a legislative determination that “ ‘evidence of uncharged 

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

admissible without regard to the limitations of . . . section 1101.’ ” (People v. Britt 

(2002) 104 Cal.App.4th 500, 505–506, italics omitted; People v. Yovanov (1999) 

69 Cal.App.4th 392, 405.) “Under section 1108, courts . . . retain broad discretion to 

exclude disposition evidence if its prejudicial effect, including the impact that learning 

about defendant’s other sex offenses makes on the jury, outweighs its probative value.” 

(People v. Falsetta (1999) 21 Cal.4th 903, 919.)

In weighing prejudice against probative value under section 352, “five factors 

stand out as particularly significant in [a] . . . section 1108 case. These factors are 

(1) whether the propensity evidence has probative value, e.g., whether the uncharged 

conduct is similar enough to the charged behavior to tend to show the defendant did in 

fact commit the charged offense; (2) whether the propensity evidence is stronger and 

more inflammatory than evidence of the defendant’s charged acts; (3) whether the 

uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to 
10

confuse or distract the jurors from their main inquiry, e.g., whether the jury might be 

tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether 

admission of the propensity evidence will require an undue consumption of time. 

[Citation.] A trial court balances this first factor, i.e., the propensity evidence’s probative 

value, against the evidence’s prejudicial and time-consuming effects, as measured by the 

second through fifth factors.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)

“[T]he probative value of ‘other crimes’ evidence is increased by the relative 

similarity between the charged and uncharged offenses, the close proximity in time of the 

offenses, and the independent sources of evidence (the victims) in each offense. 

[Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged 

offenses resulted in actual convictions and a prison term, ensuring that the jury would not 

be tempted to convict the defendant simply to punish him for the other offenses, and that 

the jury’s attention would not be diverted by having to make a separate determination 

whether defendant committed the other offenses.” (People v. Falsetta, supra, 21 Cal.4th 

at p. 917.) In assessing prejudice, we must remember that “[t]he prejudice which 

exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or 

damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll 

evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. 

The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in . . .

section 352 applies to evidence which uniquely tends to evoke an emotional bias against 

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

Karis (1988) 46 Cal.3d 612, 638.)

Applying these factors here, we conclude Doe’s testimony had significant 

probative value and was not “cumulative,” as Ramirez suggests. The uncharged conduct 

was extremely similar to the charged conduct and was part of a recurrent pattern of abuse, 

wherein the incidents occurred very close in time. Doe’s testimony regarding the early

molestations, which began when she was about eight, was also relevant to place the 

charged offenses in context. Specifically, her testimony about these early offenses, if 
11

true, tends to explain why Doe felt forced to submit to the sexual activity in the charged 

offenses.

Evidence of Ramirez’s uncharged acts was no more inflammatory than Doe’s 

testimony regarding the charged offenses, so any additional prejudicial effect was 

minimal. (See People v. Ennis (2010) 190 Cal.App.4th 721, 725–726 [“[w]hatever 

emotional bias might have been invoked against [the defendant] at trial, would have been 

fully invoked by the multitude of horrific crimes actually charged . . . [, and] additional 

evidence suggesting he may have done more of the same [to the same victim], would not 

significantly change the jury’s perception of him”].) Doe was only about seven or eight 

years old when the uncharged offenses began. However, we cannot say that these early 

acts were qualitatively different or any more inflammatory than the facts underlying the 

charged crimes, which also involved oral copulation. We cannot agree with Ramirez that 

the number of uncharged offenses was unduly prejudicial standing alone. As Ramirez 

concedes, the charged acts were also numerous. 

Ramirez also contends the evidence should have been excluded because the 

uncharged acts were “remote, unpunished, and unverified by a third victim or witness.” 

We agree with the People that there was essentially no gap between the charged and 

uncharged offenses. Even if we look only at the first or last uncharged offenses, they 

occurred within a few years of the charged offenses, which is not remote. (See People v. 

Robertson (2012) 208 Cal.App.4th 965, 992 [upholding admission of uncharged sexual 

assault occurring 34 years before charged sexual offense].) The probative value of this 

testimony may not be heightened because Doe was the victim in all of the offenses. We 

also agree that there was some risk that the jury would be tempted to convict Ramirez of 

the charged offenses, regardless of guilt, to assure that he would be punished for the 

uncharged offenses. (See People v. Merriman (2014) 60 Cal.4th 1, 59; People v. Balcom 

(1994) 7 Cal.4th 414, 427.) However, the trial court weighed these factors, none of 

which are dispositive. (Merriman, at p. 59.)

