Filed 3/25/21 P. v. Fontanilla CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY FLOYD FONTANILLA,

Defendant and Appellant.

F077227

(Super. Ct. No. F16906751)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant Jeffrey Floyd Fontanilla was accused of physically and sexually

abusing his stepsons, J. and M., between 2006 and 2013. 

A jury found defendant guilty of forcible lewd acts upon a child by forcing M. to 

touch defendant’s penis the first time (Pen. Code, § 288, subd. (b)(1);1 count 2); 

attempted forcible lewd acts upon a child by attempting to force M. to touch defendant’s 

penis the second time (§§ 288, subd. (b)(1), 664; count 3); forcible lewd acts upon a child 

by forcing M. to digitally penetrate defendant’s adult sister Ja.

2

(§ 288, subd. (b)(1); 

count 6); and sodomy of J., a child 10 years of age or younger, the first time (§ 288.7, 

subd. (a); count 10).3 Defendant was sentenced to an aggregate prison term of 25 years 

to life, plus six years, eight months. 

On appeal, defendant contends his conviction and sentence on count 10 violate the 

ex post facto clauses of the United States and California Constitutions because the 

evidence permitted an inference the offense may have occurred prior to September 20, 

2006, the effective date of section 288.7. He additionally contends he was denied a fair 

trial due to improper statistical testimony given by the prosecution’s expert witness. 

We agree with defendant that his conviction and sentence on count 10 must be 

reversed on ex post facto grounds. We accept the People’s concession that some of the 

expert’s testimony was improper, but conclude the testimony was harmless. 

In light of the reversal on count 10, we will remand for resentencing on the 

remaining counts. In all other respects, we affirm. 

1 Undesignated statutory references are to the Penal Code.

2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names or initials. No disrespect is intended. 

3 The disposition of the remaining counts is explained in detail below. 
3.

PROCEDURAL HISTORY

Defendant was charged in a first amended information with sodomy of M., a child 

10 years of age or younger (§ 288.7, subd. (a); count 1); forcible lewd acts upon a child 

by forcing M. to touch his penis the first time (§ 288, subd. (b)(1); count 2); forcible lewd 

acts upon a child by forcing M. to touch his penis the second time (§ 288, subd. (b)(1);

count 3); forcible lewd acts upon a child by forcing Ja. to touch M.’s penis (§ 288, 

subd. (b)(1); count 4); forcible lewd acts upon a child by forcing Ja. to orally copulate M. 

(§ 288, subd. (b)(1); count 5); forcible lewd acts upon a child by forcing M. to digitally 

penetrate Ja. (§ 288, subd. (b)(1); count 6); forcible lewd acts upon a child by penetrating 

M.’s anus with the “ ‘pink thing’ ” (§ 288, subd. (b)(1); count 7); forcible lewd acts upon 

a child by forcing M. to penetrate defendant’s anus with the “ ‘pink thing’ ” (§ 288, 

subd. (b)(1); count 8); child abuse of M. (§ 273a, subd. (a); count 9); sodomy of J., who 

was a child 10 years of age or younger, the first time (§ 288.7, subd. (a); count 10); 

sodomy of J., who was a child 10 years of age or younger, the second time (§ 288.7, 

subd. (a); count 11); forcible lewd acts upon a child by sodomizing J. the last time (§ 288, 

subd. (b)(1); count 12); and child abuse of J. (§ 273a, subd. (a); count 13). As to counts

2, 3, 4, 5, 6, 7, 8, and 12, the People alleged defendant committed the offenses against 

multiple victims. (§ 667.61, subds. (a), (e)(4), (j)(2).)

A jury found defendant guilty on counts 2, 6, and 10. Additionally, the jury found 

defendant guilty on count 3 of the lesser included offense of attempted lewd acts upon a 

child. (§§ 288, subd. (b)(1), 664.) The jury also found true the multiple victim 

enhancement. The jury found defendant not guilty on counts 1, 4, 5, and 12. The jury 

was unable to reach a unanimous verdict on counts 7, 8, 9, 11, and 13, and the court 

declared a mistrial on these counts.

When the matter came on for sentencing, counts 7, 8, 9, 11, and 13 were dismissed 

on motion by the People. Additionally, the multiple victim enhancement was found 

inapplicable and stricken. 
4.

On count 10, the court sentenced defendant to a term of 25 years to life. On each 

of counts 2 and 6, the court sentenced defendant to consecutive terms of two years, eight 

months. On count 3, the court sentenced defendant to a consecutive term of one year, 

four months. Accordingly, defendant was sentenced to an aggregate term of 25 years to 

life plus six years, eight months. 

FACTS

Defendant and Melissa M. were in a romantic relationship for approximately 11 to 

12 years, from 2002 to 2013. Beginning around 2005 or 2006, they worked for the same 

logistics company and frequently worked the same shift. Their relationship ended in 

August 2013 following an incident in which defendant “beat” Melissa, which later 

resulted in defendant’s incarceration. Following this incident, Melissa had no interaction 

with defendant other than during court proceedings. 

