Filed 11/2/22 P. v. Martinez CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE GEORGE MARTINEZ,

Defendant and Appellant.

 B316887

 (Los Angeles County

 Super. Ct. No. KA118790)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mike Camacho, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

A jury convicted Jesse George Martinez (defendant) of 

sexual penetration of a child (Pen. Code,1 § 288.7, subd. (b); 

count 1 [victim E.J.]), lewd act on a child (§ 288, subd. (a); count 2 

[victim J.V.]), and lewd act on a child (§ 288, subd. (a); count 3 

[victim E.J.]), and the court sentenced him to 15 years to life in 

state prison.

On appeal, defendant contends that the evidence was 

insufficient to support the jury’s conviction on count 3. He also 

contends that the prosecution was improperly allowed to present 

expert witness testimony on Child Sexual Abuse Accommodation 

Syndrome (CSAAS), and therefore his convictions on all three 

counts should be reversed. Finally, he contends the trial court 

failed to apply the correct legal standard on his motion for new 

trial, requiring at least a remand to have the court consider the 

motion under the correct standard.

We reject all of defendant’s arguments and affirm.

BACKGROUND

I. The Information

In an information filed on August 20, 2019, defendant was 

charged with oral copulation/sexual penetration with child under 

10 in violation of section 288.7, subdivision (b) (count 1) and lewd 

act upon a child in violation of section 288, subdivision (a) (counts

2 and 3).2 Section 667.61, subdivisions (b) and (e) multiple victim 

1 All further statutory references are to the Penal Code 

unless otherwise noted.

2 In the information, the counts were numbered 2, 3 and 4, 

and there was no count 1. The superior court later designated 

the count identified in the information as number 2 as “count 1,” 

the count identified in the information as number 3 as “count 2,” 
3

allegations were alleged as to counts 2 and 3. Counts 1 and 3 

alleged violations occurring between May 22, 2014, and May 21, 

2016, against E.J.; count 2 alleged a violation occurring on 

August 5, 2018, against J.J.

Defendant pled not guilty to all counts.

II. The Trial

A. Prosecution Case

1. E.J.’s and J.J.’s Family Was Close to 

Defendant’s Family

E.J. was born in 2008 and J.J. was born in 2012. 

Defendant was born in 1994. Defendant is known as “Junior.”

Defendant lived with his parents, Rosa and Jesse Martinez, 

Sr.; his younger brother and sister also lived in the home. The 

Martinez family lived on the same street in Pomona as E.J. and 

J.J., and were very close friends with E.J.’s and J.J.’s mother, 

Blanca. Rosa and Jesse Martinez, Sr. were godparents to E.J. 

and J.J., and Blanca paid Rosa3 to babysit J.J. E.J. and J.J. often 

spent time at the Martinez home.

2. E.J.’s and J.J.’s Mother Testifies

According to Blanca, defendant was usually in his room

when she and her daughters visited but he did play with the 

girls. Once, when E.J. was about eight, Blanca found her in 

and the count identified in the information as number 4 as “count 

3.” The parties refer to the counts as 1, 2 and 3, and we will do 

the same.

3 Because we refer to several members of the Martinez 

family, we will occasionally use only their first names; no 

disrespect is intended.
4

defendant’s room; the door was open, and defendant was hugging 

E.J. as she was standing between defendant’s legs with her back 

to defendant. Blanca told E.J. that she did not like this. After 

this incident, Blanca continued to allow the girls to go back to the 

house, although she was mostly with them and they did not go 

back for a while after the incident.

On many occasions, Blanca had told her children to tell her 

if anyone tried to touch them inappropriately.

On August 5, 2018, E.J. and J.J. were at the Martinez 

house to have pizza. Blanca got home from work around 6:30 

p.m. that evening. Soon after that, E.J. went home from the 

Martinez house; she told Blanca that J.J. did not want to come 

home, but did not say why. E.J. changed her clothing and told 

Blanca that she had wet herself when defendant tickled her. 

Blanca thought it was normal for that to occur and was not 

troubled by it. Blanca told E.J. to bring J.J. home.

E.J. returned with J.J., and J.J. then sat with Blanca on 

the couch and played with Blanca’s phone. After a few moments, 

J.J. left to go to the bathroom, and when she returned she said, 

“My colita is hurting.” According to Blanca, in their home they 

used that word to mean “vagina.” Blanca asked E.J. to go to her 

room.

Blanca then questioned J.J. about why her colita hurt. At 

first, J.J. did not want to talk further, and said, “Mommy, you’re 

going to be upset,” but Blanca reassured her she would take care 

of her and would not be upset. J.J. said that she went to

defendant’s room, where defendant asked if she wanted to sit on 

his lap and then put his hand into her pants, but not under her 
5

underwear, and “tickle[d]” her vagina until she told him to stop.4

J.J. told Blanca that defendant had used two fingers, and she 

described how defendant touched her. Blanca started crying, and

J.J. tried to comfort her. E.J. was not present for this 

conversation.

A short time later, Blanca went over to the Martinez house, 

and told Rosa what J.J. had told her. When Blanca returned 

home, she was met by E.J., who immediately informed her that 

defendant had grabbed her “colita” when she was between six 

and eight years old. Blanca asked her why she had not told her 

sooner, and E.J. said, “I was confused.” Blanca returned to the 

Martinez house and told defendant’s parents what E.J. had told 

her.

