Filed 4/17/23 P. v. Mondragon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO RAMIREZ 

MONDRAGON,

Defendant and Appellant.

 H047341

 (Santa Clara County

 Super. Ct. No. F1870372)

Defendant Fernando Ramirez Mondragon was convicted by a jury of multiple 

counts of committing lewd and lascivious acts on two children—his stepdaughter and her

cousin. (Former Pen. Code, § 288.)1 On appeal, he argues that the trial court erred by 

admitting insufficiently authenticated Facebook messages that were not adoptive 

admissions, instructing the jury that it could consider evidence of any charged offense as 

evidence of his propensity to commit other charged offenses, and instructing the jury that 

it could consider expert testimony as to Child Sexual Abuse Accommodation Syndrome 

(CSAAS) to evaluate the witnesses’ believability. Mondragon further argues that the 

prosecutor committed misconduct by vouching for one of the complaining witnesses, that 

1 Unspecified statutory references are to the Penal Code.
2

cumulative error requires reversal of his convictions, and that his fines and fees must be 

stayed because of his inability to pay. We affirm the judgment.

I. BACKGROUND

A. The Operative Information

On December 18, 2018, the Santa Clara County District Attorney filed an 

amended information charging Mondragon with five counts of committing a lewd and 

lascivious act on a child (victim S.D.) under the age of 14 by force, violence, duress, 

menace, or fear (former § 288, subd. (b)(1), amended by Stats. 1995, ch. 890, § 1; 

counts 1-5), two counts of committing a lewd and lascivious act on a child (victim S.D.)

under the age of 14 or 15 (former § 288, subd. (c)(1), amended by Stats. 1998, ch. 925, 

§ 2; counts 6-7), and one count of committing a lewd and lascivious act on a child (victim 

H.D.) (former § 288, subd. (a), amended by Stats. 1998, ch. 925, § 2; count 8). Counts 1 

through 5 were alleged to have been committed between January 16, 1997, and 

January 15, 2003; counts 6 and 7 were alleged to have been committed between 

January 16, 2003 and January 15, 2005; and count 8 was alleged to have been committed 

between January 1, 2000 and December 31, 2003. As to all counts, it was alleged that 

Mondragon had been convicted in the present case or in another case of committing an 

offense against multiple victims within the meaning of the “One Strike” law (§ 667.61, 

subds. (b) & (e)). 

B. The Trial

1. Counts 1-7

When N.H. first met Mondragon, N.H. already had three daughters from a prior 

relationship, including S.D., the middle child, who was born in 1989.2 N.H. married 

Mondragon in 1996, and the family moved with N.H.’s mother to a house in Gilroy. 

2 S.D. was 30 years old at the time of Mondragon’s trial. 
3

Both bathrooms were on the first floor, and there were two bedrooms on each floor. 

N.H.’s mother stayed in one of the downstairs bedrooms, and S.D. and her two sisters

stayed in one of the upstairs bedrooms. 

In 1997, Mondragon stopped working for about a year because he injured his 

hand. Mondragon would often be left home alone with the children, though N.H.’s 

mother was also “always there” and was “in and out all day.” N.H.’s mother helped dress 

the children in the morning, sent them to school, and was usually at home when the 

children returned. N.H. started work at a barbershop on weekdays at 9:00 a.m. and did 

not get back until 6:30 p.m., and she also worked on Sundays. As N.H. was often busy, 

she “always” had someone helping with the children. Other relatives and close friends, in 

addition to N.H.’s mother, sometimes stayed at the house. Starting in 1998, Mondragon 

started to work at the same barbershop as N.H. 

N.H. thought that Mondragon treated S.D. differently from her two sisters. 

Mondragon always said that S.D. was the “dirtiest” and “laziest” out of N.H.’s three 

daughters, and he was always picking on her and teasing her; S.D. was more rebellious 

and always had an attitude. N.H. and Mondragon had three other children together, born 

in the first three years of their marriage. 

S.D. was afraid of Mondragon. He yelled and physically disciplined her—pushing 

her, spanking her, and pinching her hard enough to leave bruises. Mondragon also 

singled S.D. out and “nitpick[ed]” at her—he always told her to clean and take care of her 

brothers, and she was tasked with more chores than her siblings. S.D. complained to 

N.H. and told her that Mondragon was physically hitting her.3 Sometimes Mondragon 

would hit her until she cried, and he would tell her to go upstairs to her bedroom so 

nobody would see her crying. 

3 N.H. testified that she never saw injuries on S.D., and S.D. never told her about 

any physical abuse until S.D. disclosed her abuse to the police. 
4

Mondragon first touched S.D. inappropriately when she was seven years old, 

around when Mondragon and N.H.’s first child was born. S.D. had just gotten out of the 

shower. Mondragon was waiting in S.D.’s bedroom and had pornographic magazines on 

the bed. He tried to show them to S.D. and asked her if “[her] boobs [look] like this?” 

This made S.D. uncomfortable, but Mondragon persisted, telling her, “Let me see. Take 

off your towel.” When she didn’t comply, Mondragon “forcefully [took] it off.” S.D. 

tried to cover herself using her hands, but Mondragon moved her hands away and 

“grabb[ed]” her breasts, saying, “Look, . . . you’re growing. . . . [H]ow fast you’re 

growing.” He told S.D. that she would have “really big boobs when [she grew] up.” 

Mondragon made S.D. bend over so he could examine her buttocks, and he spread her 

buttocks apart. S.D. cried. Mondragon seemed “nervous, but he was trying to be kind 

about it.” He told S.D. to stop crying and that what he was doing was “okay” because he 

was her “dad.” But he also told her not to tell her mother. Before he left, Mondragon 

told S.D. to get changed and to “hurry up to start cleaning.” 

The next week, Mondragon similarly accosted S.D. after she emerged from the 

shower. These post-shower incidents continued on a weekly basis for the next two years, 

“as many times as he [could] do it without [S.D.’s mother] being around.” Mondragon 

would either wait upstairs for S.D. to finish showering, or he would enter the bathroom. 

Sometimes he would watch S.D. shower. S.D. initially tried to avert contact in her 

bedroom by changing her clothes in the bathroom, but Mondragon would “always try to 

find his way” to open the door while she was changing. S.D. also tried to run past 

Mondragon, but he would either stop her or yell at her if she made it past him. 

Oftentimes, Mondragon used S.D.’s younger half-brother as an excuse to intrude 

on her in the bathroom: he would open the door to send in her brother, ostensibly so S.D. 

could bathe the younger child; Mondragon would stare at S.D. while she was naked and 

sometimes touch her. 
5

Mondragon would sometimes take S.D. into the other bathroom, next to the 

kitchen. He would hit and yell at her to get her into the bathroom, and he would shut the 

door and lock it once inside. Mondragon would make her take her shirt off and would 

touch her breasts, telling her he needed to see if her breasts had grown. Mondragon 

would also try to take S.D.’s pants off, but she would fight him off and yell at him. 