Melissa had two sons, J. and M. J. was born in May 2001, and M. was born in 

October 2002. Defendant was the boys’ stepfather, although M. believed defendant to be 

his biological father until defendant told M. otherwise in August 2013. 

I. J.’s Testimony

J. was 16 years old at the time of trial. He testified that defendant was in his life 

from the time he was approximately seven months old until the night before he began 

seventh grade. 

J. testified that defendant was physically abusive toward Melissa, J., and M. 

Defendant would hit J. with a variety of objects, but primarily used a homemade paddle. 

The beatings left bruises and scratches on J.’s body and once resulted in a split lip. At 

some point, defendant began disciplining the children by forcing them to eat ghost 

peppers, which J. described as the “hottest pepper[s] in the world.” J. regularly returned 

from school to find Melissa beaten, scratched, or with a black eye. On the night before J. 

started seventh grade, he awoke to see defendant beating his mother with a towel rack in 

the bathroom. 
5.

J. also testified that defendant “raped” J. and M. The first incident occurred when 

J. was “about five, maybe six” years old. Melissa was at work and J. and M. were at

home playing on their Xbox when defendant told them to come into his room.4 There, 

defendant pulled down his pants and the boys’ pants, and told them to bend over. He 

then sodomized J. from behind while J. was bent over the bed. Afterward, J. took his 

clothes and ran from the room, while M. remained behind. The second incident occurred 

when J. was approximately eight years old. He was watching television when defendant 

told him to come into the master bedroom. J. complied and defendant sodomized him 

again. J. did not recall additional details regarding this incident. J. denied that any 

further incidents of sodomy occurred. He did not recall telling a forensic interviewer 

about a third incident of sodomy. He did not recall whether he ever saw defendant 

sodomize M. 

Defendant told J. not to tell anyone about the sodomy, and J. was scared to do so. 

Eventually, M. told their grandmother he had been abused, and J. decided to reveal his 

own abuse. At the time of trial, J. lived with his grandfather and was no longer close 

with M. 

During cross-examination, J. confirmed he did not like defendant and was upset 

defendant beat his mother. He confirmed he wished to hurt and kill defendant for beating 

his mother and putting J. and M. “through hell.” 

II. M.’s Testimony

M. was 15 years old at the time of trial. He had a good relationship with 

defendant until he began to see defendant act violently toward his mother. M. then began 

to hate defendant. Defendant would hit M.’s mother and throw things at her. Defendant 

also hit M. and J. with a homemade paddle, a back scratcher, a switch, or his fist. 

4 According to J., his mother often went to work by herself while defendant stayed 

home. 
6.

M. also testified to sexual abuse by defendant. When M. was 11 or 12 years old, 

he and J. were playing a computer game when defendant asked M. to come into the 

hallway. Defendant told M. to touch defendant’s penis and threatened to hit M. if he did 

not comply. Defendant put M.’s hand on his penis and defendant also tried to touch M. 

Defendant stopped when he heard a noise and M. then went back into his own room. 

During this incident, a computer was on the floor, and defendant put on a video of a man 

and woman having sex. 

Approximately two months later, M. was in the living room watching television 

when defendant came in and began talking to him. Eventually, defendant moved M.’s 

hand near defendant. Defendant pulled his pants down and started to stand up. He tried 

to touch M.’s penis over his clothing. M. walked away, and soon thereafter his mother 

came home. 

On one occasion, defendant asked M. to put his mouth on defendant’s penis. M. 

did not do it. On another occasion, M. was in bed watching television with J., defendant, 

and defendant’s son Glen.5 Eventually, J. and Glen left the room and defendant tried to 

touch M. and told M. to touch defendant. M. could not recall what happened next. 

M. also testified to conduct that involved defendant’s adult sister, Ja.6 On one 

occasion, defendant called M. into the master bedroom, where defendant and Ja. were in 

bed. Defendant had on a shirt but no pants, and Ja. was under the blankets. Defendant 

told M. to close the door and go to Ja.’s side of the bed. Defendant was rubbing his 

penis. Defendant told Ja. to touch M.’s private parts, and she unbuttoned M.’s pants and 

touched him under his clothes. Defendant then told Ja. to suck M.’s private parts, which 

5 Glen is sometimes referred to in the testimony by his nickname, Galino. 

6

In his forensic interview, M. described Ja. as “mentally retarded.” Defendant 

testified that Ja. had a learning disability, which he attributed to her being born deaf. 