Most importantly, because of the similarity of all the acts and Ramirez’s uniform 

defense that none of the acts occurred, it is highly unlikely the jury would return a guilty 
12

verdict based upon the uncharged misconduct rather than the charged offenses. If the 

jury was not inclined to believe Doe’s testimony regarding the charged acts, it is highly 

unlikely that hearing her testimony about uncharged acts would have changed the jury’s 

assessment. (People v. Ennis, supra, 190 Cal.App.4th at p. 734.) The risk of prejudice 

was also significantly reduced by the court’s instruction to the jury, pursuant to 

CALCRIM No. 1191, that the evidence of uncharged sexual offenses “is not sufficient by 

itself to prove that the defendant is guilty . . . . The People must still prove each charge 

beyond a reasonable doubt.”

7 Juries are presumed to follow the instructions given. 

(People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on other grounds by People 

v. Williams (2010) 49 Cal.4th 405,458–459.)

In light of all of the above circumstances, the trial court did not abuse its discretion 

when it concluded that the probative value of the uncharged acts testimony was not 

outweighed by its risk of undue prejudice. Because the trial court properly admitted the 

evidence under section 1108, we do not consider whether, as Ramirez suggests, the trial 

 

7 Pursuant to CALCRIM No. 1191, the jury was instructed: “The People 

presented evidence that the defendant committed the crimes of Forcible Lewd Act upon a 

Child or Lewd Act upon a Child under 14 that were not charged in this case. These 

crimes are defined for you in these instructions. [¶] You may consider this evidence only 

if the People have proved by a preponderance of the evidence that the defendant in fact 

committed the uncharged offenses. Proof by a preponderance of the evidence is a 

different burden of proof from proof beyond a reasonable doubt. A fact is proved by a 

preponderance of the evidence if you conclude that it is more likely than not that the fact 

is true. [¶] If the People have not met this burden of proof, you must disregard this 

evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, 

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 Forcible Lewd Act upon a Child 

as charged in Counts 1 through 26, or Lewd Act upon a Child under 14, which is a lesser 

charge as to each count. If you conclude that the defendant committed the uncharged 

offenses, 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 Forcible Lewd Act 

upon a Child or Lewd Act upon a Child under 14. The People must still prove each 

charge beyond a reasonable doubt.”
13

court abused its discretion in also admitting the evidence under section 1101. (People v. 

Story, supra, 45 Cal.4th at p. 1295; People v. Britt, supra, 104 Cal.App.4th at p. 506.)

B. Admission of Expert Testimony

Next, Ramirez contends the trial court abused its discretion in admitting 

Benavides’s expert testimony related to child sexual abuse accommodation syndrome 

(CSAAS). Specifically, he maintains Benavides implicitly vouched for Doe’s credibility

by opining on the significance of facts too closely mirroring her testimony. We disagree.

“As a general rule expert opinion testimony is limited to an opinion that is 

‘[r]elated to a subject that is sufficiently beyond common experience that the opinion . . . 

would assist the trier of fact.’ (. . . § 801, subd. (a).) Because admissibility of expert 

opinion is a question of degree, and a jury need not be wholly ignorant of the subject 

matter under the statutory rule, exclusion is only necessary where the opinion would add 

nothing at all to the jury’s common fund of information. (People v. McAlpin (1991) 

53 Cal.3d 1289, 1299–1300.) For example, courts have repeatedly recognized the 

appropriate use of expert testimony when an alleged victim’s actions during or following 

a crime seem to contradict the victim’s claims in cases of alleged molestation or abuse. 

(See People v. Riggs (2008) 44 Cal.4th 248, 293 [expert testimony addressing battered 

woman’s syndrome]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [expert 

testimony concerning [CSAAS]].) ‘A trial court’s decision as to whether a particular 

subject is a proper one for expert opinion is reviewed for abuse of discretion.’ ” (People 

v. Dejourney (2011) 192 Cal.App.4th 1091, 1110.)