3. J.J. Is Examined by Nurse Carolyn Clark

The next day, August 6, 2018, Blanca took E.J. and J.J. to 

the hospital. A sexual assault exam was conducted on J.J. by

registered nurse Carolyn Clark at Pomona Valley Medical 

Center’s Sexual Assault Response Team room; Clark followed a 

standard protocol and documented the examination on a

standardized state form; Clark is a specialist who had conducted 

hundreds of such examinations. Clark took genital and anal

photographs. On one of the photos, she observed a white line on 

a part of the vagina known as the posterior fourchette; she 

thought the white line could have been a labial adhesion, which 

is a normal childhood variant, a small healing tear, or linea

4 J.J. said she went to “Junior’s room”; Blanca asked J.J. 

which “Junior,” and J.J. said it was the one from Nina [Rosa 

Martinez], “the big one.” One of E.J.’s and J.J.’s brothers, 

Antonio, is also known as “Junior.”
6

vestibularis. When she examined the area, she detected a small 

tear, “like a chip of skin taken out.” This tear could have been 

caused by the type of rubbing J.J. had described. The tear was 

abnormal and would cause pain during urination. There were no 

anal injuries. J.J.’s skin in the posterior fourchette split a little 

during the examination; this sometimes happens if the tissue is 

already weakened; also, a six-year-old girl is less estrogenized 

than a woman, making the vaginal/genital area less stretchy. 

During the examination, J.J. reported that it hurt when she used 

the restroom. Other than a tear of the skin, a urinary tract 

infection can make it painful to urinate.

Blanca, E.J., and J.J. also spoke to the police at the 

hospital.

4. E.J. Testifies

E.J. testified as follows. On August 5, 2018, she and J.J. 

were at the Martinez house to have pizza. Defendant, his 

parents, his sister Andrea, and his brother Chris were there; E.J. 

could not remember if defendant’s sister Tiffany was there.

Defendant tickled E.J., causing her to wet herself. Defendant 

often tickled her, and she enjoyed it. She went home to change. 

Blanca asked E.J. where J.J. was. E.J. responded that she had 

just come home to change and would go back to get J.J. When 

she returned to the Martinez house, E.J. saw J.J. and defendant 

emerge from defendant’s bedroom.

Once E.J. and J.J. returned home, J.J. said she needed to 

talk to their mother, and their mother told E.J. to leave the room. 

E.J. could not hear their conversation and did not know what it 

was about. Later, she noticed her mother crying and walking 

back and forth between the two houses and talking with her 

uncle, who lived with them. When her mother returned to the 
7

house, E.J. told her that defendant had touched her in the past. 

She did not know what had happened to J.J., but she “had a 

feeling” that she should tell her mother about the time defendant 

had touched her.

E.J. then testified that she had been abused by defendant

when she was about J.J.’s current age (seven). She had gone over 

to the Martinez house and only defendant was there. Defendant 

was carrying her and she was “kind of like falling asleep”; she 

was not asleep but her eyes were closed. Her head was on 

defendant’s shoulder, and he was holding her from her butt. She 

felt defendant’s hands going under her shorts and under her 

underwear. When she felt defendant feeling around, she moved 

and opened her eyes, and defendant froze. E.J. testified that 

“then that’s when, like, I just kind of stopped too because I didn’t 

know what was going on, and then he kept feeling around after 

that.” Defendant started feeling around again a few seconds 

after he froze and he moved his hand away a few seconds later. 

E.J. felt defendant’s finger in her butt, moving front to back; she 

was not sure if it went in but she felt some pressure and pain in 

her butt. After defendant moved his hand away, he let E.J. 

down. E.J. watched defendant wash his hands, she asked him 

why and he said “just because,” and then she went home. Even 

though her mother had asked her to tell her if anyone ever 

touched her private parts, E.J. did not promptly report the 

incident because she did not really understand what had 

happened.

On cross-examination, E.J. stated that the incident where 

defendant touched her could have happened when she was six, 

seven, eight or nine years old. Between that touching and 

August 5, 2018, E.J. slept over at defendant’s home.
8

5. J.J. Testifies

J.J. testified at trial as follows. J.J. knew she was in court 

because someone had touched her, and she identified defendant 

as the person who did it. When asked where defendant had 

touched her, she could not respond because she claimed she did 

not know the names of body parts. She then demonstrated that 

he had touched her vaginal area and described it as “[w]here I 

pee.” She explained that defendant touched her when she was in 

his room watching him play video games. She was on defendant’s 

lap. She demonstrated how defendant touched her by using her 

index finger to rub the table in front of her from side to side. 

Defendant put his hand or finger inside of her underwear, in the 

front. The touching made her feel uncomfortable. She told him 

to stop, and he stopped.

J.J. then went home; at home she went to the bathroom 

and it burned when she urinated. She told her mother it hurt 

when she peed. She said she could not really remember what she 

told her mother after that, and did not remember going to the 

hospital, being examined, or talking to the police.

On cross-examination, J.J. responded “No” when asked if 

she remembered the touching well. She then acknowledged that 

she had earlier said she did not remember the touching, and had 

spoken with the prosecutor, which helped her remember.5 On re5 J.J.’s specific testimony was as follows:

“Q But earlier did you ever say you didn’t remember?

“A Well, my lawyer talked to me.

“Q After that, did it help you remember?

“A Yes.

“Q Okay. If you didn’t talk to her, would you be able to 

remember well?
9

direct examination, J.J. again acknowledged she had earlier said 

she did not remember, and explained she said that because she 

was nervous. She also said that she felt more comfortable 

testifying with her aunt as a support person instead of the 

support dog she had earlier, and because she had a stuffed 

animal with her.