Mondragon would yell back that S.D. was the one who was doing something wrong 

because she should not be yelling at him. S.D. estimated that Mondragon pulled her into 

the kitchen bathroom “a good 20 times” over a period of several years. 

Starting when S.D. was around 10 years old, Mondragon began to penetrate her

vagina with his fingers. Typically, Mondragon would run upstairs in the morning, using 

the opportunity to catch S.D. still in bed, hit her buttocks, and push his fingers into her 

vagina “really hard.” By that time, S.D.’s older sister was using another bedroom, and 

S.D.’s younger sister often woke earlier. Even though S.D. was always clothed, 

Mondragon would use enough force that even over her underwear and pants, his fingers 

would penetrate through.

4

 S.D. tried to prevent Mondragon from touching her by getting

up as soon as she heard his footsteps on the stairs. Or, if she was already awake, she tried

to walk past him. S.D. would shout at Mondragon to stop touching her, but he would 

either laugh or walk away. Sometimes, Mondragon would strike and threaten S.D.; he 

said that he would hurt her mother and her sisters, and he asked her if she wanted her 

younger siblings to grow up without a father. S.D., who felt abandoned by her own 

father, believed Mondragon’s threats. These incidents continued until S.D. was in high 

school. 

4

In 2017, S.D. told officers that there was no “skin-to-skin” contact between 

Mondragon and herself. 
6

Mondragon had S.D. drink alcohol for the first time when she was 12 years old. 

He regularly encouraged her to get drunk, giving her “Mad Dog” and telling her it would 

get her drunk faster, and then touching her “the most” once she was drunk and less able 

to resist as he groped her breasts. S.D. drank “very often,” perhaps every other week. 

Several times when S.D. was 13 or 14 years old, S.D. would drink alone with 

Mondragon. Mondragon would stay sober and tell S.D. that if she wanted to drink, the 

only way for her to do so would be in his room so her sisters would not see. S.D. 

sometimes used physical force or raised her voice to resist Mondragon’s advances, but no 

one ever came into the room. 

By the time S.D. turned 13 years old, the shower incidents were less frequent, as 

Mondragon was working more and was going to school. Mondragon still grabbed her 

breasts and buttocks every few weeks when S.D. was drunk or N.H. was not around. 

S.D., however, was better able to physically resist Mondragon, and by the time she was 

16 or 17 years old, she was more aggressive and assertive in fighting off Mondragon’s 

advances. Mondragon stopped touching S.D. inappropriately when she was 17 or 18 

years old. 

N.H. had always had her suspicions about Mondragon, but he would “swear on 

[their] children’s lives that he was not doing anything.” Mondragon repeatedly told N.H. 

that she was crazy for thinking he was abusing her children and that she needed help. 

N.H., however, noticed that Mondragon was always walking out of the bathroom where 

S.D. was, or knocking on the bathroom door when S.D. was in the bathroom. One time, 

when S.D. was five years old, Mondragon told N.H. that S.D. had had a fever and had 

thrown up, and when N.H. went upstairs, S.D. was not wearing a shirt. Mondragon said 

that he had put S.D.’s shirt in the wash, but N.H. did not think that S.D. had a fever. S.D. 

also said that “ ‘something went in my mouth.’ ” N.H. asked Mondragon what he did, 

and he said that N.H. was “sick” and that if she thought he had done something wrong, 
7

she should go ahead and call the police. Another time, N.H. came in and saw Mondragon 

banging on the bathroom door, and N.H. could hear S.D. crying “No. No. Papi.” 

S.D. never told N.H. that Mondragon was touching her inappropriately, even 

though N.H. sometimes asked her. Usually when N.H. asked S.D. about Mondragon, he 

was nearby—Mondragon would stare at S.D. and tell her not to “fucking say anything.” 

2. Count 8

H.D., born in 1991, was S.D.’s younger cousin.5 H.D. and S.D. were “very close” 

growing up. H.D. typically saw S.D. every weekend and would go to S.D.’s house in 

Gilroy to play. H.D. considered Mondragon an uncle. 

At age ten or eleven, H.D. spent a night at S.D.’s house and fell asleep in the 

living room on a mattress on the floor.6 S.D. was sleeping beside her. H.D. woke up to 

Mondragon trying to touch her breasts over her clothes. H.D. turned aside to try get 

Mondragon to stop, but he “kept trying to go again.” H.D. turned to her other side, and 

Mondragon stopped and backed away. Mondragon’s brother, who was in the hallway,

asked Mondragon if “they” were asleep, and Mondragon answered no. 

S.D. recalled the incident; she remembered that she had seen Mondragon come out 

of his room, so she tried to cover her body to keep him from touching her. S.D. then saw 

Mondragon try to touch H.D.’s breasts. Mondragon stopped when H.D. moved, waited a 

few seconds, then touched H.D. again. 

The next morning, H.D. told S.D. that Mondragon had touched her overnight. 

S.D. suggested that H.D. tell N.H., so they went to tell N.H. together. H.D. told N.H. that 

Mondragon had stood over her and had tried to touch her. N.H. appeared upset and told 

H.D. to tell her mother, but H.D. was too scared to say anything to her mother. 

5 H.D. was 27 years old at the time of Mondragon’s trial.

6

In an earlier interview, H.D. said that she was 12 years old when the incident 

occurred. 
8

S.D. wanted to see what would happen when H.D. disclosed her abuse. N.H. 

confronted Mondragon, and S.D. heard them arguing in the bedroom. But nothing more 

happened to Mondragon, which disappointed S.D. and kept her from disclosing to N.H. 

her own experience of abuse. 

N.H. recalled that S.D. and H.D. had approached her to tell her that Mondragon 

had molested H.D. N.H. told H.D. to tell her mother, and she also told H.D.’s mother 

herself. H.D.’s mother told N.H. not to contact the police because she thought her 

husband would kill Mondragon. 

H.D. did not tell anyone else about what happened in the subsequent months, and 

she continued to go to S.D.’s house afterwards. H.D. tried to keep her distance from 

Mondragon. She still slept over at S.D.’s house, but she and S.D. would sleep upstairs 

and make sure that the door was locked, even though they did not discuss the incident. 

H.D. and S.D. maintained a friendship as they became older, but S.D. never disclosed to 

H.D. that Mondragon had ever touched her. H.D. later learned that S.D. had gone to the 

police and had reported that Mondragon had abused her. At the time, H.D. had not told 

her parents about what Mondragon did to her. About six months before Mondragon’s 

trial, she told her parents about what happened with Mondragon. 