Defendant’s mother testified that Ja. was “mildly mentally challenged with a learning 

disability and a regression disorder” resulting from having “died for over seven minutes” 

during surgery when she was five years old. Ja. was deceased at the time of trial. 
7.

she tried to do. Defendant also made M. put his fingers inside Ja. Defendant then told 

M. to get out of the room. M. left the room and closed the door. 

A couple of weeks later, on the night before the first day of school, defendant and 

Melissa got into a big fight. At the time, Glen’s wife Jennifer was living with M. and his 

family. On the night of the incident, defendant and Jennifer were swimming while 

Melissa slept. Eventually, Jennifer and defendant went into Jennifer’s room. Melissa 

woke up and went looking for them, and found defendant naked in the closet in Jennifer’s 

room. Melissa got mad and told them both to get out. Defendant hit Melissa, eventually 

hitting her with a towel rack. M. cried and yelled at him to stop. Defendant said to 

Melissa, “Tell him. Tell him. Tell him how I raised your bastard sons.” Defendant then 

pushed M. into the living room, told him, “I’m not your real dad,” and told him the 

identity of his biological father. 

M. witnessed defendant using methamphetamine on three occasions. On one 

occasion, defendant asked M. if he wanted to try it and put a pipe to M.’s mouth. M. 

walked away. 

M. eventually moved in with his grandmother. One day, M.’s grandmother asked 

M., “Did [defendant] ever hurt you or touch you in any kind of way?” M. started crying 

and told his grandmother of the abuse. 

On cross-examination, M. acknowledged that he would like to see defendant 

locked up forever. M. stated that he did not hate defendant, because for most of M.’s life, 

defendant was his dad. M. also testified about fun family activities they did together. 

III. Law Enforcement Testimony

An officer with the Fresno Police Department took an initial statement from M. 

and his grandmother on November 18, 2014, and testified that M. reported two incidents 

of abuse that occurred while he lived with defendant. One incident involved Glen and Ja.

and occurred while M.’s mother was hospitalized for a surgery. M. reported that 

defendant tried to get M. to touch Ja.’s private parts but that M. refused. 
8.

An officer with the Fresno Police Department took an initial statement from J. on 

November 19, 2014,7 and testified that J. reported five separate instances of sexual abuse, 

as well as regular physical abuse. J. reported that defendant touched the boys’ genitals 

and anus while touching himself and also put his penis into J.’s anus. J. reported that the 

incidents occurred between October 2007 and April 2009. 

IV. Forensic Interviews

J. and M. underwent forensic interviews, recordings of which were played for the 

jury. 

In J.’s interview, J. reported that defendant sodomized him three times, with the 

first instance occurring when J. was approximately five years old. In the first instance, 

M. was present, and defendant also sodomized M. after he sodomized J. In the second 

instance, defendant told J. to bring M. into the room after defendant sodomized J. 

Although J. recalled a third instance of sodomy, he did not recall any of the surrounding 

details. 

In M.’s interview, M. reported that, when he was approximately nine years old, he 

and J. were playing a computer game when defendant pulled M. out of the room and 

showed M. pornography on a computer. Defendant pulled down his pants and tried to 

make M. touch his penis. M. kept pulling his hand away until defendant got mad and 

sent M. back to his room. On a second occasion, defendant took M.’s hand and made M. 

touch defendant’s penis. Defendant told M. to orally copulate him and M. refused. 

Defendant became angry and began to search for pornography on the computer. At that 

point, M.’s mother came out and became angry that M. was awake, so M. ran to his 

room. 

7 The officer testified that this information was told to her by “a young boy” whose 

name was confidential, and therefore not in her report or known to her. However, the 

parties stipulated the boy was J. Defendant’s assertion that the evidence does not 

establish the boy was J. is without merit. 
9.

M. also reported that defendant and Glen would do to Ja. what “the guys and the 

girls did in the videos.” On one occasion when M.’s mother had surgery and was away 

from home, M. heard Glen, Ja. and defendant in his mother’s bedroom. Ja. sounded like 

she was crying. M. accidentally opened the door and saw that Ja. was not crying and was 

under the covers. Defendant was partially on the bed, and was wearing sweatpants and 

no shirt. Glen was partially clothed and was standing by the closet. Defendant told M. 

they were doing “what the guys and the people in the movie were doing,” and made M. 

swear not to tell anyone. Ja. undid M.’s pants and defendant tried to take off M.’s boxers. 

Ja. touched M.’s penis and also orally copulated him. Defendant told M. to touch Ja., and 

defendant put M.’s hand on her “upper privates” and squeezed. Defendant put his fingers 

inside of Ja., and defendant then held M.’s hand and put it “in and out the inside of [Ja.]” 

in her “lower part.” Defendant then sent M. out of the room to watch Glen’s children. 

On another occasion, defendant used a “pink thing” that vibrated and was shaped 

like a penis to penetrate M.’s anus while defendant touched himself. On a separate 

occasion, defendant had M. put the pink thing in defendant’s anus while defendant 

touched himself. 