6. Dr. Jayme Jones Testifies Regarding CSAAS

Dr. Jayme Jones, a clinical psychologist, testified regarding 

CSAAS. Dr. Jones uses the term “model” instead of “syndrome,” 

because the latter term is commonly used to mean that a 

diagnosis can be given; she described CSAAS as “a model to help 

understand the behavior of children who have been abused.” She 

summarized the five components of CSAAS as follows: “There 

are two parts of the model that have to do with the context in 

which abuse occurs. The third part of the model is called 

accommodation and talks about the ways that children cope with 

ongoing abuse. The last two parts of the model, delayed

disclosure and retraction, address disclosure patterns in children 

who have been abused.”

The first element is secrecy, which refers to the fact that 

child sexual abuse commonly occurs when no witnesses are 

present. Dr. Jones explained that “[t]he fact that it is happening

in secret without other people aware is an unspoken message to 

“A Maybe. What was the question again?

“Q If you didn’t talk to your lawyer, would you have been 

able to remember so well?

“A No.”

Defense counsel’s question to J.J. about her not 

remembering “earlier” was likely a reference to a hearing held 

earlier that day outside the presence of the jury.
10

the child that they are not supposed to talk about it.” Also, the 

victim is often expressly or impliedly told to keep the incident a 

secret.

The second element, helplessness, refers to the size 

disparity between abuser and child, the child’s lack of resources 

to avoid or escape the situation, and the fact children are often 

taught to listen to adults even if what they are saying does not 

make sense.

As to the third element, accommodation, Dr. Jones stated: 

“So most people’s expectation is, if a child were abused, they 

would fight back. They would immediately say something. The 

reality is they rarely fight back. They often freeze or pretend to 

be asleep, and the exception is to say something.” Such a 

response sometimes is explained by the fact that the child simply 

does not fully understand what is going on.

The fourth element is delayed or unconvincing disclosure, 

which refers to the fact that child victims commonly do not report 

their abuse until long after the fact or report a little bit at a time. 

It is also common for child victims to make a limited disclosure to 

test the listener’s response. The “most common disclosure” is for 

a child to say they do not like a specific person, and then provide 

more information depending on the initial response.

Dr. Jones stated that “children disclose for a variety of

reasons, most often they don’t unless something happens. So if 

they are in pain, if they are worried about a sibling being abused, 

if they no longer have contact with the person abusing them and 

now feels safe, there is often, when people disclose, a triggering

event.” She testified it is common for victims to continue 

associating with their abuser because they genuinely like other 

aspects of the relationship, because they believe the abuse will 
11

not recur, or because they do not want to risk upsetting their 

environment.

The fifth element of CSAAS, retraction, is common if 

something negative occurs after disclosure; an example is that a 

child may retract if they believe it might end an ongoing court 

process. Stuffed animals or comfort animals can help the child 

discuss the abuse in court.

Dr. Jones explained that it is unusual for children to 

remember specific dates and times unless otherwise significant, 

such as a birthday.

Dr. Jones agreed that part of the purpose of the model is to 

dispel common misperceptions about how children react to sexual 

abuse. She also agreed that she was not in court to opine if any 

abuse had occurred.

On cross-examination, Dr. Jones agreed that sometimes 

parents or other people in the child’s household steer the child to 

accuse someone, and she indicated this occurs in divorce cases. 

Dr. Jones also stated that, in general, children can be known to 

lie, and they often tell lies to get out of trouble.

7. The Jury Hears Forensic Interviews of E.J. and 

J.J.

Pomona Police Detective Matt Childers, who handled the 

investigation, testified. On August 15, 2018, Childers took E.J. 

and J.J. for forensic interviews at the Children’s Advocacy Center 

(CAC). As described by Childers, “a forensic interview is an 

interview done by a professional interviewer who specializes in

interviewing children who have been victims of child abuse or 

sexual abuse. The interview is designed to be non-leading and to 

gain factual information about the case from the children to be 

used for court purposes, and it’s also recorded.”
12

At CAC, E.J. and J.J. were interviewed by Susy Flores and 

the interviews were video-recorded. The video recordings of the 

interviews were played at trial.6

During her interview, E.J. talked about two separate 

occasions. On one occasion when she was about J.J.’s age, 

defendant carried her while she closed her eyes but she did not go 

to sleep. Defendant put his finger into her underwear. E.J.’s 

head was on defendant’s shoulder, and he was carrying her by 

her bottom. Defendant stopped and froze when E.J. moved a bit, 

and then started touching her again until she said she needed to 

use the bathroom and went home. She said it hurt inside of her 

bottom.

E.J. also said that defendant would grab her and sit her on 

his lap, and she could feel his “boy private part.” She said it felt 

“weird,” and that “[i]t felt like there was like a ball or something.” 

E.J. said that she would get up and defendant would just place 

her on his lap again.

During her interview, J.J. first disclosed that her uncle hit 

her with a belt because she called him dad, but he did not hit her 

“that rough.” When Flores asked what J.J. had talked to the 

police about, her responses were vague and confusing and she 

repeatedly claimed not to remember. After much questioning, 

J.J. said that defendant had touched her on her body, but she 

was then evasive, claiming she could not describe the body part 

he had touched, and saying she had already told her mom and 

the police. She asked, “Are we almost done?” and said she was 

hungry and thirsty. She was evasive when Flores asked her to 

6 All of the People’s exhibits were received into evidence 

without objection.
13

draw on a picture of a girl’s body where defendant had touched 

her.

8. The Jury Hears Excerpts from an Interrogation 

of Defendant

The jury also heard evidence regarding what defendant 

said during an interview Childers conducted as part of his 

investigation. Childers testified that defendant admitted during 

the interview that he had J.J. on his lap on August 5, 2018. 