3. S.D.’s Disclosure to N.H. and Mondragon’s Move to Mexico 

In late 2010, one of S.D.’s sisters disclosed that Mondragon’s brother had been 

abusing her. After her sister’s disclosure, S.D. saw that her sister was being supported in 

her accusation, so she disclosed to N.H. that she had been abused by Mondragon. By that 

time, S.D. was 22 years old.7

7 During her initial interview with police and at the preliminary hearing, S.D. said 

that she told her mother about Mondragon’s abuse when she was 17 or 18 years old. 
9

Afterwards, N.H. and S.D. confronted Mondragon. S.D. told Mondragon that he 

had to tell N.H. what he used to do to her. S.D. described how he used to take advantage 

of her—touching her breasts, watching her shower, slapping her buttocks, and penetrating 

her with his fingers. Mondragon did not deny S.D.’s accusations but started crying, fell 

to his knees, and apologized. He asked for forgiveness, “admitting everything,” and

begged S.D. not to call the police, saying that he had been “really young and really 

stupid.” N.H. said it was S.D. who should decide whether to call the police because she 

was now an adult. S.D. gave Mondragon an ultimatum—if he sought counseling, she 

would not call the police. S.D. did not want her siblings to grow up without their father 

like she had. 

In the following days, Mondragon continued to ask S.D. not to call the police, 

saying that he would go to jail for a long time. Although S.D. thought this was

manipulative of him, she felt bad for her siblings and did not want to ruin her family. 

Mondragon told S.D. that he was going to counseling, but she never saw any proof of 

this. S.D. eventually moved out of the house. 

N.H. did not ask Mondragon to leave because her younger children, Mondragon’s 

biological children, were all still at home. N.H. was under the impression that 

Mondragon was going to see a psychologist or a therapist. She repeatedly asked 

Mondragon if he was going to seek counseling and reminded him that she would call the 

police if he did not get help. N.H. did not give Mondragon a set date to seek counseling, 

but she asked him every few weeks about his progress. 

In late 2011, N.H. told Mondragon that she was going to report him to the police 

because she had no proof that he was actually getting counseling. Two months later, 

Mondragon left unannounced and called N.H. as he crossed the border to Mexico. He 

said that he was going to Mexico and that she would never see him again. 
10

While in Mexico, Mondragon would sometimes call S.D., occasionally asking

about her body weight, or asking for money. 

4. The Facebook Messages 

After Mondragon left for Mexico, months passed without contact between N.H. 

and Mondragon other than a threatening message he left her after she disclosed his abuse 

of S.D. to his sister. At some point, however, communications between N.H. and 

Mondragon resumed via Facebook Messenger. N.H. could not recall at trial which of the 

two had initiated contact, but the reason N.H. kept in touch with Mondragon was because 

of her younger children, who became “depressed” after Mondragon left. N.H.

communicated with Mondragon by sending messages to a Facebook account identified 

by the user name, “Nacho Mondragon.” 

N.H. and “Nacho Mondragon” exchanged messages in Spanish, and the prosecutor

admitted a translated English version and the original Spanish version of the following 

Facebook messages into evidence as an exhibit:8

On October 3, 2013, at 11:09 p.m., N.H. told Mondragon in a lengthy message, 

“You need to confront your mistakes. If you come back and deal like a man and get help, 

perhaps you can live a good life with your children.” A few hours later, Mondragon 

responded, “I know that I did wrong to you who supported me.” That morning, 

Mondragon added, “Can I tell you something that they will catch me never.” 

Also on October 4, Mondragon asked N.H., “One question.! Life is grand and 

better without you say it.” An hour later, N.H. replied, “To me, life is better without you, 

without having to see the face of abuse on my daughter.” Mondragon answered five 

minutes later, saying, “[N.H.] you said that you were or are big I was there and I gave 

you guys everything now it’s your turn. Show that you’re a badass ok. Ok.” 

8 We quote verbatim from the exhibit that was admitted into evidence; the 

spelling, punctuation, abbreviations are from the original.
11

On December 2, 2013, at 6:21 p.m., N.H. wrote, “Hello . . . did you forget what 

you did? You abused my daughters ASSHOLE!!!!!!!!!!!!.” Mondragon responded at 

10:56 p.m., “By,” and then at 11:06 p.m., “Ok sorry [N.H.] you’re. [N.H.] take care.” 

Also at 11:06 p.m., Mondragon wrote, “I am Glad. That you are a great woman Hector 

took care of your children.” Mondragon also asked N.H. to take care of their children. 

Also on December 2, 2013, at 11:52 p.m., N.H. wrote, “I hope Chikis [(their son)] 

doesn’t turn out like you . . . [Mondragon’s brother] and Lalo . . . and maybe your dad 

was that way . . . sick abusers that like little girls.” Mondragon responded on 

December 3, 2013, at 6:15 a.m., “We weren’t like raul9 or boy [sic] or maximo they were 

rapists who raped you boby okay normita you’re kidding. You’re still sick [N.H.]” At 

1:05 p.m. that same day, N.H. responded in part, “[Y]ou are worse, since you started 

molesting my daughters since they were 5 years old.” At 9:32 p.m. that day, Mondragon 

replied, “That you also took your cousin’s . . . boyfriend but I was always ahead with 

other broads and you thought you were the only one there is [N.H.]? You’re such a 

badass take care and say hello to the neighbor that was by buddy and cool with both.” 

On December 4, 2013, N.H. wrote to Mondragon at 10:09 p.m. that he did not 

think about the children and had done “a lot of damage here.” Mondragon responded

four minutes later that he loved “my little goats so much[,] I was not there for my girl’s 

15th nor the graduation for my sons.” At 10:19 p.m., N.H. wrote: “My daughters would 

have forgiven you . . . now they hate you because you didn’t care about what you did. 

You have no remorse. [Their daughter] said that she didn’t enjoy her 15th because you 

were not there.” Two minutes later, Mondragon responded, “Don’t continue.” 

Also on December 4, 2013, at 10:27 p.m., N.H. sent Mondragon a message saying, 

“I’m just going to ask you something. Ask my daughters for forgiveness. They need to 

9 N.H.’s brother, Raul, had been convicted of statutory rape. 
12

hear that.” Mondragon responded immediately, saying in part, “Thank you for telling me 

that, but I’m honestly sick. I’m not telling you to make fun of me. I am sick.” 

5. The Disclosure to the Police

S.D. believed Mondragon would stay in Mexico, so she saw no need to report him 

to the police. But this changed in 2017, when she learned that Mondragon had returned 

to the United States. Fearing for her life, she reported his past abuse to the police. 

6. CSAAS Expert

Psychologist Anna Washington testified as an expert in CSAAS. CSAAS, 

according to Washington, describes some common aspects of “how [children] might 

respond to sexual abuse and how they may report about abuse after their experiences.”