V. Expert Testimony

David Love testified for the People as an expert in the field of child sexual abuse 

accommodation syndrome (CSAAS) and the neurophysiology of trauma. He had not 

reviewed any reports related to the case, met with defendant or the victims, or been told 

any specifics about the case. 

Love identified five key areas of child sexual abuse accommodation syndrome: 

secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and/or 

unconvincing disclosure; and retraction. 

Love testified to various statistics regarding molested children. He explained that 

94 percent of molested children had a preexisting relationship with the offender. 

Additionally, a majority of molestations happen in the home or another location the child 
10.

normally occupies. Love explained that 74 percent of children in a particular study did 

not disclose molestation within one year after being been molested and 50 percent did not 

disclose within five years. Love also was familiar with children who waited at least 12 

years to disclose. In the same study, 42 percent of children had partial amnesia, and 20 

percent had total amnesia for a period of time. In one study of 320,000 children whose 

cases went to trial, researchers were able to identify only 1 percent of cases where 

information or evidence in the case files supported a conclusion that the report was false. 

Love acknowledged that the number of false reports may have been higher than 

identified, but opined that the number of instances “where kids lie or information is 

totally erroneous” was “certainly extremely low.” Love opined, based on his review of 

the relevant research, that it is rare for children to fabricate allegations of molestation. 

Love stated that tools had been developed to try to determine whether a child’s allegation 

was false, but those tools had been determined to be insufficiently accurate to be allowed 

into evidence in court proceedings. 

VI. Defense Case

Defendant testified on his own behalf and denied that he touched J. or M. He 

acknowledged that he disciplined the boys by spanking them with a paddle. “More often 

than not,” he disciplined the children because Melissa asked him to. He disciplined the 

boys approximately once a month. 

Defendant explained that he and Melissa often worked together until he went on 

disability in 2012. At that point, defendant began drinking heavily. Defendant 

acknowledged using methamphetamine approximately once per month, but denied ever 

trying to make M. smoke methamphetamine. 

Defendant acknowledged that Melissa had surgery in approximately May of 2013, 

and that Ja. visited the house while Melissa was in the hospital. According to defendant, 
11.

Ja. was accompanied by defendant’s mother and his niece, Nakita.8 Defendant’s mother

left the house at some point that day, and Ja. and Nakita stayed behind. Also present 

were defendant’s son Glen, and Glen’s wife, Jennifer. Defendant denied molesting Ja., 

letting M. touch Ja., or making Ja. touch M. 

Defendant acknowledged that he had sex with Glen’s wife Jennifer on and off 

over the course of approximately three years. Glen also asked Jennifer to have a “threeway” with defendant and Glen. 

Melissa testified that she did not strike or discipline the children or ask defendant 

to do so. She acknowledged that she had surgery in May 2013 that resulted in her being 

hospitalized for three days. At that time, Glen and Jennifer were living with Melissa and 

defendant. She further testified that defendant used methamphetamine daily from 2005 

through 2013. At the time of trial, Melissa had guardianship of Glen and Jennifer’s two 

children. 

Melissa’s father testified that he previously got along well with defendant and had 

not seen visible injuries on the children, other than red welts on J.’s buttocks. 

Defendant’s mother Pamela testified that she took Ja. and Nakita to defendant’s 

house on the day Melissa had surgery and left them there with defendant, Glen, Jennifer, 

Glen and Jennifer’s two children, and Jennifer’s daughter from a different relationship. 

She did not notice anything wrong with Ja. when she picked her up. Pamela also testified 

that she had seen Melissa physically discipline the boys, as well as one of Glen and 

Jennifer’s daughters, by hitting them with the heel of her hand. Pamela denied that 

defendant had a sexual relationship with Ja. but testified it was possible he had a sexual 

relationship with Jennifer and that he and Glen requested a “three-way” with Jennifer. 

8 Nakita is sometimes referred to in the testimony as Nicki. 
12.

Nakita testified for the defense and identified defendant and Ja., respectively, as 

her brother and sister. Nakita testified that she had seen Melissa hit the boys with the 

heel of her hand and kick them with her boot, and that Melissa had threatened to beat 

Nakita up the week before Melissa had surgery. Nakita also testified that defendant and 

Ja. did not leave her sight on the day of Melissa’s surgery. 

VII. Rebuttal Evidence

Jennifer testified that she married Glen in 2012 and remained married to him at the 

time of trial, although she hated him. She, Glen, and their two children lived with 

defendant, Melissa, J., and M. off and on for approximately two and a half years. During 

that time, Jennifer used methamphetamine daily and had used methamphetamine with 

defendant. 

Jennifer testified that, on one or two occasions, she had walked in on Glen orally 

copulating Ja. while defendant watched. In 2011 or 2012, Jennifer had a “threesome” 

with defendant and Glen. On another occasion, Jennifer orally copulated defendant, and 

Melissa walked in on them. On another occasion, defendant told Jennifer that when her 

daughters were old enough, “he would show them it was okay to have intercourse with 

family members.” Glen was present for this statement and did not object. 