Childers also testified that, at first, defendant said he only 

carried E.J. and J.J. under their armpits, but he then stated he 

carried them by their waists sometimes and he also 

acknowledged that his hand could have touched E.J.’s butt. 

Childers’s interview of defendant was video-recorded, and 

excerpts of the recording were played for the jurors. Later in the 

interview, defendant acknowledged he might have touched E.J.’s 

and J.J.’s buttocks accidentally while picking them up, but 

denied ever inserting his finger or touching their private parts 

intentionally or that his finger ever went “into” E.J.’s butt.7 

According to defendant, E.J. often wanted to sit in his lap and to 

have him pick her up.

7 The excerpts initially shown to the jury included 

defendant’s statement he “may” have touched E.J.’s butt, but did 

not include the question he was responding to or other portions of 

his response in which he denied that he touched E.J.’s butt 

intentionally or that he put his finger “into” E.J.’s butt, either 

intentionally or accidentally. At the court’s direction, defense 

counsel refreshed Childers’s recollection with a transcript of the 

additional portions of the interview, and later an audio recording 

of the additional portions was played for the jury.
14

B. Defense Case

1. Nurse Nicole Yadon

Nicole Yadon, a forensic nurse who had performed many 

sexual assault examinations, testified regarding her review of 

Clark’s physical examination of J.J. She stated that the 

documentation prepared by Clark should have noted any injury 

caused during the examination. On a photograph taken by Clark 

of J.J., Yadon saw what looked like a tear or cut or laceration. 

Yadon disagreed with Clark’s interpretation of the white line on 

one of the photographs, concluding it showed an area of lighter 

tissue. She did not believe that the lighter tissue was in the 

same area as the injury shown on other photographs. Yadon 

opined that it would be unusual to find a healing injury only a 

day after the injury occurred. Yadon opined that it was possible 

the injuries shown on the photographs occurred during the 

examination. She also opined it was possible the apparent wound 

could have been caused in some other way, such as rubbing by a 

person or the child’s clothing, “vigorous wiping when using the 

restroom,” or poor hygiene. She stated that a urinary tract 

infection could cause burning during urination.

2. Rosa Martinez

Defendant’s mother Rosa Martinez testified that she did 

not allow E.J. and J.J. to play with defendant, and they were 

always with her at the house. She never saw defendant 

inappropriately touch E.J. or J.J. J.J. would have defendant pick 

her up sometimes. She saw E.J. and J.J. sometimes go into 

defendant’s bedroom but he would tell them to leave, and it was 

the house rule that the girls should not go into that room.

Rosa testified that she left work on August 5, 2018, at 

around 6:00 p.m. She testified to a different version of what 
15

happened that evening than did Blanca, stating that she and 

Blanca ate tacos at a restaurant, while the Martinez children and 

E.J. were at the Martinez house, and after she and Blanca 

returned they sat and talked in her kitchen until 11:30 p.m. 

According to Rosa, at that time J.J. was not at the Martinez 

house, and defendant was in his room with the door closed. At 

some point J.J. came over and said she was hungry, and Blanca 

left with J.J. Blanca came back 20 minutes later; she was crying 

and she told Rosa she wanted to talk.

Rosa saw E.J. and J.J. on defendant’s lap on occasion; 

defendant would take them off, but J.J. was stubborn and wanted 

to play with defendant. 

3. Andrea Martinez

Defendant’s sister Andrea Martinez, who was 15 years old 

in 2018, testified that on the day in question, she and her family 

and E.J. bought pizza at Costco and brought it back to the 

Martinez house; while they were eating J.J. came over. She 

never saw defendant touch E.J. or J.J. inappropriately. She 

stated that defendant was trustworthy around children.

4. Jesse Martinez, Sr.

Defendant’s father Jesse Martinez, Sr. authenticated 

photographs of his house, and stated that it was a small house. 

On August 5, 2018, at around 5:30 p.m., Jesse, Sr. went with his 

daughter Andrea and E.J. to Costco to buy pizza and they 

brought it back to the house. When they returned, only 

defendant and his brother Christopher Martinez were at the 

house. While they were eating J.J. came over. After eating, E.J. 

and J.J. played with Andrea in the living room; at some point 

E.J. went home to get her tablet, and when she returned about 

five minutes later she told J.J. they needed to go home because 
16

they were going to buy school supplies. E.J. and J.J. went home 

and Jesse, Sr. did not see them again that day. Jesse, Sr. 

testified he did not see E.J. or J.J. go into defendant’s room that 

day. He believed that defendant was trustworthy around 

children. He recalled that defendant did tickle E.J. and J.J. on 

occasion, and the girls sought out such attention.

5. Christopher Martinez

Defendant’s brother Christopher Martinez testified he 

never saw defendant touch E.J. or J.J. inappropriately.

6. Tiffany Martinez

Defendant’s sister Tiffany Martinez testified that E.J. and 

J.J. visited the Martinez house often and never showed any fear 

of defendant, and would hug him. She never saw E.J. or J.J. go 

into defendant’s room; they would knock on the door and he 

would say he was busy. She never saw defendant touch E.J. or 

J.J. inappropriately. She considered defendant to be trustworthy 

around children. On August 5, 2018, Tiffany was at the Martinez 

house until about 3:00 p.m. or 4:00 p.m. and returned between 

11:00 p.m. and midnight.