Washington described CSAAS as encompassing five characteristic responses: secrecy;

helplessness; feelings of entrapment and accommodation; unconvincing, conflicted, or 

delayed disclosure of abuse; and retraction. Not all abused children exhibit all the 

responses characteristic of CSAAS. Washington described the categories as follows:

The first characteristic, secrecy, stems from the preexisting relationship

perpetrators often have to a child. The perpetrator may be someone the child knows and 

loves or who “meets some of [the child’s other] needs” and may use “grooming 

intimidations” or coercion to keep the child quiet. 

Helplessness refers to a child’s vulnerability. Washington testified that 

perpetrators of child sexual abuse are usually adults and are both physically stronger and 

more sophisticated in relationships than children, so children are unable to physically 

resist or may submit to the abuse because they are made to feel helpless for other reasons. 

Entrapment and accommodation, according to Washington, refer to the child’s 

feeling of being trapped in the relationship and the child’s mechanisms for coping with 

the abusive relationship. A child may try to avoid the perpetrator or may develop 
13

“internalized mental health problems, like disruptive behavioral problems, substance 

abuse, or other similar behaviors.”

The next characteristic—“delayed, unconvincing, and conflicting disclosures”—

Washington testified refutes the “myth” that child sexual abuse victims will tell someone 

about the abuse right away. According to Washington, the majority of child abuse 

victims will not disclose the abuse because of their preexisting relationship with their

abuser. Even when children do disclose abuse, their disclosures may be inconsistent. 

The last characteristic, retraction, involves a child “taking back a previous true 

allegation of child sexual abuse.” Washington testified that retraction occurs “if [the 

children] realize that telling about the abuse caused something bad to happen.”

C. The Verdict and Sentencing 

On March 27, 2019, the jury convicted Mondragon of all counts as charged and 

found the multiple-victim enhancement allegation to be true. On May 20, 2019, the trial 

court sentenced Mondragon to prison for a total indeterminate term of 92 years and 

eight months to life.10 

II. DISCUSSION

A. Facebook Messages 

Mondragon argues that the trial court erred by admitting the Facebook messages 

because they were insufficiently authenticated and did not qualify as adoptive 

admissions. We review the trial court’s findings as to foundational facts for substantial 

evidence. (People v. DeHoyos (2013) 57 Cal.4th 79, 132 (DeHoyos).) We review its 

ultimate determination as to admissibility for abuse of discretion. (People v. Goldsmith 

(2014) 59 Cal.4th 258, 266 (Goldsmith); People v. Chism (2014) 58 Cal.4th 1266, 1297 

10 The trial court sentenced Mondragon to six consecutive terms of 15 years to life 

for counts 1 through 5 and 8, a middle term of two years for count 6, and eight months 

(one-third the middle term of 2 years) for count 7. 
14

(Chism).) Under these deferential standards, we find no merit in Mondragon’s 

contentions.11

1. Authenticity of the Facebook Messages

As “writings,” the Facebook messages are subject to authentication by “the 

introduction of evidence sufficient to sustain a finding that [they are] the writing[s] that 

the proponent of the evidence claims [they are].” (Evid. Code, §§ 250, 1400.) The 

authenticity of a writing can be established by circumstantial evidence and by the 

contents of the writing itself, and the means of authenticating a document are not limited 

to those specified in the Evidence Code. (People v. Landry (2016) 2 Cal.5th 52, 87; 

People v. Valdez (2011) 201 Cal.App.4th 1429, 1435 (Valdez) [MySpace page may be 

authenticated by items on the page suggesting the identity of owner]; People v. Cruz

(2020) 46 Cal.App.5th 715 (Cruz) [Facebook messages can be adequately authenticated 

by circumstantial evidence, including the contents of the messages themselves]; Evid. 

Code, §§ 1410, 1421.) “The purpose of the evidence will determine what must be shown 

for authentication, which may vary from case to case. [Citation.] The foundation 

requires that there be sufficient evidence for a trier of fact to find that the writing is what 

it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, 

what is necessary is a prima facie case. ‘As long as the evidence would support a finding 

of authenticity, the writing is admissible. The fact conflicting inferences can be drawn 

regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ ” 

(Goldsmith, supra, 59 Cal.4th at p. 267.) 

Substantial evidence supported the trial court’s determination that the jury could 

find the Facebook messages to be genuine communications between N.H. and 

11 Given Mondragon’s alternative claim of ineffective assistance of counsel, we 

elect to reach the merits of both the hearsay and lack of authentication claims, despite 

Mondragon’s reliance at trial on solely the hearsay ground.
15

Mondragon. Gilroy Police Department Officer Hugo Delmoral testified that he was 

tasked with looking at Facebook messages associated with Mondragon’s case. N.H. gave 

Delmoral her Facebook password so that he could access her account, and Delmoral

found a Facebook profile for a user named “Nacho Mondragon.” Delmoral was able to 

view messages sent between “Nacho Mondragon” and N.H. from July 2013 until 

January 2014. The messages were written in Spanish, which Delmoral was fluent in. 

Delmoral wrote a search warrant for the Facebook account. Facebook responded to the 

search warrant with records associated with the account, which showed that the account 

was associated with an email address called “chiki_boys@hotmail.com.” 

Delmoral found multiple indications that the “Nacho Mondragon” account 

belonged to Mondragon. Delmoral knew that “Chikis” was a nickname used by 

Mondragon’s late son. “Nacho Mondragon” had Mondragon’s daughter and son listed as 

Facebook friends, and the user of the account had sent Mondragon’s photograph to other

women. Mondragon’s daughter and son sent “Nacho Mondragon” Facebook messages 

where they would call him “papi,” a term of endearment for “dad.” Mondragon’s son 

sent “Nacho Mondragon” photos of himself playing football, and “Nacho Mondragon”

sent photos of Mondragon to the son. N.H. herself testified that Mondragon went by the 

name “Nacho” and also used the “Nacho Mondragon” Facebook account to communicate 

with her. N.H. told Delmoral that she had deleted some messages, but N.H. had 

confirmed that no messages were deleted from July 2013 to January 2014. Based on the 

foregoing, circumstantial evidence dating years before any law enforcement involvement 

supported the trial court’s prima facie determination of the messages’ authenticity. (See 

Valdez, supra, 201 Cal.App.4th at p. 1436; Cruz, supra, 46 Cal.App.4th at pp. 730-731.) 

