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Filed 7/18/23 P. v. Buchanan CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY KENNEDY BUCHANAN,

Defendant and Appellant.

C095188

(Super. Ct. No. P19CRF0030)

A jury found defendant Jeffrey Kennedy Buchanan guilty of one count of 

continuous sexual abuse of a child and seven counts of lewd acts upon a child under the 

age of 14 years. The prosecution dismissed the count of continuous sexual abuse, and the 

trial court sentenced defendant to 16 years in state prison on the remaining lewd act 

counts. 

Defendant appeals, arguing: (1) the trial court erred by excluding evidence bearing 

on the victim’s credibility; (2) the trial court erred in admitting evidence of child sexual 

abuse accommodation syndrome (CSAAS) and instructing the jury with CALCRIM No. 
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1193 (Testimony on CSAAS); (3) the trial court erred in admitting his stepdaughter’s 

testimony regarding prior acts of sexual abuse; (4) he received insufficient notice of three 

of the charges against him or, in the alternative, the evidence was insufficient to support 

the conviction on one of the ensuing counts; (5) the trial court erred in instructing the jury 

with CALCRIM No. 316 (additional instructions on witness credibility – other conduct), 

CALCRIM No. 361 (failure to explain or deny adverse evidence), and CALCRIM No. 

1191A (evidence of uncharged sex offense); and (6) the trial court erred in imposing an 

upper term sentence without satisfying the requirements of Senate Bill No. 567 (2021-

2022 Reg. Sess.; Senate Bill 567) (Stats. 2021, ch. 731, § 1.3). We will reject all but the 

last of these contentions and remand for resentencing. 

I. BACKGROUND

Jane Doe was born in March 2005. She was 16 years old when she testified at 

trial. Doe’s mother and father are K. and J. K. and J. are divorced and share custody of 

Doe. J. remarried when Doe was seven or eight years old. J.’s new wife, A., became 

Doe’s stepmother.1 Defendant is A.’s stepfather. 

Doe enjoyed a close relationship with A. and A.’s family. She spent weekends 

with an extended and blended family group that included defendant and his wife, H., J.,

and A. and their two young sons (Doe’s half-brothers), and A.’s half-brother Ha. The 

group spent time at defendant’s home in El Dorado Hills and a family cabin near Lake 

Tahoe. Doe spent the rest of her time with K. This arrangement continued for several 

years. 

In March 2017, Doe told some school friends defendant had been touching her. 

Doe’s friends alerted the school principal, who spoke with Doe and confirmed the 

allegations. The principal reported the matter to Child Protective Services (CPS) and 

1

J. and A. have since divorced. 
3

spoke with law enforcement. Doe was interviewed by El Dorado County Sheriff’s 

Department deputies and later participated in a multi-disciplinary interview (MDI) with a 

special investigator for the El Dorado County District Attorney’s Office. 

Defendant was arrested and charged by criminal complaint with one count of 

continuous sexual abuse of a child. (Pen. Code, § 288.5.)2 Following a preliminary 

hearing, the prosecution filed an information charging defendant with one count of 

continuous sexual abuse of a child (§ 288.5, subd. (a)—count 1), six counts of lewd acts 

upon a child (§ 288, subd. (a)—counts 2-7), and two counts of forcible lewd acts upon a 

child (§ 288, subd. (b)(1)—counts 8-9). Defendant pled not guilty to all charges. The 

matter was tried to a jury in June and July 2021. 

A. The Prosecution’s Case in Chief

The prosecution’s case was presented mainly through testimony from Doe, her 

stepmother A., and Dr. Anna Washington, an expert on child sexual abuse and CSAAS. 

1. Doe’s Testimony

Doe testified that defendant touched her inappropriately on multiple occasions 

over a period of years, beginning when she was seven years old. She initially estimated

that defendant touched her vagina between 10 to 15 times. However, she later said it may 

have been more, because defendant touched her almost every time she saw him, and she

saw him often. 

a. Tongue Licking Incident 

Defendant’s unwanted attentions began with a trip to the grocery store. Defendant 

bought Doe a bottle of juice. Afterwards, they sat in defendant’s truck, and he asked for 

a taste. Doe started to pour some juice into another bottle, but defendant stopped her, 

2 Undesignated statutory references are to the Penal Code.
4

saying he wanted to taste the juice in “ ‘a different way.’ ” Defendant asked Doe to stick 

out her tongue. She did so, and defendant licked the juice off her tongue. 

b. Camping Trailer Incident 

Defendant and Doe returned to defendant’s house after their trip to the grocery 

store. Defendant had recently bought a camping trailer, which was parked alongside the 

house. Defendant offered to show Doe around. They went inside, and defendant led Doe

to a bedroom in the back. He stood behind Doe and pulled her shorts down. He groped 

her buttocks and touched her vagina. Moments later, defendant’s wife, H., entered the 

trailer. Defendant pulled Doe’s shorts up and greeted H. H. did not appear to suspect 

anything. 

c. First Lake Tahoe Incident 

The next incident occurred near Lake Tahoe, some months later. A group went to 

the cabin to enjoy the snow. The group included defendant and H., J. and A., Doe and 

two of her friends, and Ha., who was then 10 or 11 years old. One night, the children 

decided to watch a movie on defendant’s laptop. They piled onto a bed in an upstairs loft 

area. Defendant stayed in the loft area and watched the movie. Doe recalled that he was 

kneeling by the bed, next to her. The other children lay on Doe’s other side, under a 

comforter. Doe testified that defendant started touching her under the comforter. He 

started to digitally penetrate her, and she said, “ ‘ow.’ ” One of the other children asked 

what was wrong, and Doe replied, “ ‘Nothing[,] it must have been a bug.’ ” 

d. Second Lake Tahoe Incident (Count 8)

The next incident occurred that same night, during the movie. Doe recalled that 

defendant was still kneeling on the floor next to the bed, when he took her hand and 

placed it inside his pants, at the base of his penis. The incident ended when Doe “ripped 

[her] hand away.” 

 
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e. Incident in Truck 

The next incident took place on the drive home from Lake Tahoe.3 Defendant was 

driving. Defendant’s son, Ha., was sitting in the front passenger seat. Doe was sitting in 

the back seat, behind defendant. Defendant reached back and began rubbing Doe’s lower 

leg and calf area. 

f. Babysitting Incident 

The next incident took place when Doe was around nine years old. Doe testified 

that she had been babysitting her younger brothers at defendant’s house. She was getting 

snacks for her brothers in the kitchen, when defendant appeared and motioned for her to 

come into the bedroom. Defendant stood behind Doe, breathing heavily. He then put his 

hands down her pants and touched her vagina. 

g. The Last Charged Incident

A final charged incident occurred in late 2016 or early 2017.

4 Doe was visiting

defendant’s home and found herself in a bedroom used by A. Defendant entered the 

room and starting to put his hands in Doe’s pants. Defendant’s hands grazed Doe’s 

stomach, but she pushed him away and left the room before he was able to do more. 

h. Uncharged Incidents

Doe testified to several uncharged incidents in El Dorado and Lake Tahoe, only 

one of which need be mentioned here. Doe said she went to defendant’s house for the 

last time in March 2017 and ran into the bedroom to retrieve a sweatshirt. Defendant 

3 Doe could not say whether they were returning from the same trip on which the 

previously described incidents occurred. 

4 As we shall see, there was some confusion about when the last charged incident 

occurred. Doe testified on direct examination that the last incident occurred a couple 

months before her birthday, in late 2016 or early 2017. On cross-examination, however, 

she said the incident occurred on November 16, 2016, which was consistent with her 

statements to El Dorado County Sheriff’s officers. 
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grabbed Doe’s wrist. Doe yanked her hand away and ran out of the room before anything 

could happen. 

2. A.’s Testimony

A. met J. and Doe in 2009. She began sharing an apartment with J. in 2010 and 

gave birth to the first of their two sons that same year. Doe stayed with A. and J. during 

periods when J. had custody. They visited H. and defendant two or three times a week. 

A. and J. separated in 2016. A. and her children moved into defendant’s home in 

El Dorado Hills for several months. During this time, A. maintained a relationship with 

Doe and continued to see her occasionally, when J. or K. needed help with childcare. A.

testified she had no reservations leaving the children at defendant’s house. She noted, 

however, that she was leaving them with H., and not defendant. 

A. became aware of Doe’s allegations in March 2017. Sometime later, defendant, 

H., and Ha. all came to stay in A.’s apartment for several weeks. A. understood 

defendant was staying with her in order to avoid arrest. 

A. maintained contact with Doe and learned more about her experiences with 

defendant. Ultimately, A. decided to confront defendant. She went to defendant’s house 

and said, in substance, she “knew what he did to [Doe].” She also told defendant that he 

was “going to go to jail.” According to A., defendant became hysterical, dropped to his 

knees, and said, “ ‘There is no evidence.’ ” H. then ordered A. to leave the house. 

A. described an angry encounter with K. at her workplace—a law office—in 

March 2017. According to A., K. appeared at the office and demanded that A. provide a 

false declaration impugning J. so she could get sole custody of Doe. A. said she refused, 

and K. became “furious.” 