C. Jury Instruction on CSAAS

At the close of evidence, the court instructed the jury 

regarding Dr. Jones’ testimony about CSAAS; this version on the 

instruction only referred to E.J.8 After the jury was excused, the 

8 The instruction stated: “You have heard testimony from 

Jayme Jones regarding child sexual abuse accommodation

syndrome. Jayme Jones’s testimony about child sexual abuse 

accommodation syndrome is not evidence that the defendant 

committed any of the charged crimes against him or any conduct 

or crimes with which he was not charged. You may consider this 
17

prosecutor informed the court the People intended for the CSAAS 

testimony to apply to J.J. as well. After considering the issue, 

the court indicated it was inclined to have the instruction apply 

to J.J. as well, noting the “forensic interview in which she 

reluctantly, quite frankly, refused to, again, discuss the issues 

regarding the touching that she had earlier disclosed to her 

mother.” The court also later referenced defense counsel’s crossexamination of J.J. based on her remembering the abuse after 

speaking with the prosecutor. Defense counsel objected, arguing

that CSAAS did not apply to J.J. because she disclosed “right 

away.” The prosecutor argued that J.J. did not immediately 

disclose, and instead only did so when her mother talked to her 

after she complained it hurt when she went to the bathroom.

The court overruled the defense objection, concluding “it’s 

fair game to argue [J.J.’s] subsequent behavior beyond the initial 

disclosure in explaining to the jury why there was so much 

reluctance on her part to, again, discuss those issues.” The jury 

was subsequently instructed under a modified version of 

CALCRIM No. 1193 (Testimony on Child Sexual Abuse 

Accommodation Syndrome) as to both E.J. and J.J.

III. Conviction and Sentencing

The jury convicted defendant on all three counts. As to 

counts 2 and 3, the jury found true the multiple victim allegation 

(§ 667.61, subd. (e)(4)).

The trial court denied defendant’s motion for a new trial.

evidence only in deciding whether or not [E.J.’s] conduct was not 

inconsistent with the conduct of someone who has been molested 

and in evaluating the believability of her testimony.”
18

The court sentenced defendant to 15 years to life in state 

prison as to count 1, imposed a concurrent sentence as to count 2, 

and stayed the sentence as to count 3 under section 654.

Defendant filed a notice of appeal before he was sentenced, 

but we treat the notice as filed immediately after rendition of 

judgment. (See Cal. Rules of Court, rule 8.308(c) [“A notice of 

appeal filed before the judgment is rendered or the order is made 

is premature, but the reviewing court may treat the notice as 

filed immediately after the rendition of judgment or the making 

of the order”].)

DISCUSSION

I. Substantial Evidence Supports the Conviction on 

Count 3

Defendant contends that his conviction on count 3 for a 

lewd act on E.J. is based on constitutionally insufficient evidence. 

We conclude there was constitutionally sufficient evidence to 

support defendant’s conviction on count 3 under two separate 

factual theories.

A. Legal Principles and Standard of Review

Section 288, subdivision (a) prohibits “willfully and lewdly 

commit[ing] any lewd or lascivious act” on the body of a child 

under the age of 14, “with the intent of arousing, appealing to, or 

gratifying the lust, passions, or sexual desires of that person or 

the child.” “ ‘Any touching of a child under the age of 14 violates 

this section, even if the touching is outwardly innocuous and 

inoffensive, if it is accompanied by the intent to arouse or gratify 

the sexual desires of either the perpetrator or the victim.’ ” 

(People v. Shockley (2013) 58 Cal.4th 400, 404, quoting People v. 

Lopez (1988) 19 Cal.4th 282, 289.) “ ‘[T]he trier of fact looks to all 
19

the circumstances, including the charged act, to determine 

whether it was performed with the required specific intent.’ 

[Citations.] Other relevant factors can include the defendant’s 

extrajudicial statements [citation], other acts of lewd conduct 

admitted or charged in the case [citations], the relationship of the 

parties [citation], and any coercion, bribery, or deceit used to 

obtain the victim’s cooperation or avoid detection [citation].” 

(People v. Martinez (1995) 11 Cal.4th 434, 445.)

A claim of constitutionally insufficient evidence must be 

rejected if substantial evidence supports the verdict. (Jackson v. 

Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; 

People v. Johnson (1980) 26 Cal.3d 557, 576.)

In reviewing the sufficiency of the evidence under the 

substantial evidence standard, an appellate court does not “ ‘ “ask 

itself whether it believes that the evidence at the trial established 

guilt beyond a reasonable doubt.” [Citation.] Instead, the 

relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.’ ” (People v. Boatman (2013) 221 Cal.App.4th 

1253, 1262, italics omitted.)

“In determining whether evidence is sufficient to support a 

verdict, we examine the entire record, viewing the evidence in the 

light most favorable to the judgment and presuming in support of 

the verdict the existence of every fact the jury could reasonably 

deduce from the evidence. The issue is whether the record so 

viewed discloses evidence that is reasonable, credible and of solid 

value such that a rational trier of fact could find the elements of 

the crime beyond a reasonable doubt.” (People v. Llamas (1997) 

51 Cal.App.4th 1729, 1736.) “ ‘A reviewing court neither 
20

reweighs evidence nor reevaluates a witness’s credibility.’ ” 

(People v. Covarrubias (2016) 1 Cal.5th 838, 890.)

B. Analysis

Defendant contends “[t]he sole factual basis for [the]

conviction on count 3 was [E.J.] telling the forensic interviewer 

that she felt [defendant’s] ‘boy private part’ while sitting on his 

lap, ‘like about sitting on a ball.’ ” This is not accurate. In fact, 

the jury was presented with two factual theories on which to find 

defendant guilty on count 3. The prosecutor argued that count 3 

could be based on a second touching that occurred when 

defendant was holding E.J. and she feigned sleep or the incident 

where E.J. was on defendant’s lap and felt his penis.