“The general rule is that an expert may not give an opinion whether a witness is 

telling the truth, for the determination of credibility is not a subject sufficiently beyond 

common experience that the expert’s opinion would assist the trier of fact; in other 

words, the jury generally is as well equipped as the expert to discern whether a witness is 

being truthful.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) Although 

expert testimony on the common reactions of a child molestation victim is not admissible 

to prove a charged sex crime actually occurred, “ ‘CSAAS testimony “is admissible to 

rehabilitate [the molestation victim’s] credibility when the defendant suggests that the 
14

child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or 

her testimony claiming molestation.” ’ ” (People v. Perez (2010) 182 Cal.App.4th 231, 

245; accord, People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).)

The Bowker court outlined limitations on the admission of CSAAS evidence. 

First, the evidence “must be targeted to a specific ‘myth’ or ‘misconception’ suggested by 

the evidence,” such as the significance of delayed reporting. (Bowker, supra, 203 

Cal.App.3d at pp. 393–394.) Second, “the jury must be instructed simply and directly 

that the expert’s testimony is not intended and should not be used to determine whether 

the victim’s molestation claim is true. . . . The 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.” (Id. at p. 394, some italics added.)

1. Background

In advance of trial, Ramirez filed a motion to exclude testimony from the 

prosecution’s proposed expert psychologist, Dr. Anthony Urquiza. Ramirez argued 

Urquiza’s proposed testimony on CSAAS was irrelevant and not accepted in the 

scientific community. Ramirez also argued that, if the expert were to testify, opinions 

regarding Doe’s credibility should be excluded. The prosecutor responded that the 

admission of CSAAS expert testimony is approved in sexual assault cases. The 

prosecutor specifically noted the evidence’s relevance to this case, saying, “[t]here [are]

delayed disclosures, there are [victim] behaviors, and there was grooming, and there was 

dissuasion and there was force, all of which arise and are described in CSAAS.”

The trial court explained it would need to hear the cross-examination of Doe 

because “whether there are myths to be dispelled will depend on what she says.” 

However, the court also said, “I do understand there’s at minimum the issue of delayed 

disclosure for many years here, so I think it’s likely that I will admit [the expert’s] 

testimony. [¶] . . . [¶] I can’t in advance give specific rulings as to what questions are 

admissible and what questions are not. [¶] I would generally keep his testimony to the 

valid purposes of type of expert testimony to dispel myths . . . .”
15

After Doe testified, however, the prosecution gave notice that the testimony of 

Benavides would be offered instead to provide “information related to the late disclosure 

and evolving disclosure, victim behavior, general sexual assault investigation . . . and [to] 

very, very, very narrowly have him testify . . . that there is no profile of the sexual assault 

perpetrator . . . .” Ramirez’s trial counsel submitted on the admissibility of delayed 

disclosure expert testimony, but he also made clear that he believed the testimony should 

be limited so that “no hypotheticals would be proposed and no specifics about this . . . 

case would be discussed.”

The trial court concluded the evidence was admissible and explained: “I do think 

. . . people do have misimpressions about child sexual assault victims and how they are 

likely to behave and the significance of a delayed or evolving disclosure. So I think it is 

helpful to the jury to have the general expertise about the experience in this field. . . . [¶] 

. . . [¶] I will impose the limitations that are required by the case law; that is, there should 

be no hypotheticals mirroring the facts of this case and no elicitation of an opinion on the 

question whether the victim in this case was, in fact, a victim of child sexual assault. [¶] I 

will provide [a] limiting instruction to the jury on the nature of this testimony . . . .” 

Benavides was qualified as an expert in delayed disclosure, evolving disclosure, 

victim behavior, and the profile of sexual abusers. At the conclusion of his voir dire of 

Benavides, Ramirez’s trial counsel said, “I’ll just restate my earlier objection from the in 

limines and submit.” Ramirez’s continuing objection to Benavides’s testimony is only to 

particular instances of his testimony. Specifically, Ramirez challenges Benavides’s 

response to the following inquiry from the prosecutor: “Have you had any cases 

specifically where there’s . . . a familial relationship or a father/child-type relationship?” 

Benavides responded, “Yes. [¶] . . . [¶] [S]uspects have described just using the power 

that they have . . . as a father or as the . . . patriarch of the house. [¶] They’ve also 

described using fear or using gifts or . . . generally just trying to keep the victim on their 

good side to prevent them from disclosing.”