Arguing otherwise, Mondragon relies on People v. Beckley (2010) 185 

Cal.App.4th 509 (Beckley), in which the Court of Appeal considered whether a 

photograph on a MySpace page depicting a witness allegedly using gang signs was 
16

sufficiently authenticated. (Id. at p. 515.) Opining that “ ‘[a]nyone can put anything on 

the Internet’ ” and that “hackers can adulterate the contents of any web-site from any

location at any time’ ” (id. at pp. 515-516), the court in Beckley held that the trial court 

erred in admitting the photograph in question. (Id. at p. 514.) The court further

concluded that the trial court erred in admitting a gang roster that appeared on a web page 

as there was insufficient evidence that the writing was what it purported to be—there was 

no evidence as to who authored the roster, the officer who obtained the roster did not 

know who created it, and there was no evidence that the person who created the list had 

any personal knowledge of the gang’s members or that persons on the list were in fact 

gang members. (Id. at pp. 517-518.)

Beckley is distinguishable both in the circumstances of the web posting and the 

purpose for which the evidence was admitted, which as we have noted “will determine 

what must be shown for authentication.” (See Goldsmith, supra, 59 Cal.4th at p. 267.) 

Unlike Beckley, we are not concerned with the authentication of a photograph for the 

purpose of proving the action depicted in the photograph—irrespective of the truth of 

N.H.’s statements in the Facebook Messenger exhibits, the purpose of the exhibits was to 

document how Mondragon responded to those accusations. “The questions concerning 

the accuracy and reliability of these Facebook messages differ from the questions 

concerning the accuracy and reliability of the photographic evidence presented in 

Beckley.” (Cruz, supra, 46 Cal.App.5th at p. 731.) And unlike the gang roster 

considered in Beckley, there was ample circumstantial evidence from which the trial court 

could find that the writing was what it purported to be—an exchange of messages 

between N.H. and Mondragon. (See Beckley, supra, 185 Cal.App.4th at pp. 517-518.) 

To the extent Mondragon argues that there was no evidence from Facebook or an 

Internet Service Provider that established that he was the one who sent the messages in 

reply to N.H. or evidence about how easy or hard it would be for someone to use the 
17

“Nacho Mondragon” account or to hack into the “chikis_boys@hotmail.com” e-mail,

these arguments go primarily to the weight of the evidence, not to its admissibility. 

“[T]he proponent’s threshold authentication burden for admissibility is not to establish 

validity or negate falsity in a categorical fashion, but rather to make a showing on which 

the trier of fact reasonably could conclude the proffered writing is authentic.” (Valdez, 

supra, 201 Cal.App.4th at p. 1437.) All that is required to authenticate a writing is a 

“prima facie case” that the writing is what it purports to be. (Goldsmith, supra, 59 

Cal.4th at p. 267.) 

Finally, Mondragon relies on Commonwealth. v. Williams (Mass. 2010) 926 

N.E.2d 1162 (Williams). In Williams, the Massachusetts Supreme Court that held that 

MySpace messages purportedly from the defendant’s brother to a prosecution witness 

were insufficiently authenticated, although the MySpace account featured a photo of the 

defendant’s brother, the witness testified generally that the messages she received came 

from the MySpace account, and the contents of the messages demonstrate a familiarity 

with the recipient and the defendant’s criminal case. (Id. at pp. 1172-1173.) Williams 

reasoned that “[a]nalogizing a Myspace Web page to a telephone call, a witness’s 

testimony that he or she has received an incoming call from a person claiming to be ‘A,’ 

without more, is insufficient evidence to admit the call as a conversation with ‘A.’ ” (Id.

at p. 1172.) 

The persuasive authority of Williams is lessened by its distinguishable facts—there 

was no evidence in Williams that the defendant’s brother had ever communicated with 

the recipient prior to trial, nor was there evidence about the account’s communication 

with other individuals. (Williams, supra, 926 N.E.2d at p. 1172.) Here, there is 
18

comparatively more circumstantial evidence that “Nacho Mondragon” was used by 

Mondragon and that Mondragon sent the messages.12

Accordingly, we conclude that substantial evidence supports the trial court’s 

determination of foundational facts and that the trial court did not abuse its discretion in 

deeming these sufficient to overcome Mondragon’s authenticity objection. (DeHoyos, 

supra, 57 Cal.4th at p. 132; Goldsmith, supra, 59 Cal.4th at p. 266.) We therefore turn to 

the merits of Mondragon’s hearsay objection. 

2. Adoptive Admissions

“ ‘There are only two requirements for the introduction of adoptive admissions

[under Evid. Code, § 1221]: “(1) the party must have knowledge of the content of 

another’s hearsay statement, and (2) having such knowledge, the party must have used 

words or conduct indicating his adoption of, or his belief in, the truth of such hearsay 

statement.” [Citation.]’ ” (People v. Combs (2004) 34 Cal.4th 821, 843.) In other words, 

an adoptive admission can be admitted if a statement was made “ ‘ “under circumstances 

that would normally call for a response if the statement were untrue” ’ ” and the recipient 

of the message responded with “ ‘ “silence, evasion, or equivocation.” ’ ” (People v. 

12 Mondragon also relies on State v. Eleck (Conn.Ct.App. 2011) 23 A.3d 818, a 

case decided by the Appellate Court of Connecticut but since overruled by the Supreme 

Court of Connecticut in State v. Manuel T. (Conn. 2020) 254 A.3d 278 (Manuel T.). In 

Manuel T., the intermediate appellate court held that the trial court properly excluded 

Facebook messages where the proponent did not present evidence that the messages came 

from the purported author and not just from the author’s Facebook account. (State v. 

Eleck, supra, at p. 824.) But the Supreme Court of Connecticut reversed, holding that 

authentication of electronic communications—including screenshots of text messages—

requires no more than the same “low burden” of prima facie authenticity as other forms 

of evidence under Connecticut law. (Manuel T., supra, 337 Conn. at pp. 294-295.)
19

Jennings (2010) 50 Cal.4th 616, 661 (Jennings).)13 “ ‘To warrant admissibility, it is 

sufficient that the evidence supports a reasonable inference that an accusatory statement 

was made under circumstances affording a fair opportunity to deny the accusation; 

whether defendant’s conduct actually constituted an adoptive admission becomes a 

question for the jury to decide.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1189-1190 

(Riel).) Mondragon argues both that he was not silent in the face of N.H.’s accusations 

and that his responses were neither evasive nor equivocal. Mondragon’s arguments 

largely turn on the availability of alternative interpretations for either N.H.’s accusations 

or Mondragon’s responses and are therefore inconsistent with our deferential standard of 

review.

As a threshold matter, we agree that Mondragon was not merely silent in the face 

of N.H.’s many accusations. But it is the content of his various responses that the trial 

court found to support a reasonable inference of equivocation or evasion, rather than his 

silence. Mondragon’s contrary arguments uniformly go toward the weight of the 

evidence, not their admissibility. 

Mondragon specifically challenges the following statements:

On October 3, 2013, in response to N.H.’s message that he needed to “confront his 

mistakes” and get help, Mondragon expressly admitted, “I know that I did wrong to you 

who supported me.” 