At the time of trial, Jennifer was in an inpatient drug and alcohol rehabilitation 

program. She lived with Melissa for approximately two weeks immediately prior to 

entering this program. 

DISCUSSION

I. Ex Post Facto Challenge

Defendant contends his sentence of 25 years to life on count 10, imposed pursuant 

to section 288.7, subdivision (a), violates the ex post facto clauses of the United States 

and California Constitutions because the evidence permitted the jury to find that the 

offense occurred before September 20, 2006, the effective date of section 288.7. Upon 

review of the evidence, we cannot conclude beyond a reasonable doubt that the offense 
13.

alleged in count 10 occurred after the effective date of section 288.7. Accordingly, we 

must vacate the conviction and sentence on this count. 

A. Applicable Law

“Both the California and United States Constitutions proscribe ex post facto laws. 

(U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.)” (People v. Alvarez (2002) 100 

Cal.App.4th 1170, 1178 (Alvarez).) “A statute violates the prohibition against ex post 

facto laws if it punishes as a crime an act that was innocent when done or increases the 

punishment for a crime after it is committed.” (People v. White (2017) 2 Cal.5th 349, 

360; accord, Collins v. Youngblood (1990) 497 U.S. 37, 41-42.)

Section 288.7 became effective on September 20, 2006, and “created a new 

offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, 

oral copulation, or sexual penetration of a child who is 10 years of age or younger.”

(People v. Rojas (2015) 237 Cal.App.4th 1298, 1306; see Stats. 2006, ch. 337, § 9.) 

“Therefore, any application of section 288.7 to conduct that occurred prior to 

September 20, 2006, is a violation of the state and federal ex post facto clauses.” (Rojas,

at p. 1306.) 

To avoid an ex post facto violation, the People must prove to the jury that the 

defendant committed the offense on or after September 20, 2006, the effective date of 

section 288.7. (See Rojas, supra, 237 Cal.App.4th at p. 1306; People v. Hiscox (2006) 

136 Cal.App.4th 253, 260 (Hiscox).) Where the jury was not instructed to find that an 

offense occurred on or after the effective date of the statute, and did not, in fact, make 

such a finding, we consider whether the evidence “leaves no reasonable doubt” the 

offense occurred on or after that date. (Hiscox, at p. 261; see Rojas, at p. 1306.) A 

reviewing court may not “infer that certain acts probably occurred after that date,” or 

“hypothesize . . . what dates might be attached to certain acts based on ambiguous 

evidence.” (Hiscox, at p. 261.)
14.

An ex post facto violation resulting in an unauthorized sentence can be raised on 

appeal even where the defendant failed to object below. (See People v. Dotson (1997) 16 

Cal.4th 547, 554, fn. 6.)

B. Analysis

Here, the first amended information alleged that count 10 occurred “[o]n or about 

May 17, 2006 through May 16, 2008,” when defendant engaged in sodomy with J. for the 

first time. The verdict form asked the jury to determine whether defendant committed 

this offense, as alleged in the first amended information. The jury was not instructed that 

it must find the relevant act occurred on or after September 20, 2006, in order to find 

defendant guilty, and the verdict form did not require the jury to make such a finding, or 

any other finding with respect to the timing of the alleged act.9 

The evidence at trial was not conclusive with respect to the date the sodomy 

alleged in count 10 occurred. J. testified defendant’s first act of sodomy occurred when J. 

was approximately five years old. Because J. was born in May 2001, this testimony 

would allow a finding that the first act of sodomy took place sometime between May 

2006 and May 2007, a period that falls both before and after the effective date of section 

288.7. J. also told a forensic interviewer that the first instance of sodomy occurred when 

he was five years old, probably after he started school. This evidence likewise does not 

establish the offense was committed on or after September 20, 2006. It is therefore 

plausible that the jury found defendant guilty based on an act that occurred before 

September 20, 2006.

9 The court indicated it was disinclined to instruct the jury with CALCRIM No. 207,

which informs the jury the People are not required to prove the offense took place on the 

date or dates alleged. (CALCRIM No. 207.) The People subsequently withdrew their 

request for this instruction. 
15.

As the People point out, the jury also was presented with evidence to suggest the 

first act of sodomy may have occurred well after September 20, 2006. J. told an officer 

that defendant began molesting the children in October 2007, and later progressed to 

sodomizing him. J. also told the forensic interviewer that the second incident of sodomy

occurred approximately a year and “a few months” after the first, and later testified the 

second incident occurred when he was approximately eight years old. This evidence, if 

believed, would suggest the first act of sodomy occurred in 2007 or 2008. The jury could 

have relied on this evidence to conclude the first instance of sodomy occurred after 

September 20, 2006. However, the jury was not asked to make such a finding, and we 

have no basis to conclude it did so. Nor may we pick and choose among conflicting 

pieces of evidence to hypothesize as to when the offense occurred. (Hiscox, supra, 136 

Cal.App.4th at p. 261.) It is not enough that the offense possibly, or even probably, 

occurred after the effective date. (Ibid.; accord, Rojas, supra, 237 Cal.App.4th at 

p. 1307.) 