Benavides also testified regarding delayed disclosures: “[F]or example when you 

have a . . . father/daughter type of relationship or a close familiar relationship . . . you 
16

may have a reluctance to report because of a fear that that person that they love, that they 

care about, or that has raised them . . . may go to jail or may be in trouble or they may not 

see them again. [¶] And that person may have reinforced that behavior by telling . . . the 

victim that’s what’s going to happen, or the victim if they’re sophisticated enough can 

make that inference on their own.” The prosecutor also asked Benavides about widelyheld stereotypes about child molesters and whether they were accurate. Benavides 

responded, “In my experience, I can say that I’ve probably had out of the hundreds of 

cases that I have investigated ten at the most cases where . . . the suspect was unknown to 

the victim. The rest of those cases are all a victim who knows their perpetrator. [¶] . . . 

[¶] I would say probably two thirds to three quarters [are direct parental authority cases].”

Benavides also explained why a victim may not be able to distinguish repeated 

instances of abuse. “[A]s we do things over and over again, for example, even innocuous 

things like . . . getting gas, if those things . . . happen over and over again, they sort of 

become indistinguishable one from the other. [¶] And this behavior also sort of gets 

indistinguishable. . . . I . . . might only be able to pull out landmark events in their 

memory, for example, the first time, the last time, or a time when something was 

different, particularly violent, something changed . . . .”

2. Analysis

Ramirez contends that Benavides’s testimony was improperly tailored to reflect 

the facts of this case, making it appear that Doe was telling the truth. Contrary to the 

People’s assertion that Ramirez forfeited this argument, we conclude he adequately 

preserved it. (See People v. Perez, supra, 182 Cal.App.4th at p. 245, fn. 5.) In any event, 

the trial court did not abuse its discretion in admitting the testimony.

“Supreme Court precedent requires that expert testimony related to [CSAAS] be 

narrowly confined, subject to a proper foundational showing that such evidence is 

necessary to rebut popular misconceptions which would challenge the victim’s 

credibility. After the testimony has been received, the jury must be admonished so that it 

understands the limited purpose for admitting such evidence.” (Bowker, supra,

203 Cal.App.3d at pp. 387–388.)
17

In Bowker, supra, 203 Cal.App.3d 385, a psychologist testified “at great length” 

on CSAAS and explained in detail each of the five stages of the syndrome theory. (Id. at 

p. 389.) When asked why a child would doubt that an adult believed the child’s claim, 

the expert responded as a hypothetical child: “ ‘ “If they believe me, why are they taking 

me away from my mom? If they believe me . . . , why are they bringing me in [this 

courtroom]? How many times do I have to say it? I told the lady at the hospital, the 

policeman, I told the detective, I told the guy downtown in the suit, and they took me into 

this big courtroom.” ’ ” (Id. at pp. 389–390.)

The Bowker court stressed: “It is one thing to say that child abuse victims often 

exhibit a certain characteristic or that a particular behavior is not inconsistent with a child 

having been molested. It is quite another to conclude that where a child meets certain 

criteria, we can predict with a reasonable degree of certainty that he or she has been 

abused. The former may be appropriate in some circumstances; the latter—given the 

current state of scientific knowledge—clearly is not.” (Bowker, supra, 203 Cal.App.3d at 

p. 393.) The Bowker court concluded that the psychologist’s testimony exceeded the 

permissible bounds of CSAAS evidence, as it “was replete with comments designed to 

elicit sympathy for child abuse victims and solicitations that children should be 

believed.” (Id. at p. 394.) “[T]he picture painted by [the psychologist also] happened to 

be of the two children in the case,” in that his comment, “ ‘Why are they taking me away 

from my mom?’ ” directly mirrored the fact that complaining witnesses had been 

removed from parental home as a result of sex abuse investigation. (Ibid.) Most 

troubling was that, “by delineating each stage of the CSAAS theory, [the expert] 

constructed a ‘scientific’ framework into which the jury could pigeonhole, the facts of the 

case. Thus, even though [the psychologist] was precluded from using CSAAS as a 

predictor of child abuse, the jury was free to superimpose these children on the same 

theory and conclude abuse had occurred.” (Id. at p. 395.)

Here, the expert testimony did not go beyond that found permissible in Bowker. 