On October 4, when N.H. wrote that her life was better “without having to see the 

face of abuse on my daughter,” Mondragon did not expressly deny N.H.’s accusation of 

abuse, but responded, “I gave you guys everything now it’s your turn.” 

13 However, an adoptive admission cannot be admitted if there is “ ‘an inference 

that [a person] was relying on the right of silence guaranteed by the Fifth Amendment of 

the United States Constitution.’ ” (Jennings, supra, 50 Cal.4th at p. 661.) 
20

On December 2, 2013, when N.H. wrote, “You abused my daughters 

ASSHOLE!!!!!!!!!!!!.” Mondragon responded several hours later with only “By,” 

followed a few minutes thereafter with, “Ok sorry . . . [N.H.] take care.” 

On December 2, 2013, when N.H. wrote that she hoped “Chikis” did not turn out 

“like you, [Mondragon’s brother], and Lalo . . . . sick abusers that like little girls.”

Mondragon responded the next day, “We weren’t like raul or boy [sic] or maximo they 

were rapists who raped you . . . .” 

On December 4, 2013, when N.H. wrote that her daughters “hate you because you 

didn’t care about what you did” and that he had no remorse,” Mondragon responded, 

“Don’t continue.” 

And finally, on December 4, 2013, when N.H. told Mondragon, “Ask my 

daughters for forgiveness. They need to hear that.” Mondragon responded almost 

immediately, in part saying, “Thank you for telling me that, but I’m honestly sick. I’m 

not telling you to make fun of me. I am sick.” 

We discern no abuse of discretion in the trial court’s admission of these messages: 

considered in context, the evidence supported a reasonable inference that Mondragon’s 

responses to N.H.’s accusations were at least evasive and equivocal. (See Riel, supra, 22 

Cal.4th at pp. 1189-1190.) Although Mondragon argues that N.H.’s use of the word 

“abuse” at various times was itself ambiguous, the trial court legitimately found it 

reasonable to infer that N.H.’s assertion that Mondragon had “abuse[d]” her daughter 

would normally call for a response if the statement were untrue, regardless of whether 

“abuse” could be interpreted as sexual abuse or physical abuse. (Jennings, supra, 50 

Cal.4th at p. 661.)14 Moreover, Mondragon’s arguments that he had a sarcastic tone to 

14 Likewise, we note that N.H.’s use of “daughters” instead of “daughter” in her 

messages does not render her statement any less accusatory. At trial, N.H. clarified that 

she had used the plural “daughters” in a later text message because she was referencing 

her daughter who had been abused by Mondragon’s brother. 
21

his messages goes toward the weight of the evidence, not its admissibility. And multiple 

times, Mondragon did not straightforwardly address N.H.’s accusations—when N.H. said 

she hoped that “Chikis” did not turn out like him, Mondragon’s response was not an 

unequivocal denial of his “abus[ing] . . . little girls”; instead, he minimized his abuse by 

alluding to criminals he considered more blameworthy than he, the “rapists who raped 

you.” And when N.H. accused Mondragon of doing something that made her daughters 

hate him, Mondragon changed the subject, permitting the court to construe his answer as 

evasive. (See People v. Fauber (1992) 2 Cal.4th 792, 852 (Fauber) [direct accusation is 

not required for adoptive admission exception to apply].) Likewise, his response to N.H. 

after she told him to ask her daughters for forgiveness was not a denial; he arguably 

acknowledged that he was “honestly sick.” 

Mondragon argues that even if his statements on their face failed to deny N.H.’s 

accusations, there is simply insufficient evidence to support the conclusion that he in fact 

adopted the truth of any of the accusations, relying on People v. McDaniel (2019) 38 

Cal.App.5th 986. There, the Fifth Appellate District considered whether a 20-minute text 

message exchange that included an indirect accusation by the defendant’s mother that the 

defendant had committed several local robberies, which the defendant failed to respond 

to, constituted an adoptive admission. (Id. at p. 999.) The McDaniel court observed that 

“given the distinctive nature of text messaging,” the defendant’s silence following his 

mother’s indirect accusation was insufficient to show that he read the message 

immediately on receipt or to dispel an inference that he had responded to his mother’s 

statement by other means. (Ibid.) Unlike McDaniel, the trial court’s conclusions 

regarding the foundational facts to support the messages’ admission—that Mondragon 

read and understood the messages, that he could have denied the messages but did not—

were supported by substantial evidence, namely the time-stamped responses to each of 

N.H.’s accusatory messages. (See Chism, supra, 58 Cal.4th at p. 1297.) 
22

We also reject Mondragon’s framing of the Facebook messages as having

unfolded over a two-month period, the length of which he asserts would have blurred 

their meaning and diminished the likelihood that his messages were responsive to N.H.’s. 

Although Mondragon and N.H. did in fact exchange messages over a period of months, 

even years, the conversations Mondragon challenges involve discrete exchanges over the 

course of hours, sometimes even minutes. Mondragon’s arguments therefore go toward 

the weight of the evidence, rather than its admissibility. (See Fauber, supra, 2 Cal.4th 

792, 853 [observations that witness kept eyes closed during conversation, could not 

identify which person made which statement, and had ingested a lot of cocaine the night 

prior went toward weight of evidence, not admissibility as adoptive admission].) 

Mondragon was free to argue his points to the jury. To that end, the trial court properly 

instructed the jury in accordance with CALCRIM No. 357, which provides that the jury 

may consider adoptive admissions as true if the following elements are met: (1) the 

statement was made to the defendant or in his presence, (2) the defendant heard and 

understood the statement, (3) the defendant, under all the circumstances, would have 

naturally denied the statement if he thought it was not true, and (4) the defendant could 

have denied the statement but did not. We must presume that the jury followed the 

instructions that it was given. (Chism, supra, 58 Cal.4th at p. 1299.) Thus, if the jury 

found that Mondragon did not read the messages, did not understand the messages, or 

was not the one who responded to them, the jury would have accorded the evidence no 

weight. (Ibid.)

Based on the foregoing, we conclude that the trial court did not abuse its discretion 

when it admitted the Facebook messages as adoptive admissions. (Chism, supra, 58 

Cal.4th at p. 1297; People v. Waidla (2000) 22 Cal.4th 690, 717; Evid. Code, § 1221.) 

Furthermore, as “[t]he ‘routine application of state evidentiary law does not implicate [a] 

defendant’s constitutional rights’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1010), we 
23

find no merit in Mondragon’s claim the admission of the Facebook messages violated his 

Fourteenth Amendment due process right to a fair trial. 