Because we cannot conclude beyond a reasonable doubt that defendant was found 

guilty based on an act that occurred on or after September 20, 2006, we must reverse the 

conviction and sentence on count 10.

II. Expert Witness Testimony

Defendant contends Love’s expert testimony on statistical data involving child 

molestation victims improperly suggested J. and M. were truthful in their allegations. 

The People concede Love was improperly permitted to testify regarding the infrequency 

with which children fabricate molestation allegations, but argue the testimony was 

harmless. As we explain, we accept the People’s concession as to the testimony 

regarding fabrication, but conclude Love’s remaining statistical testimony was 

permissible. Regardless, we conclude all of Love’s statistical testimony was harmless.

A. Forfeiture

Defendant did not object to Love’s statistical testimony in the trial court.
16.

In the trial court, Love was disclosed as a witness only a few days prior to trial, 

and defendant objected to his testimony on the basis of untimely disclosure. (§§ 1054.1, 

1054.7.) The trial court refused to disallow Love’s testimony, but offered defendant the 

opportunity to continue trial, which would have required a waiver of defendant’s speedy 

trial rights. Defendant declined a continuance. 

Prior to Love’s testimony, the defense lodged a continuing objection to Love 

being permitted to testify, but not to any of his specific testimony. During Love’s 

testimony, the defense objected only once, to testimony not at issue here. 

Following the close of evidence, the court instructed the jury based on CALCRIM 

No. 306 that the People failed to timely disclose Love as a witness, and that the jury 

could consider the late disclosure in evaluating the weight and significance of his 

testimony. 

Defendant made no specific objection to the testimony he now complains of, and 

the issue is therefore forfeited. (See People v. Stevens (2015) 62 Cal.4th 325, 333 [“the 

failure to object to the admission of expert testimony or hearsay at trial forfeits an 

appellate claim that such evidence was improperly admitted”].) Nonetheless, the People 

do not ask us to dispose of the issue on forfeiture grounds, and instead address the claim 

on the merits. Furthermore, defendant urges us to reach the issue on several grounds, 

including ineffective assistance of counsel. We also note that two relevant Court of 

Appeal cases regarding the admissibility of statistical evidence of fabrication were 

decided after defendant’s trial. (People v. Julian (2019) 34 Cal.App.5th 878 (Julian); 

People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson).) We will therefore exercise our 

discretion to address the issue on the merits. (See People v. Williams (1998) 17 Cal.4th 

148, 161-162, fn. 6.)

B. Applicable Law

We review decisions regarding the admissibility of expert testimony for abuse of 

discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) Expert 
17.

testimony regarding CSAAS has long been held admissible in cases involving child 

sexual abuse, although such testimony is subject to certain limitations. (See McAlpin, at 

pp. 1300-1301.) We review the relevant case law.

In People v. Bowker (1988) 203 Cal.App.3d 385, 389-390 (Bowker), an expert 

witness testified to the “five stages” of CSAAS, the difficulties facing child witnesses, 

and the importance of believing child victims. The Court of Appeal held that CSAAS 

evidence could not be used as a “predictor of child abuse,” but was potentially 

permissible to explain that a certain characteristic or behavior is “not inconsistent with a 

child having been molested.” (Id. at p. 393.) The court characterized as improper 

“ ‘general’ testimony describing the components of the syndrome in such a way as to 

allow the jury to apply the syndrome to the facts of the case and conclude the child was 

sexually abused.” (Ibid.) Instead, the court held that such testimony must be offered “to 

rebut a defendant’s attack on the credibility of the alleged victim(s)” by, for example, 

rebutting a myth or misconception suggested by the evidence. (Id. at pp. 393-394,

fn. omitted.) The court concluded the expert’s testimony regarding the credibility of 

child victims was improper, as was his testimony providing a predictive “ ‘scientific’

framework” the jury could use to evaluate the facts of the case and to conclude abuse had 

occurred. (Id. at pp. 394-395.) 