Ramirez cross-examined Doe regarding the timing of her reports to police as well as the 

timing and details of specific molestations, which tended to challenge her credibility. 
18

Benavides’s testimony helped explain why Doe’s delay in reporting the alleged abuse, as 

well as her inability to pin down specific instances, was not inconsistent with her claim 

that she was so abused. Benavides couched his testimony in terms of victims as a class, 

he did not refer to Doe specifically. Benavides’s testimony regarding the lack of any 

profile for a “typical” child molester was also admissible. (See People v. McAlpin, supra, 

53 Cal.3d at p. 1302 [without expert testimony “many jurors would tend to rely . . . on the 

widespread public image of the child molester as an old man in shabby clothes who 

loiters in playgrounds or schoolyards and lures unsuspecting children into sexual contact 

by offering them candy or money”]; id. at pp. 1302–1304.)

The trial court also properly instructed the jury with CALCRIM No. 1193: “You 

have heard testimony from Inspector Benavides regarding dispelling common 

misconception of the behavior of sexual assault victims. [¶] Inspector Benavides’s

testimony about the behavior of sexual assault victims is not evidence that the defendant 

committed any of the crimes charged against him. [¶] You may consider this evidence 

only in deciding whether or not Doe’s conduct was not inconsistent with the conduct of 

someone who had been molested and in evaluating the believability of her testimony.” 

(Italics added.) We must presume the jury followed this instruction. (People v. 

Pinholster, supra, 1 Cal.4th at p. 919.) Accordingly, it is extremely unlikely Benavides’s 

testimony was used improperly to find Doe had been molested. The court did not abuse 

its discretion in admitting Benavides’s challenged expert testimony.

8

 

8 Our conclusion is not altered by Ramirez’s reliance on People v. Roscoe (1985) 

168 Cal.App.3d 1093, in which a psychologist opined that the complaining witness 

“ ‘was diagnosed as a victim of child molest.’ ” (Id. at pp. 1098, 1095.) The Roscoe

court held “the expert testimony authorized . . . to permit rehabilitation of a 

complainant’s credibility is limited to discussion of victims as a class, supported by 

references to literature and experience (such as an expert normally relies upon) and does 

not extend to discussion and diagnosis of the witness in the case at hand.” (Id. at p. 1100, 

fn. omitted.) In reaching that conclusion, the court observed: “Thus, for example, a 

victim whose credibility is attacked for initially denying that he had been molested could 

be rehabilitated by expert testimony that such denials are more likely than not in 

molestation cases. The testimony would not be that this particular child was a victim of 
19

C. Ineffective Assistance of Counsel

Next, Ramirez maintains his trial counsel provided ineffective assistance by 

failing to object to admission of Doe’s prior statements to police. Specifically, he 

contends Doe’s recorded police interview and earlier statements to Moss were hearsay.

“In order to establish a claim of ineffective assistance of counsel, defendant bears 

the burden of demonstrating, first, that counsel’s performance was deficient because it 

‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional 

norms.’ [Citations.] 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.] If the record ‘sheds no light on why counsel acted or failed to act in the 

manner challenged,’ an appellate claim of ineffective assistance of counsel must be 

rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless 

there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the 

burden of establishing that counsel’s performance was deficient, he or she also must 

show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability 

that but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745–746; People v. Lopez (2008)

42 Cal.4th 960, 966.)

We conclude that Ramirez’s trial counsel was not ineffective in failing to object to 

admission of the recorded April 2013 interview with Hutton or Doe’s March 2013 

statements to Moss. First, even if we assume that an objection could have properly been 

sustained, “ ‘failure to object will rarely establish ineffective assistance.’ ” (People v. 

Carrasco (2014) 59 Cal.4th 924, 985.) “Generally, failure to object is a matter of trial 

tactics as to which we will not exercise judicial hindsight. [Citation.] ‘When a defendant 

 

molestation, causing him to react in a certain way, but rather that as a class victims of 

molestation typically make poor witnesses, and are reluctant to disclose or discuss the 

sordid episodes.” (Id. at p. 1099.) Benavides’s testimony was in the latter vein.
20

makes an ineffectiveness claim on appeal, the appellate court must look to see if the 

record contains any explanation for the challenged aspects of representation. If the 

record sheds no light on why counsel acted or failed to act in the manner challenged, 

“unless counsel was asked for an explanation and failed to provide one, or unless there 

simply could be no satisfactory explanation” [citation], the contention must be rejected.’ 