B. CALCRIM No. 1191B

Mondragon argues that the trial court erroneously instructed the jury with 

CALCRIM No. 1191B, which provides that charged sexual offenses can be used as 

propensity evidence.15 He argues that CALCRIM No. 1191B impermissibly expands 

Evidence Code section 1108 to permit the jury to consider evidence of charged sex 

crimes as evidence of a defendant’s propensity to commit other charged sex crimes.16 He 

also argues that CALCRIM No. 1191B violates his federal due process rights as it 

permits the jury to use a guilty verdict on one count to infer his guilt as to other counts. 

Mondragon concedes that his arguments have been foreclosed by the California 

Supreme Court’s decision in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), in 

which a majority of the California Supreme Court concluded that Evidence Code 

section 1108 was not limited to offenses other than those for which the defendant is 

currently on trial. (Villatoro, supra, at p. 1161.) Villatoro held that “in authorizing the 

jury’s use of propensity evidence in sex offense cases, [Evidence Code] section 1108 

necessarily extends to evidence of both charged and uncharged sex offenses, affirming 

that such evidence is not ‘made inadmissible by Section 1101.’ ” (Id. at p. 1162.) 

Bound by our Supreme Court’s decision, we must reject Mondragon’s claim that 

the trial court erred in giving CALCRIM No. 1191B, as well as his argument that his due 

process rights were violated by the instruction. (See Auto Equity Sales, Inc. v. Superior 

15 The instruction was given to the jury without any objection by Mondragon.

16 Evidence Code 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 made inadmissible pursuant to Section 352.” 
24

Court (1962) 57 Cal.2d 450, 455; People v. Meneses (2019) 41 Cal.App.5th 63, 68 

[rejecting due process challenge to CALCRIM No. 1191B under Villatoro].)

C. CALCRIM No. 1193

Mondragon argues that CALCRIM No. 1193 erroneously informed the jurors that 

they could consider the CSAAS expert’s testimony in determining the victim’s 

credibility, lessening the prosecutor’s burden of proof. Although we agree that

CALCRIM No. 1193 could be clarified, it is not reasonably likely the jury would have 

misapplied the instruction on this record.

17

“We review a claim of instructional error de novo. [Citation.] The challenged 

instruction is considered ‘in the context of the instructions as a whole and the trial record 

to determine whether there is reasonable likelihood the jury applied the instruction in an 

impermissible manner.’ ” (People v. Rivera (2019) 7 Cal.5th 309, 326 (Rivera).) 

“ ‘Moreover, any theoretical possibility of confusion [may be] diminished by the parties’ 

closing arguments.’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, abrogated 

on a different ground as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)

CSAAS expert testimony is inadmissible to prove that a complaining witness has 

in fact been sexually abused. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) It is 

admissible solely to rehabilitate a complaining witness against a suggestion that the 

witness’s conduct after the abuse was inconsistent with having been abused. (Ibid.) 

Thus, the expert testimony may legitimately serve “ ‘to disabuse jurors of commonly held 

misconceptions about child sexual abuse, and to explain . . . abused children’s seemingly 

self-impeaching behavior.” (Id. at p. 301.)

17 Mondragon made no objection when the trial court instructed the jury with 

CALCRIM No. 1193, but we nonetheless reach the merits of his claims because he 

contends that the instruction was an incorrect statement of law and affected his 

substantial rights. (§ 1259; see People v. Grandberry (2019) 35 Cal.App.5th 599, 604.)
25

Here, the jury was instructed with CALCRIM No. 1193 as follows: “You have 

heard testimony from Dr. Anna Washington regarding child sexual abuse accommodation 

syndrome. Dr. Washington’s testimony about child sexual abuse accommodation 

syndrome is not evidence that the defendant committed any of the crimes charged against 

him. [¶] You may consider this evidence only in deciding whether or not [S.D.] and 

[H.D.]’s conduct was not inconsistent with the conduct of someone who has been 

molested and in evaluating the believability of their testimony.” (Italics added.)

Multiple Courts of Appeal have upheld the language of CALCRIM No. 1193, as 

recited above, as accurately informing the jury of the limited use of CSAAS evidence. 

(People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 (Gonzales); People v. Munch

(2020) 52 Cal.App.5th 464, 473-474; People v. Lapenias (2021) 67 Cal.App.5th 162, 

175-176.) Mondragon recognizes these cases but argues that they overlooked the fact 

that by permitting jurors to use CSAAS testimony to evaluate the complaining witnesses’ 

“believability”—or credibility—the instruction effectively circumvents the prohibition 

against permitting CSAAS testimony to prove a defendant’s guilt. 

We acknowledge that the inclusion of “and” in the last sentence of the instruction 

is susceptible of an interpretation that the jury’s use of the CSAAS evidence in evaluating 

“the believability of [the witnesses’] testimony” might extend beyond merely deciding 

whether the witnesses’ conduct was inconsistent with that of someone who had been 

molested. But we consider it unlikely on this record that the jury would have applied the 

instruction in an impermissible manner. (Rivera, supra, 7 Cal.5th 309, 326.) CALCRIM 

No. 1193 expressly informs the jury that CSAAS evidence “is not evidence that the 

defendant committed any of the crimes charged.” The expert’s testimony was 

appropriately limited—the expert did not render an opinion as to whether the victims 

were in fact molested—and the prosecutor did not urge the jury to improperly use the 

evidence during closing argument. To the contrary, the prosecutor omitted in her 
26

paraphrase of the instruction the very “believability of the witnesses” clause that 

Mondragon finds objectionable, stating only: “You should consider the evidence 

concerning the syndrome and its effects only for the limited purpose of showing, if it 

does, that the alleged victims’ reactions, as demonstrated by the evidence, are consistent 

with being molested. Okay?” 

Thus, we find no merit in Mondragon’s assertion that the reference to the 

“believability of the witnesses” in CALCRIM No. 1193 would have led the jury to 

believe that it was free to use the CSAAS evidence as a diagnostic tool—to extrapolate 

from the witnesses’ childhood behavior that he had abused them—rather than a 

rehabilitative tool permitting the jury to intelligently decide whether their behavior was 

self-impeaching. For these same reasons, we find no merit in Mondragon’s claim that the 

instruction impermissibly lowered the prosecutor’s burden of proof. (Gonzales, supra, 16 

Cal.App.5th at p. 504.)

D. Prosecutorial Misconduct

Mondragon argues that the prosecutor committed misconduct in closing argument 

by vouching for H.D.’s truthfulness. Although defense counsel did not object and 

therefore forfeited the claim, we address the merits, given Mondragon’s alternative 

argument that his trial counsel was constitutionally ineffective. (See People v. Rodrigues

(1994) 8 Cal.4th 1060, 1125-1126.) Our review of the record satisfies us that no 

misconduct occurred.