3. Dr. Washington’s Testimony

Psychologist Anna Washington testified as an expert on child sexual abuse and 

CSAAS. Dr. Washington explained that CSAAS was developed in the 1980s to help 

adults understand children who have been sexually abused. CSAAS describes a pattern 
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of behavior exhibited by many such children, which includes: (1) secrecy; (2) 

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

and (5) recantation or retraction. 

Dr. Washington emphasized that child sexual abuse typically occurs “within a 

preexisting trusted relationship.” She explained that perpetrators are commonly known to 

the child, and “may develop sort of a parent/child relationship or some other positive 

relationship prior to then introducing vague or ambiguous touches that then lead into 

more invasive touches over time.” 

Dr. Washington explained that children who have experienced sexual abuse often 

take months or years to disclose the abuse, and may then make incremental disclosures, 

“sharing little bits and pieces of information at a time.” She added that children who 

have experienced chronic sexual abuse may have difficulty recalling “peripheral details,” 

such as specific dates, but “they are quite good at recalling core details.” 

Dr. Washington estimated that “roughly 80 percent of sexual abuse cases are 

perpetrated by someone who is a known and trusted adult, so usually someone in the 

family system.” Speaking to the unfortunately common nature of child sexual abuse, Dr. 

Washington estimated that “roughly, say, one in four girls, one in five boys will be 

sexually abused before they reach 18.” Dr. Washington said she had not met Doe and 

had not read reports or otherwise acquired any information concerning the facts of the 

case. Rather, she said she was only there to educate jurors on the general topic of 

CSAAS. 

B. The Defense 

Defendant advanced two lines of defense at trial. First, he suggested he could not 

have committed offenses against Doe because he lacked any opportunity to do so. He 

presented testimony from numerous witnesses, including himself, that he was 

continuously employed during the relevant period and frequently travelled for work, 
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sometimes for weeks at a time. Other witnesses testified that, when home, defendant was 

busy coaching Ha.’s sports teams and would have had no time to babysit Doe or take her 

to the grocery store. 

Second, defendant mounted an attack on Doe’s credibility. Several witnesses 

testified Doe had a poor reputation for truthfulness and honesty. Other witnesses testified 

Doe was caught in the middle of an ugly custody dispute between J. and K., which may 

have given her a reason to lie. Still other witnesses challenged specific details of Doe’s 

testimony. For example, several neighbors testified they had never known defendant to 

park the trailer alongside the house, and neighborhood CC&Rs would have prohibited 

him from doing so in any event. Another witness testified the space between the front 

and backseats of defendant’s truck was too tight to allow a person sitting in the driver’s 

seat to reach back and touch another person sitting in the back, as Doe had alleged. We 

summarize other relevant defense testimony below.

1. Dr. Roeder’s Testimony

Dr. Eugene Roeder, a forensic psychologist, testified for the defense. Dr. Roeder 

explained that he conducted an evaluation of defendant pursuant to People v. Stoll (1989) 

49 Cal.3d 1136 (Stoll) to determine whether he possessed any of the characteristics of 

someone who would engage in sexually deviant behavior.5 Dr. Roeder concluded 

defendant did not display any such characteristics. However, Dr. Roeder allowed that 

this conclusion did not necessarily mean that defendant was innocent or telling the truth. 

2. H. and Ha.’s Testimony

Defendant’s wife and son, H. and Ha., each testified that Doe was only an 

occasional visitor to the El Dorado Hills house. H. estimated that Doe came over less 

than once a month and was always accompanied by her younger brothers. Ha. estimated 

5 These characteristics include drug or alcohol abuse, antisocial or narcissistic personality 

disorders, sadism, and masochism. 
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that Doe came to the house once every three or four months, usually for holidays or 

family gatherings. Both testified defendant maintained a grueling work schedule, with 

long days and frequent travel. Thus, they suggested, Doe and defendant were rarely in 

the same place at the same time. 

Turning to Doe’s specific allegations, H. and Ha. testified that defendant never 

babysat Doe and would have been unlikely to have gone to the grocery store with her. H. 

and Ha. acknowledged owning a trailer during the relevant period, but both asserted the 

trailer would never have been parked alongside the house, as Doe maintained. 

H. testified that Doe had been to the cabin near Lake Tahoe only once when 

defendant was present. Ha., for his part, testified that Doe visited the family cabin “a 

handful of times.” H. recalled that J. and A. and their children (including Doe) were 

going skiing with another family and stopped by to say hello. She estimated the visit 

lasted 20 to 30 minutes. She said the children would not have gone upstairs to watch a 

movie, as they would not have had the ability to do so. Ha. said there was never an 

occasion where a group of children were lying in a bed together under the covers, and 

Doe never yelled “ow” or “stop.” 

H. said Doe did not accompany defendant on the drive home from Lake Tahoe. 

Ha. remembered riding in defendant’s truck with Doe on one occasion, but they were not 

driving to or from Lake Tahoe, and Ha. did not see anything unusual or inappropriate. 

H. testified that Doe’s visits stopped entirely—or almost entirely—after J. and A. 

separated in April 2016. From April 2016 through March 2017, H. said Doe came to the 

house only once, on March 26, 2017.6 Ha.’s testimony was much the same. Thus, they

suggested, defendant could not have touched Doe on November 16, 2016, as alleged. In 

any case, H. said defendant was working that day. 

6

 We will say more about this visit in a moment. 
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H. suggested that November 2016 was important for another reason. According to 

H., it was then that a water leak was discovered in the kitchen in the El Dorado Hills 

home. The leak necessitated extensive repairs and remodeling, and the kitchen was 

“completely demoed and gutted down to the studs.” As a result, H. said, Doe would not 

have been able to use the kitchen to prepare snacks for her brothers. 

H. and Ha. each recalled that Doe visited the El Dorado Hills house for the last 

time on March 26, 2017. H. was planning to take Doe’s younger brothers to the movies 

that day. According to H., Doe was “begging” to go, despite having disclosed the alleged 

abuse only days before. H. was shocked when she learned about Doe’s allegations a 

short time later. She had seen nothing to suggest that Doe was afraid of defendant or 

reluctant to go to the house. 

H. denied that defendant ever fell to his knees crying and shaking upon being 

confronted by A. H. and Ha. both denied staying at A.’s apartment in an attempt to hide 

from law enforcement. H. acknowledged being estranged from A. over Doe’s 

allegations, and she asserted Doe has a history of lying and taking things that do not 

belong to her. 

3. Defendant’s Testimony

Defendant testified on his own behalf. He denied touching Doe inappropriately. 

He emphasized that he was away from home much of the time, and thus lacked the 

opportunity to molest Doe. Defendant also emphasized that some of Doe’s testimony 

was inconsistent with other facts said to have been established by the defense, such as the 

location of the camping trailer, the narrowness of the gap between the driver’s seat and 

passenger’s seat of his truck, and the state of the kitchen in November 2016. 

Defendant preemptively testified on direct examination that he had an unusual

encounter with A. in 2009. Defendant explained that he had gone out for drinks with A. 

and A.’s friend, G. They went to a café and listened to a band, and then went to a club. 

Afterwards, defendant and A. dropped G. off and then went to defendant’s home. 
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Defendant said he went to Ha.’s room, because he did not want to disturb H, who was 

asleep. Defendant made his way to Ha.’s twin bed in the dark. He got into bed and 

found that A. was already there. A. got up and left. There was never any suggestion, at 

that time, that defendant had done anything inappropriate to A. 

C. Prosecution Rebuttal

The prosecution presented rebuttal evidence from A. A. testified that defendant 

had been inappropriate with her when she was 23 years old.7 She recalled going out with 

defendant and a friend in July 2009. They were celebrating defendant’s birthday, A. said, 

and all were drinking. Defendant and A. dropped the friend off at the end of the evening. 

They went to defendant’s home, and A. crawled into Ha.’s twin bed.8 Moments later, 

defendant entered the room in his underwear and climbed into bed with her. A. recalled

that she was initially lying on her back, and defendant touched her chest. She then rolled 

onto her stomach, and defendant touched her bottom. He then fell asleep. A. got up and 

left the house. The next day, she received a text message from defendant asking her not 

to tell H. what happened. 

D. Defense Surrebuttal

In surrebuttal, defendant’s sister and two sisters-in-law testified that the episode 

involving defendant and A. in Ha.’s bed was well known within the family and 

understood to have been an amusing anecdote, rather than evidence of anything 

untoward.

7 A. was born in 1986. 

8 Ha. was apparently not home that night. 
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E. Amendments to Information and Dismissal of Count 5

After the parties rested, the prosecution moved to amend the information to

conform to the evidence. The prosecution amended counts 3, 4, and 9 by interlineation as 

described post. The prosecution dismissed count 5 (the tongue licking incident). 

F. Verdict and Sentence

Following closing arguments and jury instructions, the jury found defendant guilty 

on all remaining counts. A sentencing hearing was held in November 2021. Prior to 

sentencing, the prosecution moved to dismiss count 1 (continuous sexual abuse) to avoid 

multiple convictions as proscribed by section 288.5, subdivision (c). The trial court 

granted the motion over defense objection. 