9

It cannot be determined which ground the jury relied 

upon.10 In this situation, if there is sufficient evidence to support 

either ground, then there is sufficient evidence supporting the 

conviction. (People v. Marks (2003) 31 Cal.4th 197, 233 [“Where 

9 The court instructed the jury that “[t]he People have 

presented evidence of more than one act to prove” count 3, and 

that the jury could only convict on this count if they agreed that 

defendant had committed at least one of the acts and they agreed 

which act.

10 The trial court stayed the sentence on count 3 pursuant 

to section 654 “because it contains the same—essentially, based 

upon the same acts, the same victim, and the same time frame 

that supported the conviction of the defendant in count [1].” The 

parties debate what this ruling suggests about what the trial 

court believed was the precise factual basis for the jury’s finding 

on count 3, but this is irrelevant because there is no dispositive 

indication in the record what the jury actually found was the 

basis for its verdict on count 3.
21

the jury considers both a factually sufficient and a factually 

insufficient ground for conviction, and it cannot be determined on 

which ground the jury relied, we affirm the conviction unless 

there is an affirmative indication that the jury relied on the 

invalid ground”]; accord, People v. Guiton (1993) 4 Cal.4th 1116, 

1128-1129; People v. Llamas, supra, 51 Cal.App.4th at p. 1740.)

We conclude substantial evidence supports defendant’s 

conviction on count 3 under the theory that, when defendant 

carried E.J. and put his hand under her shorts and underpants, 

he touched her twice, once satisfying the elements of a 

“penetration” in violation of section 288.7, subdivision (b)11 and a 

second time satisfying the elements for lewd conduct under 

section 288, subdivision (a). (See People v. Scott (1994) 9 Cal.4th 

331, 346-347 [“Each individual act that meets the requirements 

of [§] 288 can result in a ‘new and separate’ statutory violation”], 

quoting People v. Harrison (1989) 48 Cal.3d 321, 329.) First, 

there is substantial evidence that defendant touched E.J. twice 

under her underpants in the area of her vagina and anus. E.J. 

testified that when she felt defendant feeling around under her 

underwear, she moved and opened her eyes, and defendant froze

and “then that’s when, like, I just kind of stopped too because I

didn’t know what was going on, and then he kept feeling around 

after that.” (Italics added.) She later stated that defendant 

started feeling around again a few seconds after he froze. E.J. 

also described during her forensic interview that defendant

11 This is the basis for defendant’s conviction on count 1. 

Defendant does not challenge the sufficiency of the evidence on 

count 1.
22

stopped and froze when E.J. moved a bit, and then started

touching her again.

There is also substantial evidence that defendant acted 

with lewd intent. Under People v. Martinez, supra, 11 Cal.4th at 

page 445, lewd intent can be inferred from “ ‘all the 

circumstances, including the charged act,’ . . . other acts of lewd 

conduct admitted or charged in the case [citations], . . . and any 

coercion, bribery, or deceit used to obtain the victim’s cooperation 

or avoid detection [citation].” Here, the jury could infer from the 

act itself, based on where defendant touched E.J., that he acted 

with lewd intent. In addition, the jury could infer that defendant 

sought to avoid detection by touching E.J. while he thought she 

was asleep. Finally, the jury could infer defendant’s lewd intent 

from his similar conduct with J.J.

We also conclude there was substantial evidence 

supporting defendant’s conviction on count 3 under the theory he 

put E.J. on his lap and she could feel his penis. During the 

forensic interview, E.J. stated that defendant would grab her and 

sit her on his lap, and she could feel his penis (“boy private part”). 

E.J. also stated that she would get up and defendant would just 

place her on his lap again. She described the experience as 

follows: “It felt weird. It felt like there was like a ball or 

something. Like about sitting on a ball.” The jury could 

reasonably conclude from this evidence that defendant placed 

E.J. on his lap and held her there, and that she could feel his 

penis. Combined with the evidence that defendant had felt 

around under E.J.’s underwear on a different occasion, and that 

he had touched J.J. in her vagina as well, the jury could 

reasonably find beyond a reasonable doubt that defendant lewdly 
23

touched E.J. when he held her on his lap and she could feel his 

penis.

In conclusion, there was substantial evidence supporting

defendant’s conviction on count 3.

II. The Superior Court Did Not Err in Admitting Expert 

Testimony Regarding CSAAS

A. Law Governing Admission of CSAAS Evidence

In People v. Bledsoe (1984) 36 Cal.3d 236, 251, the 

California Supreme Court held that expert testimony regarding 

“rape trauma syndrome,” which explains some common stress 

reactions of rape victims such as delaying in reporting the rape, 

is inadmissible to prove that a complaining witness has, in fact, 

been raped. The court noted, however, that “[i]n a number of the 

cases in which the issue has arisen, the alleged rapist has 

suggested to the jury that some conduct of the victim after the 

incident—for example, a delay in reporting the sexual assault—is 

inconsistent with her claim of having been raped, and evidence 

on rape trauma syndrome has been introduced to rebut such an 

inference by providing the jury with recent findings of 

professional research on the subject of a victim’s reaction to 

sexual assault. [Citations.]” (Id. at p. 247.) The court implicitly 

endorsed this use of expert testimony regarding rape trauma 

syndrome, stating “[a]s a number of decisions have recognized, in 

such a context expert testimony on rape trauma syndrome may 

play a particularly useful role by disabusing the jury of some 

widely held misconceptions about rape and rape victims, so that 

it may evaluate the evidence free of the constraints of popular 

myths.” (Id. at pp. 247-248.)