In McAlpin, a police officer testified as an expert in child molestation 

investigations that it was not unusual for a parent to refrain from reporting a known 

molestation of his or her child. (McAlpin, supra, 53 Cal.3d at pp. 1298-1299.) Our 

Supreme Court analogized such testimony to expert testimony on common reactions of 

rape victims and sexual molestation victims, which the court noted is admissible to 

rehabilitate a complaining witness whose credibility has been impeached by the 

suggestion that his or her conduct after the incident was inconsistent with rape or 

molestation. (Id. at pp. 1300-1301.) Citing with approval to Bowker, supra, 203 

Cal.App.3d at pages 390 through 394, and other appellate cases, the high court held such 
18.

testimony is admissible to correct “ ‘commonly held misconceptions’ ” about abuse and 

to explain witness behavior. (McAlpin, supra, at pp. 1300-1301.) Accordingly, the court 

held the officer’s testimony was admissible for the limited purpose of rehabilitating the 

credibility of the victim’s mother, who had delayed reporting the molestation of her 

daughter. (Id. at p. 1302.) 

In Wilson, an expert witness testified regarding CSAAS, including the five 

elements of CSAAS and common myths about child sexual abuse. (Wilson, supra, 33 

Cal.App.5th at p. 566.) The witness “explained that CSAAS is not a tool to determine 

whether a child has been abused.” (Ibid.) However, the witness also testified to statistics 

regarding false allegations, including a study in which the incidence of false allegations 

was approximately 4 percent. (Id. at p. 568.) The witness testified to other studies, 

which found false allegations in 1 to 6 percent of cases. (Ibid.) The witness opined that 

false allegations happen infrequently or rarely and, in his own experience, he had come 

across only two cases in which he believed a child falsely alleged sexual abuse. (Ibid.) 

The Court of Appeal concluded this testimony had the practical effect of suggesting to 

the jury there was an overwhelming likelihood the testimony of the victims was truthful 

and, in so doing, improperly invaded the province of the jury to draw the ultimate 

inferences from the evidence.10 (Wilson, at p. 570.) Additionally, the evidence was not 

helpful to the jury in determining whether the particular allegations before it were false, 

and the evidence was therefore irrelevant and more prejudicial than probative. (Id. at 

p. 571.) Accordingly, the Court of Appeal determined the admission of the evidence 

constituted an abuse of discretion. (Ibid.) 

10 The court reviewed cases from other jurisdictions that reached the same 

conclusion in similar circumstances. (Wilson, supra, 33 Cal.App.5th at pp. 568-570.) 
19.

Julian involved the same expert witness as Wilson, supra, 33 Cal.App.5th at page 

566, who gave similar testimony regarding CSAAS and more extensive testimony 

regarding the infrequency of false allegations. (Julian, supra, 34 Cal.App.5th at pp. 882-

884.) Relying on McAlpin and Bowker, the Court of Appeal concluded the statistical 

testimony regarding false allegations was not admissible. (Id. at pp. 885-886.) 

Additionally, relying on cases from other jurisdictions, the Julian court concluded the 

statistical testimony on false allegations supplanted the jury’s decision on whether the 

victims were credible, and thereby deprived the defendant of a fair trial. (Id. at pp. 886-

887.) 

C. Analysis

The People concede Love was improperly permitted to testify regarding the 

infrequency of false molestation allegations by children. We accept the People’s 

concession that this testimony was improperly admitted under the reasoning of Wilson,

supra, 33 Cal.App.5th 559, and Julian, supra, 34 Cal.App.5th 878.

Defendant also challenges Love’s remaining statistical testimony regarding 

victims of molestation, including that: 94 percent of molested children had a preexisting 

relationship with the offender; a majority of molestations happen in the home or another 

location the child normally occupies; 74 percent of children in a particular study did not 

disclose molestation within one year after having been molested and 50 percent did not 

disclose within five years; some children waited at least 12 years to disclose; and 42 

percent of children in a particular study had partial amnesia, and 20 percent had total 

amnesia for a period of time. Like the testimony regarding false reporting, defendant 

argues this testimony improperly bolstered the complainants’ credibility. The People do 

not address this argument.

We disagree with defendant’s assessment that this statistical evidence improperly 

suggested J. and M. were telling the truth. This evidence did not suggest the molestation 

allegations were true. Additionally, Love testified he did not review any of the facts of 
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this case. The jury was instructed that Love’s testimony concerning CSAAS was not 

evidence defendant committed any of the crimes charged against him, and could only be 

used in deciding whether J.’s and M.’s conduct “was not inconsistent with the conduct of 

someone who has been molested, and in evaluating the believability of their testimony.” 

The jury thus was not, as defendant suggests, improperly presented with a 

“ ‘ “scientific” ’ framework into which [it] could pigeon-hole the facts of the case.” 

(Citing Bowker, supra, 203 Cal.App.3d at p. 395.) 