The trial court then sentenced defendant to 16 years in state prison, consisting of 

the upper term of eight years on count 2, four consecutive terms of two years (one-third 

the midterm) on counts 3, 4, 6, and 7, along with concurrent terms of six years on counts 

8 and 9. The trial court said very little about its reasons for choosing the upper term on 

count 2. The trial court indicated only that the court had considered the probation report, 

which identified two aggravating factors (the particular vulnerability of the victim, and 

the fact that defendant took advantage of a position of trust and confidence) and one 

mitigating factor (that defendant had no prior criminal record). The trial court said the 

aggravating and mitigating factors identified in the report “appear to be accurate,” and 

former outweighed the latter. 

Defendant filed a timely notice of appeal. 

II. DISCUSSION

A. Exclusion of Evidence Bearing on Doe’s Credibility 

Defendant argues the trial court erred in excluding two items of evidence bearing 

on Doe’s credibility: (1) evidence Doe made inconsistent statements in an unrelated CPS 

investigation; and (2) evidence Doe stole A.’s computer and cellphone. He contends the 

case came down to a credibility contest between Doe and himself, and there was a 
13

reasonable possibility the result would have been different had the evidence been 

admitted. He further contends exclusion of the evidence violated his fundamental right to 

present evidence and confront witnesses. We perceive no error.

1. Additional Background

Prior to trial, defendant moved in limine to admit evidence that Doe made 

inconsistent statements in an unrelated CPS investigation in 2011. Specifically, 

defendant sought to introduce evidence that Doe initially told investigators she had seen 

her mother perform oral sex on her boyfriend, and later said she had not seen such acts. 

This evidence, defendant said, was relevant both to cast doubt on Doe’s credibility and 

show that Doe’s mother, K., may have directed Doe to change her story. 

The prosecution objected under Evidence Code section 352, arguing the evidence 

would confuse jurors and invite them to speculate about the reason for the CPS 

investigation. The prosecution also argued the evidence was remote and unreliable, given 

that Doe was only six years old at the time of her statements. The trial court reserved 

ruling on the motion. 

The issue came up again during defense counsel’s cross-examination of Doe. 

Defense counsel asked Doe whether she ever told an investigator that she had watched K. 

perform oral sex on a boyfriend. The prosecution objected, and the trial court sustained 

the objection. The trial court also sustained an objection to defense counsel’s questions 

about whether Doe had stolen A.’s laptop computer. 

Both objections were discussed further in a chambers conference outside the 

presence of the jury. With respect to the CPS investigation, defense counsel argued Doe 

lied when she said she had seen K. engaged in oral sex, “which is important in this case 

because this is all about credibility.” With respect to the laptop, defense counsel made an 

offer of proof that A. had filed a police report alleging Doe stole the laptop and 

cellphone. The incident evidently spawned civil litigation in which Doe provided a 

declaration averring they were gifts. Defense counsel anticipated A. would testify that 
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Doe’s declaration was false, which would tend to show that Doe has “a pattern of lying.” 

Thus, defense counsel argued, the evidence was “crucially important.” 

The trial court was not persuaded. In the trial court’s view, the evidence 

concerning Doe’s statements in the CPS investigation had “very little probative value to 

the issues in this case.” The trial court reasoned the evidence would involve jurors in an

unrelated credibility contest, causing prejudice and confusion. Turning to the laptop 

computer and phone, the trial court suggested that evidence, too, would lead to another 

“she said, she said” credibility contest. Accordingly, the trial court stood by its earlier 

rulings. 

The laptop computer and cellphone came up again during the cross-examination of 

A. During a bench conference, defense counsel indicated he was prepared to ask whether 

A. had a good opinion of Doe’s credibility. If she answered yes, defense counsel would 

ask about the police report alleging the theft of the laptop and phone. The prosecutor 

objected under Evidence Code section 352 and the trial court again sustained the 

objection. 

2. Analysis

A trial court “has broad discretion under Evidence Code section 352 ‘to exclude 

even relevant evidence “if its probative value is substantially outweighed by the 

probability that its admission will . . . create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.” ’ ” (People v. Merriman (2014) 60 

Cal.4th 1, 60; People v. Gurule (2002) 28 Cal.4th 557, 619 [trial courts have broad 

discretion to admit or exclude evidence offered for impeachment on a collateral matter].) 

“An appellate court reviews a court’s rulings regarding relevancy and admissibility under 

Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a 

court’s ruling on such matters unless it is shown ‘ “the trial court exercised its discretion 

in an arbitrary, capricious, or patently absurd manner that resulted in a manifest 
15

miscarriage of justice.” ’ ” (People v. Merriman, supra, at p. 74.) Defendant fails to 

make any such showing.

We begin with the trial court’s decision to exclude evidence concerning Doe’s 

statements to CPS investigators. As noted, the trial court found the evidence had “very 

little probative value to the issues in this case.” We see no abuse of discretion. The trial 

court could reasonably conclude that statements made to CPS investigators 10 years 

earlier, when Doe was six, would be unlikely to shed meaningful light on Doe’s 

credibility at the time of trial, when she was 16. (See, e.g., § 1127f [recognizing that 

children may perform differently as witnesses than adults and requiring instruction on 

evaluating the testimony of a child under 10 upon request of a party].) Likewise, the trial 

court could reasonably conclude the evidence would be unlikely to assist jurors in 

assessing Doe’s credibility at the time of trial but would enmesh them in collateral 

credibility issues involving sensitive allegations. These allegations would not only 

require undue consumption of jury time, they would also pit K.’s credibility against that 

of her minor child. Under the circumstances, the trial court could reasonably believe the 

probative value of the proffered evidence (if any) was substantially outweighed by the 

probability that its admission would necessitate the undue consumption of time and create 

a substantial danger of undue prejudice. (Evid. Code, § 352.) No abuse of discretion 

appears.9

We reach the same conclusion with respect to the evidence concerning A.’s laptop 

and cellphone. Although the evidence was recent, it was wholly collateral to the question 

whether defendant molested Doe. What’s more, the evidence appears to have been 

9 Defendant encourages us to undertake a “comparative analysis” of the trial court’s 

exclusion of evidence concerning Doe’s statements to CPS investigators in 2011 and its 

admission of evidence that he behaved inappropriately towards A. in 2009. We do not 

consider the evidence comparable. 
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inconclusive: A. said Doe stole the laptop and phone, Doe said she did not. As the trial 

court observed, the evidence amounted to a “she said, she said” situation. Such a 

swearing match would produce little, if any, enlightenment on the real issues in the case. 

It would, however, prolong an already lengthy trial. The trial court acted within its 

discretion in excluding the evidence. 

Having concluded the trial court’s rulings were not an abuse of discretion, we 

further conclude defendant’s fundamental rights were not violated. (People v. Johnson 

(2022) 12 Cal.5th 544, 607; People v. Panah (2005) 35 Cal.4th 395, 484, fn. 32.) “As a 

general matter, the ordinary rules of evidence do not impermissibly infringe on the 

accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834; People 

v. Gurule, supra, 28 Cal.4th at p. 620.) Moreover, “not every restriction on a defendant’s 

cross-examination violates the Constitution.” (People v. Sanchez (2016) 63 Cal.4th 411, 

450.) Here, given the remoteness of Doe’s statements to CPS investigators, and the 

absence of conclusive evidence she stole from A., the trial court’s rulings could not have 

violated defendant’s constitutional rights. 

Defense counsel had ample opportunity to challenge Doe’s credibility. Defense 

counsel cross-examined Doe on inconsistencies between her testimony and MDI 

statements. Defense counsel also adduced testimony from various witnesses that Doe 

had been coached to lie by K., that she had a poor reputation for truthfulness and honesty, 

and that she stole. On the record before us, we are satisfied the trial court’s rulings did 

not deprive defendant of his due process right to present evidence or constitutional right 

to confront and cross-examine witnesses. (See People v. Ardoin (2011) 196 Cal.App.4th 

102, 121 [no violation of confrontation clause where defense had “both the opportunity 

and the evidentiary substance to thoroughly challenge [witness’s] credibility without the 

excluded evidence”], disapproved on other grounds in People v. Dalton (2019) 7 Cal.5th 

166, 214.) 
17

B. CSAAS Evidence

Defendant advances three contentions concerning the use of CSAAS evidence. 

First, he argues the evidence was unnecessary, because the behavior of children who have 

been victims of sexual abuse has become common knowledge, and jurors no longer need 

expert testimony to explain why children might delay disclosure or offer inconsistent 

accounts of abuse. Second, he argues Dr. Washington’s testimony included statistics that 

amounted to impermissible “general” testimony about child sexual abuse. Third, he 

argues the jury was improperly instructed with CALCRIM No. 1193. These contentions 

lack merit.