In People v. McAlpin (1991) 53 Cal.3d 1289, 1300

(McAlpin), the Supreme Court noted that several Courts of 
24

Appeal had applied Bledsoe to expert testimony on CSAAS, which 

concerns “common stress reactions of children who have been 

sexually molested . . . which also may include the child’s failure 

to report, or delay in reporting, the abuse.”12 The court 

summarized the holdings as establishing the rule that “expert 

testimony on the common reactions of child molestation victims is 

not admissible to prove that the complaining witness has in fact 

been sexually abused; it is admissible to rehabilitate such 

witness’s credibility when the defendant suggests that the child’s 

conduct after the incident—e.g., a delay in reporting—is 

inconsistent with his or her testimony claiming molestation.” 

(McAlpin, supra, at p. 1300, citing People v. Bowker (1988) 203 

Cal.App.3d 385, 390-394 (Bowker), People v. Gray (1986) 187 

Cal.App.3d 213, 217-220 (Gray), and People v. Roscoe (1985) 168 

Cal.App.3d 1093, 1097-1100.)

The court in Bowker identified the critical issue in 

admitting CSAAS evidence as follows: “It is one thing to say that 

child abuse victims often exhibit a certain characteristic or that a 

particular behavior is not inconsistent with a child having been 

molested. It is quite another to conclude that where a child 

meets certain criteria, we can predict with a reasonable degree of 

certainty that he or she has been abused. The former may be 

appropriate in some circumstances; the latter . . . clearly is not.” 

(Bowker, supra, 203 Cal.App.3d at p. 393.)

12 In McAlpin, the court, analogizing to rape trauma 

syndrome and CSAAS, held that expert witness testimony 

explaining why a parent might fail to report that their child has 

been sexually abused was admissible. (McAlpin, supra, 53 Cal.3d 

at p. 1301.)
25

This rule allowing CSAAS evidence to counter a jury’s 

misconceptions about how a minor might react to being sexually 

abused has been consistently applied by the Courts of Appeal. 

Recently, in People v. Lapenias (2021) 67 Cal.App.5th 162, 171, 

the court held that “[t]rial courts may admit CSAAS evidence to 

disabuse jurors of five commonly held ‘myths’ or misconceptions 

about child sexual abuse. [Citation.] While CSAAS evidence is 

not relevant to prove the alleged sexual abuse occurred, it is well 

established in California law CSAAS evidence is relevant for the 

limited purpose of evaluating the credibility of an alleged child 

victim of sexual abuse. [Citations.]” In People v. Munch (2020) 

52 Cal.App.5th 464, 466 (Munch), the court rejected a broad

challenge to the use of CSAAS evidence and concluded that 

“CSAAS evidence is a valid and necessary component of the 

prosecution case in matters involving child abuse.”

In Bowker, the court held that “the evidence [regarding 

CSAAS] must be targeted to a specific ‘myth’ or ‘misconception’

suggested by the evidence.” (Bowker, supra, 203 Cal.App.3d at 

pp. 393-394.) “Identifying a ‘myth’ or ‘misconception’ has not 

been interpreted as requiring the prosecution to expressly state 

on the record the evidence which is inconsistent with the finding 

of molestation. It is sufficient if the victim’s credibility is placed 

in issue due to the paradoxical behavior, including a delay in 

reporting a molestation. [Citations.]” (People v. Patino (1994) 26 

Cal.App.4th 1737, 1744-1745.

In Patino, the court concluded that the prosecution was 

properly allowed to introduce CSAAS testimony where it “was 

offered for the limited purpose of explaining why [the 

complaining witness] did not immediately inform anyone of her 

molestation and why she slowly revealed the details of the 
26

molestation.” (People v. Patino, supra, 26 Cal.App.4th at 

p. 1745.) The court also noted that “the [defendant] did place at 

issue [the complaining witness’s] credibility” when defense 

counsel asked the complaining witness on cross-examination how 

long it took for her to notify authorities about the abuse and why 

she returned to the defendant’s house after being molested. 

(Ibid.)

In Gray, the court held that expert testimony by a child 

psychologist regarding CSAAS was properly admitted “after [the 

complaining witness] testified she did not tell anyone about 

touching [the defendant’s] penis except in response to [the 

detective’s] questioning, she did not tell anyone until she testified 

in court that [the defendant] said, at the time, ‘it won't bite you’, 

and she told her mother she might have been incorrect about 

some incidents but agreed with her father because she feared his 

anger.” (Gray, supra, 187 Cal.App.3d at p. 218.) The court noted 

that “[t]hrough cross-examination of [the complaining witness]

and other witnesses, [the defendant] suggested that the delay in 

reporting the alleged molestation and failure to disclose all 

incidents when she finally told her stepmother was inconsistent 

with her claim of molestation.” (Ibid.) The psychologist testified 

“that delayed reporting and inconsistency is not unusual with 

victims of child molestation . . . and explained what causes 

children to react differently to molestation than adults might 

expect.” (Ibid.; see People v. Harlan (1990) 222 Cal.App.3d 439, 

449 [CSAAS evidence admissible based on cross-examination in 

which defense counsel “attacked the victim’s credibility by 

attempting to show that he had made inconsistent statements 

and had delayed in reporting the molestation”].)
27

In Bowker, the court also held that “the jury must be 

instructed simply and directly that the expert’s testimony is not 

intended and should not be used to determine whether the 

victim’s molestation claim is true.” (Bowker, supra, 203 

Cal.App.3d at p. 394.) A standard instruction has been developed 

for this purpose. (See CALCRIM No. 1193; see also Munch, 

supra, 52 Cal.App.5th at p. 474 [rejecting challenge to CALCRIM 

No. 1193]; People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 

[same].)