During closing argument, the prosecutor made the following statement: “[H.D.] 

was complete[ly] honest. She didn’t exaggerate. She didn’t make things up. She told 

you what happened. If she really had a dog in this fight and really wanted to go after the 

defendant, she’s now a grown woman. She’s sophisticated. She could have said he raped 

her. She could have said so much worse. She didn’t. She has no motive to lie. She 

hasn’t seen him in years. She has moved on. And she is a successful grown woman. 
27

There’s no reason to make this up. There’s no fame. There’s no monetary gain. There’s 

nothing, except for the fact she was forced to tell the truth of what happened to her.” At 

no time did defense counsel object.

“A prosecutor may make ‘assurances regarding the apparent honesty or 

reliability’ of a witness ‘based on the “facts of [the] record and the inferences reasonably 

drawn therefrom.” ’ [Citation.] But a ‘prosecutor is prohibited from vouching for the 

credibility of witnesses or otherwise bolstering the veracity of their testimony by 

referring to evidence outside the record.’ ” (People v. Turner (2004) 34 Cal.4th 406, 

432-433.) For example, in Turner, the California Supreme Court held that it was 

improper for the prosecutor to vouch for expert witnesses based on the prosecutor’s 

personal knowledge of the witnesses and his use of those witnesses when he was a 

defense attorney. (Id. at p. 433.) 

In contrast to Turner, however, the record in this case does not affirmatively 

disclose error; it is at best ambiguous what the prosecutor meant by “successful” and 

“sophisticated,” and “ ‘we “do not lightly infer” that the jury drew the most damaging 

rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. 

Centeno (2014) 60 Cal.4th 659, 667.) The prosecutor’s argument was largely grounded 

in evidence apparent from the record: The prosecutor generally asserted that H.D. was 

credible because of her demeanor on the stand, the consistency of her statements in the 

course of two interviews and her trial testimony, and her lack of motive to lie given the 

passage of time and her scarcity of contact with Mondragon. In contrast, instead of 

referring to S.D. as “successful,” the prosecutor focused on the collateral effects of S.D.’s

experience of abuse—“poor [S.D.]” and her early alcohol dependence, for example, and 

her self-reproach on the stand even at age 30, as she called herself “weak” for not having 

disclosed Mondragon’s abuse as a child. In this context, we conclude the jury would 

have understood the prosecutor’s brief characterization of H.D. as a “successful grown 
28

woman” as a comment on the absence of any obvious lingering effects of her isolated 

experience of abuse (in contrast to S.D.), as well as H.D.’s demeanor on the stand. As for 

the prosecutor’s comment that H.D. is “sophisticated,” given the context of the 

statement—that if she were motivated to lie, she “could have said so much worse”—we 

see no reason the jury would have understood this as anything more than a comment on 

H.D.’s measured and articulate answers on both direct and cross-examination. We 

accordingly reject Mondragon’s claim of prosecutorial error.

Even assuming that the prosecutor’s comments were misconduct, we would find 

no prejudice. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 [reversal not required for 

prosecutorial misconduct unless it is reasonably probable result would have been 

favorable in absence of misconduct].) The prosecutor’s statements here were brief and

generic. In contrast, the evidence against Mondragon was comparatively strong with 

respect to H.D.’s allegation of abuse because S.D. supplied direct eyewitness 

corroboration, and N.H. confirmed H.D.’s fresh complaint. The jury was also instructed 

that the attorneys’ statements—whether in questioning witnesses or in argument—were 

not evidence. We discern nothing in the record that would overcome our customary 

presumption that the jury followed the given instructions. (Chism, supra, 58 Cal.4th at p. 

1299.) 

E. Cumulative Error

Mondragon argues that the cumulative effect of all the errors requires reversal of 

the judgment. “In theory, the aggregate prejudice from several different errors occurring 

at trial could require reversal even if no single error was prejudicial by itself.” (In re 

Reno (2012) 55 Cal.4th 428, 483.) Having found no error to cumulate, we must reject 

Mondragon’s claim of cumulative error.
29

F. Fines and Fees

At the sentencing hearing, the trial court imposed a $5,000 restitution fine 

(§ 1202.4, subd. (b)), a $240 court operations assessment (§ 1465.8), and a $240 criminal 

conviction assessment (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas), Mondragon argues that all the fines and fees should be 

stayed as the trial court failed to make a finding that he had the ability to pay them.18

We agree with the Attorney General that Mondragon forfeited his challenge to the 

imposition of fines and fees under Dueñas. The general rule is that challenges to the 

imposition of fines and fees are forfeited unless an objection is made in the trial court. 

(People v. Aguilar (2015) 60 Cal.4th 862, 866 (Aguilar).) Mondragon made no 

objections to the imposition of fines and fees at the sentencing hearing held four months 

after Dueñas was decided. There is accordingly no reason that Mondragon could not 

have raised a timely Dueñas objection at that time. (People v. Greeley (2021) 70 

Cal.App.5th 609, 624-625 [Dueñas claim forfeited as May 2019 sentencing hearing took 

place several months after Dueñas was decided]; cf. People v. Santos (2019) 38 

Cal.App.5th 923, 932-933 [failure to object at a pre-Dueñas sentencing hearing did not 

forfeit the claim].) 

We also reject Mondragon’s alternative contention that his argument is based on a 

“pure question of law based on undisputed facts,” which we may properly review for the 

first time on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.) A 

person’s ability to pay fines and fees is at bottom a factual determination. (People v. 

McCullough (2013) 56 Cal.4th 589, 597.)

18 This issue is currently pending review by the California Supreme Court in 

People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
30

Equally unavailing is Mondragon’s reliance on People v. Vera (1997) 15 Cal.4th 

269, 276 (Vera), disapproved on other grounds in People v. French (2008) 43 Cal.4th 36, 

47, fn. 3, for the proposition that his Dueñas claim implicates “the deprivation of certain 

fundamental, constitutional rights” cognizable for the first time on appeal. (Vera, supra, 

at p. 276.) Our Supreme Court has held that “ ‘ “a constitutional right,” or a right of any 

other sort, “may be forfeited in criminal as well as civil cases by the failure to make 

timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (In 

re Sheena K. (2007) 40 Cal.4th 875, 880-881.) Vera “ ‘was not intended to provide 

defendants with an “end run” around the forfeiture rule,’ but was limited to a narrow

class of constitutional rights.’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1166, italics 

added.) These rights include “a plea of once in jeopardy and the right to jury trial.” 

(People v. Tully (2012) 54 Cal.4th 952, 980, fn. 9.) None of these rights are implicated 

by Mondragon’s Dueñas claim. 

Accordingly, we conclude that the failure to raise this issue in the trial court has 

forfeited Mondragon’s claim on appeal. (See Aguilar, supra, 60 Cal.4th at p. 866.)

III. DISPOSITION

The judgment is affirmed.
____________________________

LIE, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

GROVER, J.

People v. Mondragon 

H047341