1. Admission of CSAAS Evidence

Prior to trial, the prosecution filed a motion in limine requesting permission to 

introduce CSAAS evidence. The court allowed the evidence over defense objection, 

taking care to say that Dr. Washington would only be allowed to testify about CSAAS “in 

the general sense that’s allowed by CALCRIM [No.] 1193.” Dr. Washington testified as 

described ante. No error appears.

A trial court has broad discretion in deciding whether to admit or exclude expert 

testimony, and its decision will not be reversed on appeal unless a manifest abuse of 

discretion is shown. (People v. McDowell (2012) 54 Cal.4th 395, 426; People v. McAlpin 

(1991) 53 Cal.3d 1289, 1299 (McAlpin).) “Expert testimony on CSAAS has long been 

held admissible in California for the limited purposes of dispelling commonly held myths 

or misconceptions about child sexual abuse and aiding the jury in ‘evaluating the 

credibility of an alleged child victim of sexual abuse.’ [Citations.] CSAAS testimony is 

permitted ‘ “to explain the emotional antecedents of abused children’s seemingly selfimpeaching behavior,” ’ such as delayed disclosure of the abuse. [Citations.] An 

expert’s explanation of CSAAS ‘is admissible to rehabilitate [a complaining] witness’s 

credibility when the defendant suggests that the child’s conduct after the incident—e.g., a 
18

delay in reporting—is inconsistent with his or her testimony claiming molestation.’ ” 

(People v. Sedano (2023) 88 Cal.App.5th 474, 479 (Sedano).) 

The admissibility of CSAAS evidence is subject to recognized limits. CSAAS 

evidence “is not admissible to prove that the complaining witness has in fact been 

sexually abused.” (McAlpin, supra, 53 Cal.3d at p. 1300; see also People v. Julian 

(2019) 34 Cal.App.5th 878, 885 (Julian) [“ ‘The expert is not allowed to give an opinion 

on whether a witness is telling the truth’ ”].) Nor may an expert present “ ‘predictive 

conclusions.’ ” (Julian, supra, at p. 886.) The expert may not “give ‘ “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.’ ” (Id. at p. 885.) 

2. Need for CSAAS Evidence

Defendant argues CSAAS was unnecessary because today’s jurors are aware of 

child sexual abuse and no longer require expert testimony to understand the phenomenon 

of delayed reporting or a victim’s desire to preserve his or her relationship with an 

abuser. While recognizing that CSAAS evidence has long been admissible in California 

(see, e.g., McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Bowker (1988) 203 

Cal.App.3d 385, 393-394), defendant urges us to reconsider the issue in light of the 

public’s current understanding of child sex abuse. We decline to do so. 

Expert opinion is admissible when the opinion is “[r]elated to a subject that is 

sufficiently beyond common experience that the opinion of an expert would assist the 

trier of fact.” (Evid. Code, § 801, subd. (a).) “ ‘The jury need not be wholly ignorant of 

the subject matter of the opinion in order to justify its admission; if that were the test, 

little expert opinion testimony would ever be heard. Instead, the statute declares that 

even if the jury has some knowledge of the matter, expert opinion may be admitted 

whenever it would “assist” the jury. It will be excluded only when it would add nothing 

at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one 
19

of such common knowledge that men [or women] of ordinary education could reach a 

conclusion as intelligently as the witness.” ’ ” (McAlpin, supra, 53 Cal.3d at pp. 1299-

1300.) 

Dr. Washington testified she regularly comes into contact with adults who hold 

misconceptions about how children act as victims of sexual abuse. CSAAS is admissible 

for the purpose of dispelling such misconceptions, and the trial court could reasonably 

conclude that expert testimony regarding CSAAS would “assist” jurors (Evid. Code, 

§ 801, subd. (a)), even if they were not “wholly ignorant” of the subject matter. 

(McAlpin, supra, 53 Cal.3d at p. 1299.) The trial court acted within its discretion in 

admitting the evidence.

3. CALCRIM No. 1193

Defendant argues the trial court improperly instructed the jury with CALCRIM 

No. 1193.10 Although not entirely clear, he appears to argue CALCRIM No. 1193

improperly allows the jury to consider CSAAS testimony in evaluating the victim’s 

credibility. Specifically, he argues the instruction reinforces the “primary evils” of 

CSAAS testimony by allowing the jury to consider expert testimony that delayed 

disclosure is not inconsistent with the conduct of someone who has been molested, and 

allowing the jury to believe that the expert considers the victim credible. These

contentions have been forfeited for failure to object to CALCRIM No. 1193 at trial. 

(People v. Franco (2009) 180 Cal.App.4th 713, 719 [“Generally, a party forfeits any 

10 The jury was instructed 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 J. Doe’s conduct was not inconsistent with the 

conduct of someone who has been molested, and in evaluating the believability of her 

testimony.” 
20

challenge to a jury instruction that was correct in law and responsive to the evidence if 

the party fails to object in the trial court”].) In any case, they lack merit. 

CALCRIM No. 1193 does not allow the jury to use CSAAS evidence for an 

improper purpose. CALCRIM No. 1193 informs jurors that they may use CSAAS 

evidence to evaluate whether the alleged victim’s behavior, which may appear to the 

untrained eye to have been inconsistent with being molested, was actually not 

inconsistent. “CSAAS evidence simply neutralizes the victim’s apparently selfimpeaching behavior.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 504.) “Thus, 

under CALCRIM No. 1193, a juror who believes [the expert’s] testimony will find both 

that [the victim’s] apparently self-impeaching behavior does not affect her believability 

one way or the other, and that the CSAAS evidence does not show she had been 

molested.” (Ibid.) As given here, CALCRIM No. 1193 allowed jurors to use CSAAS 

evidence to determine whether Doe’s behavior was “not inconsistent” with the 

allegations and did not allow them to determine from Dr. Washington’s testimony alone 

whether Doe was telling the truth. Jurors were still required to determine for themselves 

whether Doe’s testimony was credible, such as by assessing her demeanor or looking for 

corroboration from other evidence. (People v. Gonzales, supra, at p. 504.) No error 

appears. 

4. Use of Statistical Expert Testimony 

Defendant next argues the trial court erred in allowing Dr. Washington to testify to 

certain statistics involving CSAAS. This argument, too, has been forfeited on appeal. 

(People v. Partida (2005) 37 Cal.4th 428, 433.) Though defendant generally objected to 

CSAAS evidence before trial, he said nothing about the use of statistical evidence and 

made no attempt to argue Dr. Washington’s testimony was likely to invade the province 

of the jury. Defendant’s general pretrial objection to CSAAS evidence was not specific 

enough to enable the trial court or the prosecution to anticipate or address the arguments 
21

raised here. (Id. at p. 435.) Defendant’s challenge to Dr. Washington’s statistical 

evidence is therefore forfeited. Regardless, the argument fails.

Defendant primarily targets Dr. Washington’s testimony that 80 percent of sexual 

abuse cases are perpetrated by “a known and trusted adult.” He argues Dr. Washington’s

testimony improperly narrowed the range of potential suspects and gave Doe’s testimony 

undeserved credibility. We disagree. Dr. Washington’s testimony was obviously meant 

to counter the misconception that sexual abuse cases are typically perpetrated by 

strangers. (See, e.g., McAlpin, supra, 53 Cal.3d at p. 1303 [prosecution’s expert could 

permissibly testify “that in most cases the child molester is not in fact a stranger to his 

victim”].) No reasonable juror would have understood Dr. Washington to suggest that 

defendant was most likely guilty of molesting Doe, given that he was well known to her. 

Jurors would have readily understood that defendant may number among the population 

of non-strangers who commonly commit abuse, yet not himself be guilty of abuse. 

Defendant also takes aim at Dr. Washington’s testimony that “roughly . . . one in 

four girls [and] one in five boys” will be abused by the time they reached the age of 18, 

and 20 percent of child sex abuse cases are unreported. Relying on Julian, supra, 

defendant argues Dr. Washington’s testimony allowed jurors to apply the characteristics 

of CSAAS to the facts of the case and conclude he was guilty as a matter of statistical 

probability. Julian does not help defendant.

In Julian, the prosecution’s CSAAS expert testified at length concerning the 

incidence of false allegations of child sexual abuse, citing studies that they “ ‘don’t 

happen very often,’ ” and range from one to eight percent of all cases. (Julian, supra, 34 

Cal.App.5th at pp. 883-885.) The Court of Appeal concluded the expert’s testimony 

went beyond the proper scope of CSAAS evidence, and defense counsel was ineffective 

in failing to object to it. (Id. at pp. 880-881.) But Julian was specifically concerned with 

statistical evidence that the victim’s allegations were false, which invited jurors to 

presume the defendant was guilty based on a statistical probability, rather than the 
22

evidence presented in the case. (Id. at p. 886; see also People v. Wilson (2019) 33 

Cal.App.5th 559, 569-571 [statistical evidence suggesting to jury there was an 

overwhelming likelihood the victim’s testimony was truthful, which invaded the province 

of the jury].) Julian does not disapprove of all statistical evidence in CSAAS testimony. 

(See Sedano, supra, 88 Cal.App.5th at p. 482 [“Statistical probabilities are not inherently 

suspect when it comes to explaining CSAAS”].) 