[Citation.] A reviewing court will not second-guess trial counsel’s reasonable tactical 

decisions.” (People v. Kelly (1992) 1 Cal.4th 495, 520.) “ ‘ “Reviewing courts will 

reverse convictions on the ground of inadequate counsel only if the record on appeal 

affirmatively discloses that counsel had no rational tactical purpose for his act or 

omission.” ’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1052.)

Here, Ramirez’s trial counsel was not asked to explain why he did not object. We 

agree with the People that Ramirez’s trial counsel may very well have acted with a 

tactical purpose when he failed to object—i.e., he believed admission of Doe’s statements

to police would be helpful to the defense to the extent her prior statements revealed 

inconsistencies with her trial testimony. In his cross-examination of Doe, Ramirez asked 

about the substance of her prior statements to police, in an apparent attempt to highlight 

such inconsistencies.9 Ramirez also referred to the asserted inconsistencies in his closing 

 

9 Specifically, the record reflects the following exchange between Doe and 

Ramirez’s trial counsel:

“Q. Now, when you were originally talking with . . . Deputy Moss, the first time 

that you had a conversation with the police, you disclosed to Deputy Moss 

that it was in [Ramirez’s brother’s] house where the abuse actually started; is 

that true?

A. No.

Q. . . . So what your testimony is is that the abuse happened not at [Ramirez’s 

brother’s] house but somewhere else?

A. Yes.

Q. And do you recall telling Deputy Moss that it happened in Mill Valley when 

you were sleeping on a pullout couch?

A. No. No. [¶] . . . [¶]

Q. Now, you’ve described the frequency of abuse at the Mill Valley house as I 

think something in the neighborhood of a couple times a week.

A. Yes.
21

argument. Of course, Ramirez is correct that Doe’s statements to police were potentially 

damaging to Ramirez because they were largely consistent with her trial testimony. 

“Competent counsel often are confronted with tactical choices that have cons as well as 

pros; a fortiori, they are permitted, indeed required, to make them.” (People v. Kelly, 

supra, 1 Cal.4th at p. 522.) This is not a case where there could be no satisfactory 

explanation for counsel’s failure to object. The pretrial discussion between counsel and 

the court regarding section 356 further supports the presumption Ramirez’s trial counsel 

took a calculated risk that, if he chose to elicit the substance of any recorded statement, 

the prosecution could move to admit the entire recording.10 Ramirez has not rebutted the 

presumption his trial counsel elected not to object for a valid tactical reason.

Furthermore, an objection would not have been meritorious. Ramirez maintains 

his counsel should have objected when, to counter his cross-examination of Doe, the 

prosecution offered excerpts (and eventually the entire recording) from Doe’s April 2013 

interview, as well as Moss’s testimony describing Doe’s statements in March 2013.

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a 

witness while testifying at the hearing and that is offered to prove the truth of the matter 

 

Q. Okay. Do you remember describing the abuse to the deputies when you had 

interviews with them as happening more frequently than that?

A. Well, it happened all the time, . . . I can’t say exactly how many times a week 

it happened but it happened a lot. [¶] . . . [¶]

Q. And do you recall telling Deputy Hutton that when you would put on clothes 

that you wore sometimes up to ten pairs of pants?

A. Yes. [¶] Well, I mean ten pairs of pants? [¶] Well, maybe it was over 

exaggerated. But maybe like four. [¶] . . . [¶]

Q. And . . . do you recall telling Deputy Moss and Deputy Hutton that you were 

kind of exhausted all the time?

A. Yes. Absolutely.”

10 Section 356 provides, in relevant part: “Where part of an act, declaration, 

conversation, or writing is given in evidence by one party, the whole on the same subject 

may be inquired into by an adverse party; . . . and when a detached act, declaration, 

conversation, or writing is given in evidence, any other act, declaration, conversation, or 

writing which is necessary to make it understood may also be given in evidence.”
22

stated.” (§ 1200, subd. (a).) Unless an exception applies, “hearsay evidence is 

inadmissible.” (§ 1200, subd. (b).) Here, although Doe’s statements to police were made 

out of court and were offered for their truth, section 356 acts as an applicable exception 

to the hearsay rule. (See People v. Harrison (2005) 35 Cal.4th 208, 239 [“[o]nce 

defendant had introduced a portion of [a witness’s] interview with [the police officer] 

into evidence, the prosecution was entitled to introduce the remainder of [the witness’s] 

interview to place in context the isolated statements of [the witness] related by [the 

officer] on direct examination by the defense”]; People v. Parrish (2007) 