Furthermore, our Supreme Court has held that this type of evidence is admissible 

for the limited purpose of evaluating whether a complainant’s conduct was inconsistent 

with being a victim of abuse. (McAlpin, supra, 53 Cal.3d at pp. 1300-1302.) The jury 

was so instructed. We therefore conclude the statistical testimony (aside from the 

testimony regarding false allegations) was permissible to explain J.’s and M.’s behavior 

following the molestation and to show their behavior was not necessarily inconsistent 

with having been abused. (Ibid.; accord, People v. Wells (2004) 118 Cal.App.4th 179, 

187-190 [CSAAS testimony is admissible so long as it is not used to show sexual 

molestation actually happened, and is used for the limited purpose of disabusing a jury of 

misconceptions it might have about how a child reacts to molestation such as delayed 

reporting of the alleged molestation].) Indeed, we are precluded from deciding 

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

Accordingly, although Love’s testimony regarding the incidence of fabrication 

was improper, the trial court did not abuse its discretion in admitting Love’s other 

statistical testimony regarding the behaviors of child sexual abuse victims. Regardless, as 

we explain below, the admission of Love’s statistical testimony was harmless under any 

standard of review.

D. Prejudice

The standard of prejudice for evaluating the effect of improperly admitted CSAAS 

testimony is unresolved. In Wilson, the court rejected the defendant’s argument that such 
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error should be evaluated under the harmless beyond a reasonable doubt standard of 

Chapman v. California (1967) 386 U.S. 18, noting that our Supreme Court had applied 

the standard of People v. Watson (1956) 46 Cal.2d 818, 836, in similar circumstances. 

(Wilson, supra, 33 Cal.App.5th at p. 571.) In contrast, in Julian, the court reversed on the 

ground that the expert’s testimony regarding the infrequency of false allegations denied 

the defendant a fair trial and was prejudicial under any standard. (Julian, supra, 34 

Cal.App.5th at pp. 886, 889-890.) We need not resolve the applicable standard here 

because Love’s testimony was harmless, even under the more stringent Chapman

standard. Defendant was not denied a fair trial, and we are convinced beyond a 

reasonable doubt that the jury would have rendered the same verdict, even absent Love’s 

erroneously admitted testimony. (See People v. Merritt (2017) 2 Cal.5th 819, 831 [“We 

must determine whether it is clear beyond a reasonable doubt that a rational jury would 

have rendered the same verdict absent the error.”]; People v. Pearson (2013) 56 Cal.4th 

393, 463 [the relevant inquiry under Chapman is “ ‘ “whether the . . . verdict actually 

rendered in this trial was surely unattributable to the error.” ’ ”].) 

Love’s testimony on false allegations during direct examination was brief, 

particularly in the context of his remaining CSAAS testimony and the rest of the 

prosecution’s case. His testimony on other statistics likewise was brief. Although 

defense counsel addressed the statistics regarding false allegations at length on crossexamination, she did so in a manner that cast doubt on the ability of the studies to 

actually determine whether a particular claim was false.11 The prosecution briefly 

referenced Love’s statistical testimony in closing argument: “[Love] explained that most 

kids don’t usually fabricate these types of things.” However, defense counsel responded 

11 In contrast, in Julian, defense counsel’s “questions about multiple studies only 

opened the door to a mountain of prejudicial statistical data that fortified the prosecutor’s 

claim about a statistical certainty that defendants are guilty.” (Julian, supra, 34 

Cal.App.5th at p. 889.)
22.

that Love “obviously [had] a little bias,” and that his testimony was “based on 

quicksand.” Defense counsel also pointed out that the researchers “start out by believing 

any child” who reports sexual abuse and assume those allegations are true if the 

allegations reach a certain point in the court process. The brief nature of Love’s 

statistical testimony and defense counsel’s targeted cross-examination and argument 

support a finding of harmless error.

Most significant to our analysis, however, is the jury’s verdict itself. The jury 

found defendant guilty as charged on three counts involving sexual abuse, and guilty on 

one count as a lesser included sexual offense. However, the jury found defendant not 

guilty on four counts involving sexual abuse.12 The not guilty verdicts make clear that 

the jury did not improperly rely on Love’s testimony to resolve the witness’s credibility 

or presume defendant was guilty based on statistical probabilities. Rather, the jury 

fulfilled its responsibility to determine witness credibility and, in so doing, determined 

that some of the sexual allegations made by J. and M. were not proved beyond a 

reasonable doubt. They did so even in the face of testimony by Love that false 

allegations are extremely rare. Had the jury understood Love’s testimony to mean that J. 

and M. were telling the truth and that defendant was lying, or had Love’s testimony truly 

invaded the jury’s province to decide the witness’s credibility, the jury could not have 

acquitted defendant on these counts. We therefore are convinced beyond a reasonable 

doubt that the verdict actually rendered was not attributable to the erroneous admission of 

Love’s testimony.

The error was harmless.

12 Additionally, the jury hung on three counts involving sexual abuse and two counts 

involving child abuse. 
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DISPOSITION

The conviction and sentence on count 10 are reversed and the matter is remanded 

for resentencing on the remaining counts. In all other respects, the judgment is affirmed.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

MEEHAN, J.