Nothing in the record suggests Dr. Washington’s testimony exceeded the limits set 

by Julian. Unlike the CSAAS expert in Julian, Dr. Washington said nothing about the 

likelihood that allegations of child sexual abuse may turn out to have been false. Rather, 

Dr. Washington testified to the percentage of sexual abuse cases committed by a trusted 

adult, the percentage of children who have experienced abuse by the time they turn 18

years old, and the percentage of children who do not report abuse. These statistics were 

relevant to the CSAAS components of secrecy and delayed disclosure, and would have 

helped jurors assess Doe’s credibility by making them less likely to disbelieve her solely 

because she had a preexisting relationship with defendant and delayed disclosure. None 

of Dr. Washington’s statistical evidence encouraged jurors to presume defendant was 

guilty as a matter of mathematical probability. 

C. Admission of A.’s Rebuttal Testimony

Defendant argues the trial court erred in admitting A.’s rebuttal testimony. He

argues the trial court erred in finding Dr. Roeder’s opinion testimony opened the door to 

A.’s rebuttal testimony, and abused its discretion in admitting the evidence under 

Evidence Code sections 1108 and 352. These arguments are unavailing.

1. Additional Background

Defendant moved in limine to exclude A.’s testimony that he touched her 

inappropriately after a night of drinking in 2009. Defendant argued touching an adult is

not analogous to touching a child, and the evidence should be excluded as more 

prejudicial than probative pursuant to Evidence Code section 352. The prosecutor 
23

countered that the evidence was admissible under Evidence Code section 1108, and any 

risk of prejudice was blunted by the fact that the evidence would be less inflammatory 

than the testimony concerning the charged offenses. The trial court took the issue under 

submission, reserving ruling to hear more details from Doe’s testimony. 

The issue came up again by way of a supplemental motion in limine, which was 

filed by the prosecution before A. took the stand to testify. The prosecution argued A.’s 

testimony was relevant to show defendant touches vulnerable female family members 

without their consent and would not require undue time or create a substantial risk of 

undue prejudice. Defendant responded that the alleged touching of an adult was not 

analogous to the alleged touching of a child, and the evidence was more prejudicial than 

probative under Evidence Code section 352. Following an Evidence Code section 402 

hearing, the trial court excluded the evidence, finding the prejudicial effect outweighed 

the probative value, but noting, “It’s a very close call.” A. testified in the prosecution’s 

case-in-chief without referring to the 2009 incident. 

During the defense case, Dr. Roeder testified he conducted a Stoll evaluation and

determined that defendant does not possess any of the characteristics of someone who 

would engage in sexually deviant behavior. Other defense witnesses testified that they 

had known defendant for a long time and did not consider him capable of committing the

charged offenses. 

The prosecutor then renewed his motion to admit A.’s testimony concerning the 

2009 incident. The trial court took the issue under submission and reversed its ruling the 

next day. The trial court explained: “[W]hen I excluded the testimony on this issue 

regarding the alleged sexual assault upon [A.], I said it was a very close call, and it was. 

I think Dr. Roeder’s testimony tipped the balance from excluding it pursuant to [Evidence 

Code] section 352 to letting it be admitted.” The trial court admitted the evidence 

pursuant to Evidence Code section 1108 and A. testified in the prosecution rebuttal case 

as described ante. 
24

2. Analysis

Defendant argues, first, that the trial court erred in finding Dr. Roeder’s testimony 

opened the door to A.’s rebuttal testimony. We do not necessarily disagree. (People v. 

Felix (1999) 70 Cal.App.4th 426, 431-432 [Evid. Code, § 1102 does not authorize the 

admission of specific instances of conduct].) However, the trial court also found the 

evidence was admissible under Evidence Code section 1108. Defendant argues, second, 

that the trial court abused its discretion in so finding. It is at this point that we part 

company with defendant.

Evidence Code section 1108 “allows evidence of the defendant’s uncharged sex 

crimes to be introduced in a sex offense prosecution to demonstrate the defendant’s 

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

“The evidence is presumed admissible and is to be excluded only if its prejudicial effect 

substantially outweighs its probative value in showing the defendant’s disposition to 

commit the charged sex offense or other relevant matters.” (People v. Cordova (2015) 62 

Cal.4th 104, 132.) Evidence Code section 1108 reflects a legislative determination that 

“ ‘evidence of uncharged sexual offenses is so uniquely probative in sex crimes 

prosecutions it is presumed admissible without regard to the limitations of Evidence Code 

section 1101.’ ” (People v. Britt (2002) 104 Cal.App.4th 500, 505-506, italics omitted.) 

“ ‘To be admissible under Evidence Code section 1108, “the probative value of the 

evidence of the uncharged crimes ‘must be substantial and must not be largely 

outweighed by the probability that its admission would create a serious danger of undue 

prejudice, of confusing the issues, or of misleading the jury.’ [Citations.]” [Citation.] 

“The principal factor affecting the probative value of an uncharged act is its similarity to 

the charged offense. Other factors affecting the probative value include the extent to 

which the source of the evidence is independent of the charged offense, and the amount 
25

of time between the uncharged acts and the charged offense. The factors affecting the 

prejudicial effect of uncharged acts include whether the uncharged acts resulted in 

criminal convictions and whether the evidence of uncharged acts is stronger or more 

inflammatory than the evidence of the charged offenses.” [Citation.] “The weighing 

process under [Evidence Code] section 352 depends upon the trial court’s consideration 

of the unique facts and issues of each case, rather than upon the mechanical application of 

automatic rules.” ’ ” (People v. Robertson (2012) 208 Cal.App.4th 965, 990-991.)

“A challenge to admission of prior sexual misconduct under Evidence Code 

sections 1108 and 352 is reviewed under the deferential abuse of discretion standard and 

will be reversed ‘only if the court’s ruling was “arbitrary, whimsical, or capricious as a 

matter of law. [Citation.]” [Citation.]’ [Citation.] ‘We review the correctness of the 

trial court’s ruling at the time it was made, . . . and not by reference to evidence produced 

at a later date.’ ” (People v. Robertson, supra, 208 Cal.App.4th at p. 991.)

Defendant argues A.’s testimony had little probative value because she was an 

adult at the time of the incident, while Doe was a child at the time of the charged 

offenses. According to defendant, a “vast difference” exists between the incident 

involving 23-year-old A. and those involving six-to 12-year-old Doe. That may be so, 

but the difference does not establish an abuse of discretion. 

Despite the age difference between victims, the uncharged offense involving A. 

was sufficiently similar to the charged offenses involving Doe to have probative value 

regarding defendant’s propensity to commit sexual offenses. Both victims were young 

and vulnerable. Both were close, nonbiological family members. And both described the 

same type of touching or groping, in the same type of domestic setting. The trial court 

could reasonably conclude A.’s testimony constituted probative circumstantial evidence 

of defendant’s propensity to sexually abuse young female relatives. (See, e.g., People v. 

Escudero (2010) 183 Cal.App.4th 302, 311 [evidence of uncharged offenses against adult 
26

victims had “substantial probative value” in case involving young minor victim “despite 

the differences in the ages of the females”].)

Defendant argues the uncharged conduct evidence was too remote to have 

significant probative value. Although the seven year gap between charged and uncharged 

offenses could be characterized as substantial, there is no bright line rule regarding when 

a prior act should be considered too remote to be admissible under Evidence Code section 

352. (People v. Branch (2001) 91 Cal.App.4th 274, 278, 281 [uncharged sexual acts 

committed over 30 years before charged offenses were properly admitted under Evidence 

Code sections 1101 and 1108]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395

[uncharged sexual acts that occurred 20 years before charged offenses were not too 

remote for purposes of Evidence Code section 352].) The trial court could reasonably 

conclude the uncharged offense was not excessively remote, given the parallels to the 

charged offenses. The trial court could also reasonably conclude that A.’s testimony 

posed little risk of confusing the jury or consuming undue time. No abuse of discretion 

appears.

D. Counts 3, 4, and 9

Defendant next challenges his convictions on counts 3, 4, and 9. He argues his 

due process rights were violated with respect to counts 3, 4, and 9 because he did not 

receive sufficient notice of the underlying charges. He also argues the evidence was 

insufficient to support the conviction with respect to count 9. We reject these arguments. 

1. Due Process

We begin with defendant’s contention that he received insufficient notice of the 

charges in counts 3, 4, and 9. As we shall see, the contention has been forfeited. In any 

event, his due process rights were not violated, and no prejudice occurred. 

a. Additional Background

On January 15, 2019, the El Dorado County District Attorney filed a complaint 

charging defendant with one count of continuous sexual abuse. (§ 288.5.) Sergeants
27

Blake Braaflaet and Anthony Prencipe of the El Dorado County Sheriff’s Office testified 

at the preliminary hearing on October 3, 2019. 