152 Cal.App.4th 263, 269.)

The purpose of section 356 is “to prevent the use of selected aspects of a 

conversation, act, declaration, or writing, so as to create a misleading impression on the 

subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.) “ ‘In applying . . . 

section 356 the courts do not draw narrow lines around the exact subject of inquiry. “In 

the event a statement admitted in evidence constitutes part of a conversation or 

correspondence, the opponent is entitled to have placed in evidence all that was said or 

written by or to the declarant in the course of such conversation or correspondence, 

provided the other statements have some bearing upon, or connection with, the admission 

or declaration in evidence.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 959, italics 

omitted.) Because Ramirez’s trial counsel elicited some of the substance of Doe’s 

statements regarding the molestations to both Moss and Hutton during cross-examination, 

the entirety of her conversations with those officers was admissible. Ramirez provides no 

argument regarding section 356 and has not shown his trial counsel’s performance was 

deficient.

In any event, even if trial counsel’s failure to object fell below the objective 

standard of reasonableness, it was not prejudicial. Doe’s police interview statements 

were largely repetitive of her testimony at trial. Thus, by virtue of trial counsel’s failure 

to object, the jury was not exposed to significantly new or different incriminating 

evidence. Furthermore, the case against Ramirez was overwhelming: Doe’s testimony 

was corroborated by Ramirez’s repeated pretrial admissions—in a family meeting, a 
23

pretext call, a police interview, and an apology letter. Ramirez’s defense—that he 

repeatedly admitted serious criminal conduct to spare Sandra’s feelings and help Doe 

“come to terms” with their consensual sex—is inherently improbable. It is not 

reasonably probable Ramirez would have achieved a more favorable result but for trial 

counsel’s failure to object. (People v. Carrasco, supra, 59 Cal.4th at p. 986; People v. 

Lopez, supra, 42 Cal.4th at p. 966.)

D. Cumulative Error

Ramirez also argues that the cumulative effect of the asserted errors requires 

reversal of the judgment. We have rejected all of Ramirez’s arguments on the merits. 

Ramirez was entitled to a trial “in which his guilt or innocence was fairly adjudicated.” 

(People v. Hill (1998) 17 Cal.4th 800, 844.) He received such a trial.

E. Restitution Order

Finally, Ramirez maintains the $900,000 restitution award was an abuse of 

discretion because it was impermissibly based, in part, on loss caused by uncharged 

offenses. “A victim’s restitution right is to be broadly and liberally construed.” (People 

v. Mearns (2002) 97 Cal.App.4th 493, 500.) “With one exception, restitution orders are 

limited to the victim’s economic damages.” (People v. Smith (2011) 198 Cal.App.4th 

415, 431 (Smith).) The exception is found in Penal Code, section 1202.4, subdivision 

(f)(3)(F), which authorizes a trial court to award restitution in “a dollar amount that is 

sufficient to fully reimburse the victim [for] . . . : [¶] . . . [¶] Noneconomic losses, 

including, but not limited to, psychological harm, for felony violations of [Penal Code 

section] 288.” (Italics added.) “[W]e review the trial court’s restitution order for abuse 

of discretion.” (People v. Giordano (2007) 42 Cal.4th 644, 663.)

At sentencing, the prosecution requested a restitution award of $13 million—

$1 million for each month of abuse in the charged period—to compensate Doe for pain 

and suffering. Ramirez opposed the request as excessive. In awarding Doe $900,000 for 

noneconomic loss, the trial court explained: “Jane Doe was the victim in all 26 counts of 

forcible lewd act upon a child in violation of Penal Code Section 288(b)(1) on which 