Sergeant Braaflaet testified he interviewed Doe on March 30, 2017. Doe 

estimated defendant touched her inappropriately 10 to 15 times. She told Braaflaet about

an incident involving juice at the grocery store, an incident involving a movie near Lake 

Tahoe, and an incident in El Dorado Hills in November 2016. With respect to the 

November 2016 incident, Doe reported that she was babysitting her younger brothers at 

defendant’s house and went to get them a snack. Defendant summoned her to a nearby 

bedroom, put his hands down her pants, and touched her vagina. On cross-examination, 

Braaflaet added that Doe reported an incident in a trailer parked alongside defendant’s 

home. 

Sergeant Prencipe observed Doe’s MDI in May 2017.11 Like Sergeant Braaflaet, 

Prencipe testified Doe estimated defendant touched her inappropriately 10 to 15 times. 

The first incident took place outside the grocery store when she was seven years old. A 

second incident took place around the same time in a trailer parked alongside defendant’s 

house, and involved defendant touching Doe’s vagina and buttocks. Another incident 

took place in a cabin near Lake Tahoe. 

Sergeant Prencipe testified most of the incidents took place in defendant’s 

bedroom in El Dorado Hills. According to Prencipe, defendant “would normally start on 

the outside of the clothing, and he would put . . . his hand underneath the clothing and 

touch her vagina.” The last time defendant touched Doe was when she was 12, “right 

after her birthday.”12 On this occasion, Doe said she went to defendant’s house to 

“watch a movie and forgot her sweater inside.” She went inside, and defendant grabbed 

11 Prencipe was a detective with the El Dorado County Sheriff’s Office at the time. 

12 As noted, Doe’s birthday is in March. 
28

her and started pulling her into the bedroom. Doe fell over and then ran out of the house. 

Prencipe did not remember Doe saying anything about an incident in November 2016. 

The trial court held defendant to answer to the charge of continuous sexual abuse 

of a minor (§ 288.5), but declined to issue a holding order on any other charges. The trial 

court stated: “[T]he People are free to file charges on the information for any counts for 

which evidence was presented at this preliminary hearing.” The prosecution 

subsequently filed an information charging defendant as follows: continuous sexual 

abuse (§ 288.5, subd. (a)—count 1), lewd act upon a child (touching of vagina in 

bedroom, first time) (§ 288, subd. (a)—count 2), lewd act upon a child (touching of 

vagina in bedroom, second time (§ 288, subd. (a)—count 3), lewd act upon a child 

(touching of vagina in bedroom, other time) (§ 288, subd. (a)—count 4), lewd act upon a 

child (kissing tongue at grocery store in El Dorado Hills) (§ 288, subd. (a)—count 5), 

lewd act upon a child (touching of butt in trailer at house) (§ 288, subd. (a)—count 6), 

lewd act upon a child (touching of vagina at South Lake Tahoe) (§ 288, subd. (a)—count 

7), forcible lewd act upon a child (her hand touching of his penis in South Lake Tahoe) (§ 

288, subd. (b)(1)—count 8), and forcible lewd act upon a child (last time in bedroom and 

touching of vagina) (§ 288, subd. (b)(1)—count 9). 

After the parties rested, the prosecution moved to amend the information to 

conform to the evidence. As relevant here, the prosecution amended count 3 by 

interlineation from “lewd act upon a child . . . touching of vagina in bedroom, second 

time,” to “lewd act upon a child . . . touching of leg in truck.” The prosecution amended 

count 4, “lewd act upon a child . . . touching of vagina in bedroom, other time,” to “lewd 

act upon a child . . . touching of vagina in trailer.” The prosecution amended count 9, 

“forcible lewd act upon child . . . last time in bedroom and touching of vagina,” to “lewd 

act upon child . . . last time in bedroom and touching of waistline.” The trial court 

accepted the amendments. Defense counsel made no objection. 
29

b. Analysis

At the outset, we note defendant forfeited his due process and fair notice argument 

by failing to object to the pleading variance in the trial court. A challenge to a variance 

between pleading and proof cannot be made for the first time on appeal where defendant 

was not injured or prejudiced by the variance. (§ 960; People v. Amy (1950) 100 

Cal.App.2d 126, 128.) Defendant did not raise this issue in the trial court. However, he 

was not injured or prejudiced by the pleading variance. Accordingly, defendant’s

argument must be deemed forfeited. In any event, the argument also fails on the merits.

Due process requires a criminal defendant to be advised of the pending charges so 

he has a reasonable opportunity to prepare and present his defense. (People v. Jones 

(1990) 51 Cal.3d 294, 317.) A defendant must be prepared to defend against all offenses 

of the type alleged in the information which are established at the preliminary hearing to 

have occurred within the time frame pleaded in the information. (Ibid.) However, it is 

the transcript of the preliminary hearing, rather than the information, that gives notice of 

the particulars of an offense. (Id. at p. 312.) Generic testimony at a preliminary hearing 

is sufficient to place a defendant on notice that he must defend against multiple charges. 

(Id. at p. 318.) 

Here, the evidence at the preliminary hearing was sufficient to put defendant on 

notice of the alleged lewd acts charged as amended in counts 3, 4, and 9. Sergeants 

Braaflaet and Prencipe each testified that defendant inappropriately touched Doe between 

10 and 15 times. Most of the incidents took place in defendant’s bedroom in El Dorado 

Hills. However, Braaflaet and Prencipe also referred to an incident in defendant’s 

vehicle (the tongue licking incident), an incident in South Lake Tahoe, and an incident in 

a trailer parked alongside defendant’s house. Prencipe elaborated that the incident in the 

trailer involved defendant touching Doe’s vagina and buttocks. 

Based on the evidence presented at the preliminary hearing, defendant was on 

notice that he had to be prepared to defend against alleged lewd acts against Doe between 
30

March 2011, when she was six or seven years old, and March 2017, when she was 11 or 

12 years old. He was also on notice that he should be prepared to defend against 

incidents in several locations, including his bedroom, trailer, and vehicle. Defendant was 

not entitled to notice of the specific time or place of each offense, so long as the offense 

occurred within the applicable limitation period. (See People v. Jones, supra, 51 Cal.3d 

at p. 317.) Defendant has not established any due process violation. But even assuming 

error, there was no prejudice. 

Neither the specific location nor type of lewd act was material to any of the 

charges in amended counts 3, 4, and 9, which only required proof of acts upon the body 

of a child under the age of 14 years, with the intent of arousing, appealing to, or 

gratifying defendant’s or Doe’s lust, passions, or sexual desires. (§ 288, subd. (a).) 

Defendant’s defense was that he never molested Doe at any time, and the prosecution 

failed to prove any of the charges beyond a reasonable doubt. Whether the information

alleged that defendant touched Doe’s vagina, waistline, or leg, or whether it alleged he 

touched her in his house, trailer, or truck, the defense would have been the same—a 

complete denial. Defendant suffered no prejudice from the amendments. 

2. Sufficiency of Evidence to Support Count 9

Defendant argues in the alternative that the evidence was insufficient to support 

the conviction on count 9. Defendant’s argument goes nowhere.

“ ‘In addressing a challenge to the sufficiency of the evidence supporting a

conviction, the reviewing court must examine the whole record in the light most 

favorable to the judgment to determine whether it discloses substantial evidence—

evidence that is reasonable, credible and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Ochoa 

(2009) 179 Cal.App.4th 650, 656-657.) In conducting this analysis, the reviewing court 

must “view[] all the evidence in the light most favorable to the prosecution, and draw[]

all reasonable inferences in favor of the jury’s findings.” (People v. Perez (2017) 18 
31

Cal.App.5th 598, 607.) Under this deferential standard of review, “ ‘it is not a proper 

appellate function to reassess the credibility of the witnesses.’ ” (People v. Friend (2009) 

47 Cal.4th 1, 41.) 

Defendant’s argument rests on an apparent discrepancy between Doe’s pretrial 

statements and trial testimony. Defendant observes that Doe told Sergeant Braaflaet the 

last incident occurred in November 2016, when she was babysitting her younger brothers. 

According to Braaflaet, Doe said she went to the kitchen to prepare a snack and was 

summoned into a bedroom by defendant, who put his hand down her pants and touched 

her vagina. During the trial, however, Doe suggested the babysitting incident was 

separate from the last incident. Although she acknowledged being fuzzy on dates, she 

testified the babysitting incident occurred well before November 2016. On that occasion, 

she said she went to the kitchen to prepare a snack and defendant summoned her to the 

bedroom and touched her vagina. Doe was unclear whether the last incident occurred in 

November 2016 or sometime after. The last incident, Doe said, occurred in late 2016 or 

early 2017, and involved defendant touching her stomach. 

Defendant makes much of the purported discrepancies and lack of clarity in Doe’s 

pretrial statements and trial testimony. These arguments misconceive our standard of 

review. “Issues of witness credibility are for the jury.” (People v. Boyer (2006) 38 

Cal.4th 412, 480, superseded by statute on other grounds.) “ ‘ “ ‘To warrant the rejection 

of the statements given by a witness who has been believed by the [trier of fact], there 

must exist either a physical impossibility that they are true, or their falsity must be 

apparent without resorting to inferences or deductions.’ ” ’ ” (People v. Friend, supra, 47 

Cal.4th at p. 41.) Defendant has not satisfied this burden.