[Ramirez] was convicted. Jane Doe was molested by [Ramirez], her mother’s boyfriend 
24

and the only father figure in her life, frequently and repeatedly from the age of 

approximately eight or nine years old until she was fifteen years old. Jane Doe felt 

trapped, terrified each night for the bulk of her childhood that [Ramirez] would come into 

her bedroom in the middle of the night to molest her again. [¶] . . . [¶] Although it is 

impossible to know the extent to which [Ramirez’s] abuse of Jane Doe has impacted the 

remainder of her life, no one can reasonably contest that [Ramirez’s] long-term and 

extensive molestation of Jane Doe caused her immeasurable psychological harm. Jane 

Doe has suffered the effects of the defendant’s abuse for her entire life, and will continue 

to suffer for the remainder of her life. Based upon Jane Doe’s testimony at trial, and 

upon the exhibits and authorities submitted by the People, the Court concludes that an 

award of $900,000 for emotional distress, past and future, is appropriate.” (Italics 

added.)

“ ‘When there is a factual and rational basis for the amount of restitution ordered 

by the trial court, no abuse of discretion will be found by the reviewing court.’ ” (People 

v. Mearns, supra, 97 Cal.App.4th at p. 499.) “Unlike restitution for economic loss, 

however, loss for noneconomic loss is subjectively quantified.” (Smith, supra,

198 Cal.App.4th at p. 436.) We will affirm such a restitution award “that does not, at 

first blush, shock the conscience or suggest passion, prejudice or corruption on the part of 

the trial court.” (Ibid.)

In Smith, supra, 198 Cal.App.4th 415, the defendant was convicted of molesting 

his stepdaughter from the time she was eight years old until she turned 15. (Id. at 

pp. 419, 420–424.) Evidence of uncharged offenses against the complaining witness was 

also presented. (Id. at pp. 421–422.) The court awarded $750,000 in noneconomic 

restitution to the victim, noting that the defendant’s acts against his stepdaughter actually 

occurred over a 15-year period—between age eight to age 23. The court multiplied that 

15 years by $50,000 per year, thus arriving at $750,000. (Id. at pp. 420, 433.)

On appeal from the restitution order, the defendant maintained the amount 

awarded was an abuse of discretion, in part because it was based on the victim’s suffering 

“during years after the crimes were committed.” (Smith, supra, 198 Cal.App.4th at 
25

p. 435; id. at pp. 420.) The Smith court referenced the civil jury instruction for 

noneconomic loss, and adopted the standard for reviewing such damage awards.

11 

(Smith, at p. 436.) The court concluded $750,000 in noneconomic damages for years of 

sexual abuse did not shock the conscience or suggest passion, prejudice or corruption. 

(Ibid.) In reaching that conclusion, the Smith court cited Ortega v. Pajaro Valley Unified 

School Dist. (1998) 64 Cal.App.4th 1023, 1033, 1059–1061, in which a jury award of 

$1.5 million in noneconomic damages was affirmed for a single act of molestation. 

(Smith, at pp. 436–437.) The Smith court was also untroubled by the trial court’s 

reference to years beyond those in which the charged offenses occurred. “As would a 

jury, the court was searching for some way to quantify [the victim’s] pain and suffering. 

And there is no credible argument, especially on the facts of this case, that [the victim’s] 

psychological harm ended when she was 15 years old. Accordingly, the court did not 

abuse its discretion.” (Id. at p. 437.)

Here, as in Smith, the trial court may have referred to the entire history of 

Ramirez’s offenses against Doe. However, contrary to Ramirez’s assertion, we see no 

evidence that the trial court ordered him to pay any sum of restitution for loss attributable 

solely to uncharged conduct. It was reasonable for the trial court, who observed Doe’s 

demeanor, to conclude that her pain and suffering did not end in 1994 and will continue 

indefinitely. The trial court’s award does not shock the conscience or suggest passion, 

prejudice or corruption.

12

III. DISPOSITION

The judgment and restitution order are affirmed.

 

11 CACI No. 3905A provides in relevant part: “No fixed standard exists for 

deciding the amount of these noneconomic damages. You must use your judgment to 

decide a reasonable amount based on the evidence and your common sense.”

12 Ramirez misplaces his reliance on People v. Woods (2008) 161 Cal.App.4th 

1045, People v. Lai (2006) 138 Cal.App.4th 1227, and People v. Percelle (2005) 

126 Cal.App.4th 164, as none of these cases involve an award of noneconomic damages 

for pain and suffering under Penal Code section 1202.4, subdivision (f)(3)(F).
26

_________________________

BRUINIERS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.