It is true that Doe’s trial testimony differed in some respects from her pretrial 

statements and was often unclear as to dates. However, the jury could have credited 

Doe’s testimony that defendant molested her on a day when she was babysitting and 

made use of the kitchen and also believed the babysitting incident occurred on a date 
32

other than November 16, 2016, when the kitchen was gutted. The jury could have also 

believed the last incident occurred sometime later and involved the touching of Doe’s 

stomach in the bedroom. No physical impossibility or falsity is apparent in Doe’s 

testimony; therefore, we will not reject it. 

E. Alleged Instructional Errors

Defendant raises three claims of instructional error. First, he argues the trial court 

erred in giving CALCRIM No. 316, as it was inconsistent with CALCRIM No. 1191A. 

Second, he argues the trial court erred in giving CALCRIM No. 361 over defense 

counsel’s objection. Third, he argues the trial court erred in giving CALCRIM No. 

1191A with respect to the incident involving A. None of these arguments demonstrates 

reversible error.

1. Applicable Legal Principles and Standard of Review

“ ‘The trial court has the duty to instruct [the jury] on general principles of law 

relevant to the issues raised by the evidence [citations] and has the correlative duty “to 

refrain from instructing on principles of law which not only are irrelevant to the issues 

raised by the evidence but also have the effect of confusing the jury or relieving it from 

making findings on relevant issues.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 

920.)

We review claims of instructional error de novo. (People v. Posey (2004) 32 

Cal.4th 193, 218; People v. Waidla (2000) 22 Cal.4th 690, 733.) “ ‘ “ ‘A defendant 

challenging an instruction as being subject to erroneous interpretation by the jury must 

demonstrate a reasonable likelihood that the jury understood the instruction in the way 

asserted by the defendant.’ ” ’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 905.) A 

reviewing court reads the instructions as a whole to determine whether there is a 

reasonable likelihood the jury applied the challenged instruction in an impermissible 

manner. (People v. Wilson (2008) 44 Cal.4th 758, 803.) We presume the jurors 

understood, correlated, and correctly applied the instructions. (People v. Carey (2007) 41 
33

Cal.4th 109, 130.) In assessing the probable impact of the instructions on the jury, we 

consider the arguments of trial counsel. (People v. Young (2005) 34 Cal.4th 1149, 1202.) 

With these general principles in mind, we address and reject each of defendant’s 

arguments in turn. 

2. CALCRIM No. 316

The trial court instructed the jury with CALCRIM No. 316 as follows: “If you 

find that a witness has committed a crime or other misconduct, you may consider that fact 

in evaluating the credibility of the witness’s testimony. The fact that a witness may have 

committed a crime or other misconduct does not necessarily destroy or impair a witness’s 

credibility. It is up to you to decide the weight of that fact and whether that fact makes 

the witness less believable.” Defendant argues CALCRIM No. 316 could only apply to 

him, inasmuch as evidence of alleged misconduct by Doe and others was excluded. 

Defendant’s argument proceeds from this premise, which we will soon reject. 

As previously discussed, the jury heard evidence that K. asked A. to provide a 

false declaration impugning J. so she could get sole custody of Doe. Defense counsel 

referred to this evidence in closing argument, suggesting K. solicited perjury (§ 653f) and 

asserting Doe was unworthy of belief because “the apple doesn’t fall far from the tree.” 

On the record before us, we conclude CALCRIM No. 316 was warranted by the evidence 

that K. may have committed a crime or other misconduct. But even accepting the 

premise that CALCRIM No. 316 would have been seen as applying to defendant, we 

perceive no error. 

The jury was instructed with CALCRIM No. 1191A, in pertinent part, as follows: 

“The People presented evidence that the defendant committed the crimes of touching [A.] 

without her consent and touching J. Doe’s tongue when she was around seven years old 

that were not charged in this case. [¶] . . . [¶] If you decide that the defendant committed 

one or both of the uncharged offenses, you may, but are not required to, conclude from 

that evidence that the defendant was disposed or inclined to commit sexual offenses, and 
34

based on that decision, also conclude that the defendant was likely to commit and did 

commit the [l]ewd and [l]ascivious [a]cts [u]pon a [c]hild, as charged here. If you 

conclude that the defendant committed the uncharged offenses, that conclusion is only 

one factor to consider along with all the other evidence. It is not sufficient by itself to 

prove that the defendant is guilty of [l]ewd and [l]ascivious [a]cts [u]pon a [c]hild. . . . 

[¶] Do not consider this evidence for any other purpose.” 

Defendant argues CALCRIM No. 316 was inconsistent with CALCRIM No. 

1191A, as the former authorized jurors to consider other acts for the purpose of 

evaluating credibility, and the latter authorized jurors to consider the same evidence for 

propensity only. We discern no necessary conflict or reasonable probability of confusion. 

CALCRIM No. 316 instructed jurors they could consider evidence of other acts in 

evaluating defendant’s credibility, but were not required to do so. CALCRIM No. 1191A 

instructed jurors that they could consider other acts in evaluating defendant’s propensity 

to commit similar acts, but were, again, not required to do so. If jurors chose to consider 

defendant’s other acts for propensity, they would no longer have the option to consider 

the evidence for credibility. We presume the jury understood and followed these 

instructions. (People v. McKinnon (2011) 52 Cal.4th 610, 670.)

3. CALCRIM No. 361

The trial court instructed the jury with CALCRIM No. 361, which states: “If the 

defendant failed in his testimony to explain or deny evidence against him, and if he could 

reasonably be expected to have done so based on what he knew, you may consider his 

failure to explain or deny in evaluating that evidence. Any such failure is not enough by 

itself to prove guilt. The People must still prove the defendant guilty beyond a 

reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide 

the meaning and importance of that failure.” 

CALCRIM No. 361 should be given only when a testifying defendant completely 

fails to explain or deny incriminating evidence or claims to lack knowledge despite 
35

evidence showing he could reasonably be expected to have such knowledge. (People v. 

Cortez (2016) 63 Cal.4th 101, 117.) CALCRIM No. 361 is not directed at the 

defendant’s credibility as a witness, but to the reasonable inferences that may flow from a 

testifying defendant’s silence when that defendant fails to explain or deny evidence 

against him that is peculiarly within his knowledge. (Id. at pp. 117-119.) Because the 

instruction is not directed at a defendant’s credibility, a defendant’s testimony that is 

contradictory to other witnesses’ testimony or conflicts with the defendant’s extrajudicial 

statements is not a failure to explain or deny, warranting giving the instruction. (Id. at pp. 

117-118; People v. Saddler (1979) 24 Cal.3d 671, 683 [discussing substantially similar 

language in CALJIC No. 2.62].) Similarly, an indirect or vague answer, a failure to recall 

details, or implausible, bizarre, or unbelievable testimony is not a failure to explain or 

deny and does not warrant giving the instruction. (People v. Cortez, supra, at pp. 117-

119; People v. Roehler (1985) 167 Cal.App.3d 353, 393 [discussing substantially similar 

language in CALJIC No. 2.62].) No evidence supported the conclusion that defendant 

failed to explain or deny adverse evidence. We thus agree with defendant that the trial 

court erred in giving CALCRIM No. 361. We will address the question of prejudice after 

considering defendant’s next claim of instructional error.

4. CALCRIM No. 1191A

Defendant argues the trial court erred in giving CALCRIM No. 1191A with 

respect to the incident involving A. As noted, the trial court instructed the jury, in 

pertinent part, as follows: “The People presented evidence that the defendant committed 

the crimes of touching [A.] without her consent and touching J. Doe’s tongue when she 

was around seven years old that were not charged in this case. [¶] . . . [¶] If you decide 

that the defendant committed one or both of the uncharged offenses, you may, but are not 

required to, conclude from that evidence that the defendant was disposed or inclined to 

commit sexual offenses, and based on that decision, also conclude that the defendant was 

likely to commit and did commit the [l]ewd and [l]ascivious [a]cts [u]pon a [c]hild, as 
36

charged here.” According to defendant, the trial court erred because the court “made no 

finding on what asserted offense—section 243.4, subd. (e)(1), or some other offense—

might qualify [A.]’s description as a ‘sexual offense.’ ” We agree the trial court erred but 

find the error harmless. 

As drafted by the Judicial Council, the first two sentences of CALCRIM No. 

1191A provide: “The People presented evidence that the defendant committed the 

crime[s] of < insert description of offense[s] > __________________ that (was/were) not 

charged in this case. (This/These) crime[s] (is/are) defined for you in these instructions.” 

As is evident from the blank space and italicized language, the instruction is designed to 

include an adequate description of the uncharged offenses. 

The Bench Notes to CALCRIM No. 1191A confirm this: “In the first sentence, 

the court must insert the name of the offense or offenses allegedly shown by the 

evidence. The court must also instruct the jury on elements of the offense or offenses.” 

(Judicial Council of Cal., Crim. Jury Instns. (2020 ed.) Bench Notes to CALCRIM No. 

1191A, p. 969.) The purpose of these requirements is self-evident. If they are not 

informed what the elements of the uncharged sexual offenses are, jurors cannot 

reasonably be expected to determine whether the defendant committed them.

Here, rather than defining the uncharged offenses or instructing the jury on the 

elements of those uncharged offenses, the trial court referred to “the crimes of touching 

[A.] without her consent and touching J. Doe’s tongue when she was around seven years 

old.” The jury was thus left to speculate what the uncharged offenses were and what was 

required to prove defendant more likely than not committed them. This, too, was error. 

5. Prejudice

Having concluded the trial court erred in instructing the jury, we next consider 

whether the errors were prejudicial. Defendant does not suggest the instructional errors 

require review under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), and we 

do not believe they do. Accordingly, we apply the standard of prejudice for errors of 
37

state law set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Cf. People 

v. Saddler, supra, 24 Cal.3d at p. 683 [applying Watson standard to instructional error 

involving CALJIC No. 2.62]; People v. Jandres (2014) 226 Cal.App.4th 340, 359 

[applying Watson standard to instructional error involving CALCRIM No. 1191].) 

Applying Watson, we conclude there was no reasonable probability defendant would 

have achieved a more favorable outcome had the instructional errors not occurred.

Any harmful impact of CALCRIM No. 361 was mitigated by the language of the 

instruction itself. CALCRIM No. 361 applies only if the jury finds a failure to explain or 

deny evidence. Even then, the instruction makes clear that such a finding does not create 

a presumption of guilt or warrant an inference of guilt; nor does it relieve the prosecution 

of the burden of proving every essential element of the crime beyond a reasonable doubt; 

and it leaves the meaning and importance of defendant’s failure to explain or deny to the 

jury. (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.) 

The potential harm of CALCRIM No. 361 was further mitigated by CALCRIM 

No. 200, which instructed the jury in pertinent part as follows: “Some of these 

instructions may not apply, depending on your findings about the facts of the case. Do 

not assume just because I give a particular instruction that I am suggesting anything about 

the facts. After you have decided what the facts are, follow the instructions that do apply 

to the facts as you find them.” We presume the jury followed this instruction. (People v. 

Carey, supra, 41 Cal.4th at p. 130.) Thus, had jurors found that defendant explained and 

denied the evidence against him, we can assume they disregarded CALCRIM No. 361

and defendant cannot have suffered any prejudice. 

That brings us to CALCRIM No. 1191A. Applying Watson, we consider whether 

it is reasonably probable defendant would have obtained a more favorable outcome had 

the uncharged offense against A. been defined in the instruction. We find no such 

probability here. This was not a case where the testimony on uncharged offenses 

significantly outweighed the testimony on charged offenses or otherwise cast the 
38

defendant in a different light to the jury. Contrary to defendant’s suggestion, there can be 

no real doubt the uncharged acts qualified generally as “sexual offenses” within the 

meaning of Evidence Code section 1108 (see § 243.4, subd. (e)(1)), so there is no 

material risk the jury used unqualified conduct as propensity evidence. Consequently,

there was no reasonable probability of a more favorable outcome had the jury been given 

a version of CALCRIM No. 1191A that named and defined the uncharged sexual 

offenses. 

F. Alleged Sentencing Errors

Finally, defendant argues the trial court erred in imposing the upper term on count 

2 (the babysitting incident) in violation of Senate Bill 567 and section 1170, subdivision 

(b).13 We agree.

1. Senate Bill 567

Effective January 1, 2022, Senate Bill 567 amended section 1170 to limit the trial 

court’s discretion to impose a sentence greater than the midterm. (§ 1170, subd. (b)(1), 

(2), as amended by Stats. 2021, ch. 731, § 1.3.) To impose a sentence beyond the 

midterm, the sentence must be justified by the aggravating factors, and the facts 

underlying the circumstances must have been stipulated to by defendant or found true 

beyond a reasonable doubt, except that the trial court may rely upon certified records of 

conviction to find a prior conviction proven. (§ 1170, subd. (b)(1)-(3), as amended by 

Stats. 2021, ch. 731, § 1.3.) 

The parties agree, as do we, that Senate Bill 567 applies retroactively to 

defendant’s nonfinal case under In re Estrada (1965) 63 Cal.2d 740, 744-745. (People v. 

13 Defendant’s opening brief also argues the trial court abused its discretion in dismissing 

count 1 and sentencing him on the remaining lewd act counts (counts 2, 3, 4, 6, 7, 8, and 

9). Defendant appears to abandon this contention in his reply brief. In any event, the 

contention lacks merit. (See § 288.5, subd. (c); and see People v. Alvarez (2002) 100 

Cal.App.4th 1170, 1177.) 
39

Zabelle (2022) 80 Cal.App.5th 1098, 1109 (Zabelle).) The parties also agree, and again, 

so do we, that the trial court relied on aggravating factors that were not found true in the 

manner now required by section 1170. The parties disagree on the question of harmless 

error. 

To assess harmless error, we follow the two-step analysis set forth in Zabelle,

supra, 80 Cal.App.5th at pp. 1110-1115. First, we must address whether “the trial court 

could have imposed the upper term sentence” (id. at p. 1112) consistent with the Sixth 

Amendment’s jury trial guarantee under the standard set forth in People v. Sandoval 

(2007) 41 Cal.4th 825 (Sandoval), which requires us to determine whether the jury would 

have found true beyond a reasonable doubt at least one of the aggravating circumstances 

the trial court relied on. (Id. at p. 839.) Second, we must assess whether the trial court 

“would have imposed the upper term sentence even absent the error” under the state law 

standard set forth in Watson. (Zabelle, supra, at p. 1112.) “In particular, we must 

consider whether it is reasonably probable that the trial court would have chosen a lesser 

sentence in the absence of the error.” (Ibid.) “ ‘A “reasonable probability” “does not 

mean more likely than not, but merely a reasonable chance, more than an abstract 

possibility.” ’ ” (People v. Soto (2022) 79 Cal.App.5th 602, 610.) Our analysis begins 

and ends with Zabelle’s first step. 

The trial court relied on two aggravating factors in imposing the upper term: the 

particular vulnerability of the victim, and the defendant taking advantage of a position of 

trust and confidence. We cannot say either of these factors was established beyond a 

reasonable doubt. The People argue Doe’s vulnerability would have been found beyond 

a reasonable doubt given her age, which was an element of the offenses for which 

defendant was found guilty. But age alone is not enough. (People v. Alvarado (2001) 87 

Cal.App.4th 178, 195.) Determining whether a victim was “ ‘particularly vulnerable’ ”

requires “an imprecise quantitative or comparative evaluation of the facts.” (Sandoval, 

supra, 41 Cal.4th at p. 840; see also People v. Esquibel (2008) 166 Cal.App.4th 539, 558 
40

[“ ‘a “particularly vulnerable” victim is one who is vulnerable “in a special or unusual 

degree, to an extent greater than in other cases” ’ ”].) We cannot conclude beyond a 

reasonable doubt that the jury unquestionably would have found Doe to have been 

“particularly vulnerable.” Although Doe was young, the evidence showed there were 

usually other family members around, and she was able to stop defendant and seek safety 

on several occasions. Accordingly, we cannot say beyond a reasonable doubt that the 

jury would have found Doe was particularly vulnerable had the issue been submitted to 

it.

Nor can we say the jury would have found beyond a reasonable doubt that

defendant took advantage of a position of trust and confidence to commit the offenses. 

The evidence was undisputed that defendant was Doe’s step-grandfather, and jurors

obviously believed he found ways to be alone with her from time to time. However, the 

role of step-grandfather does not necessarily imply that defendant occupied a position of 

trust and confidence with respect to Doe. (Cf. People v. Jones (1992) 10 Cal.App.4th 

1566, 1577 [as biological father, “defendant used a position of trust and confidence, that 

of a legal parent, to commit the offense”]; People v. Clark (1992) 12 Cal.App.4th 663, 

666 [stepfather entrusted with caring for the victim occupied a position of trust and 

confidence].) Furthermore, the evidence that Doe was placed in defendant’s care was 

hotly contested. Although defendant and Doe were members of the same blended family, 

numerous witnesses testified she was not entrusted to his care. Even A., who testified for 

the prosecution, was careful to say Doe was left with H., not defendant. 

On the record before us, we cannot be sure the jury would have found either 

aggravating circumstance true beyond a reasonable doubt. Consequently, we cannot say 

the trial court would have issued the same sentence had it been limited to the 

circumstances it could properly consider. Thus, we must vacate defendant’s sentence and 

remand for resentencing. (Zabelle, supra, 80 Cal.App.5th at p. 1115.) We express no 

opinion as to the appropriate sentence on remand.
41

III. DISPOSITION

The conviction is affirmed and the sentence is vacated. The matter is remanded to 

the trial court for resentencing consistent with the recent amendment to section 1170. 

Following resentencing, the trial court must prepare an amended abstract of judgment and 

forward a certified copy to the Department of Corrections and Rehabilitation. 

/S/

 

RENNER, J.

We concur:

/S/

 

ROBIE, Acting P. J.

/S/

 

KRAUSE, J.