B. Defendant’s General Challenge to Expert 

Testimony Regarding CSAAS

Defendant acknowledges that, under McAlpin, supra, 53 

Cal.3d 1289, some evidence regarding CSAAS has been 

admissible in child sexual abuse prosecutions, but suggests we 

should scrutinize the underpinnings of CSAAS testimony because 

it has been criticized in the scientific community and courts in 

other states, most notably the Supreme Court of New Jersey in 

State v. J.L.G. (N.J. 2018) 190 A.3d 442 (J.L.G.). After reviewing 

scientific literature, the court in J.L.G. held that only the factor 

of delayed disclosure had the kind of “consistent and longstanding support in the scientific literature and among experts” 

that permitted admission into evidence: “[n]one of the other 

features that comprise CSAAS have achieved sufficient 

acceptance in the scientific community to be considered reliable 

evidence . . . .” (Id. at p. 464.) “Nor is it sufficient for the State to 

claim that expert evidence is being admitted only to educate 

jurors and dispel misconceptions, and not as a diagnostic or 

predictive tool. The underlying claims of the syndrome must 

themselves be reliable to be admitted . . . .” (Ibid.)
28

Division Six of this court recently rejected a similar 

argument in Munch, supra, 52 Cal.App.5th 464. Addressing the 

defendant’s argument that some other jurisdictions no longer 

admit CSAAS evidence, the court reviewed the law of several 

other jurisdictions identified by the defendant—Pennsylvania, 

Washington, Ohio, Tennessee, and the Ninth Circuit—and 

concluded those jurisdictions in fact do admit CSAAS evidence. 

(Id. at pp. 469-470.) The court also thoroughly reviewed the New 

Jersey case defendant relies upon here, J.L.G., supra, 190 A.3d 

442, and concluded the decision “involves an aberrant view of 

CSAAS derived from a contested hearing where four experts 

testified.” (Munch, supra, at p. 470.) The court noted that the 

New Jersey court applied a “restrictive” test for reviewing the 

reliability of scientific evidence, and also analyzed the J.L.G.

court’s conclusions regarding CSAAS with its own summary of 

scientific research and opinions. (Munch, supra, at pp. 470-471.) 

Concluding this portion of its opinion, the court noted that while 

the Kentucky Supreme Court had ruled that CSAAS is not 

admissible, there was disagreement among that court’s justices 

on the issue. (Id. at pp. 471-472, citing Sanderson v. 

Commonwealth (Ky. 2009) 291 S.W.3d 610.)

The Munch court also held that the Kelly/Frye rule13

governing reliability of new scientific evidence “ ‘does not apply’ ” 

to expert testimony regarding CSAAS. (Munch, supra, 52 

Cal.App.5th at p. 473.) This is because testimony regarding 

CSAAS “is ‘based on [the expert’s] clinical experience with child 

sexual abuse victims and on [his or] her familiarity with 

13 People v. Kelly (1976) 17 Cal.3d 24; Frye v. U.S. (D.C. Cir 

1923) 293 F. 1013.
29

professional literature in the area.’ ” (Ibid., quoting People v.

Harlan, supra, 222 Cal.App.3d at p. 449.) Then, quoting People 

v. Stoll (1989) 49 Cal.3d 1136, 1161, the court concluded that 

expert testimony regarding CSAAS “meets ‘traditional standards 

for competent expert opinion, without need for additional 

screening procedures [under Kelly/Frye].’ ” (Munch, supra, at 

p. 473; accord, Gray, supra, 187 Cal.App.3d at pp. 218-219 

[expert’s testimony regarding CSAAS was not subject to review 

under Kelly/Frye].)

We agree with the Munch court, and see no grounds for 

criticizing the general use of expert testimony regarding CSAAS

to rehabilitate a minor complaining witness’s credibility within 

the parameters established by the California courts.

C. Defendant’s Contention CSAAS Evidence Was 

Not Relevant

Defendant contends that CSAAS was not relevant because 

“there was no appreciable delay in [J.J.’s] disclosure, there was 

no recantation by either complainant as recognized by CSAAS, 

and the credibility challenges were generic: that [J.J.] was 

confused or dissembling as to which Junior did what, or that her 

misattribution was due to fear of physical abuse, that [E.J.’s] 

belated disclosure was prompted by misrecollection or some other 

external pressure, and their accounts were not lies, but attempts 

to point a finger in another direction.”

A trial court’s decision to admit evidence is reviewed for an 

abuse of discretion. (People v. Brooks (2017) 3 Cal.5th 1, 43.)

Under this standard, different aspects of the trial court’s decision 

are subject to different levels of scrutiny. (Haraguchi v. Superior 

Court (2008) 43 Cal.4th 706, 711-712.) Specifically, a “trial 

court’s findings of fact are reviewed for substantial evidence, its 
30

conclusions of law are reviewed de novo, and its application of the 

law to the facts is reversible only if arbitrary and capricious.”14

(Ibid., fns. omitted.)

Here Dr. Jones’s testimony regarding CSAAS was relevant 

to the credibility of both E.J. and J.J. and therefore the trial court 

did not abuse its discretion in admitting the evidence.

As to E.J., CSAAS evidence was relevant because she did 

not resist when defendant touched her even though she was 

aware it was occurring, she waited years before reporting the 

abuse, and she enjoyed going back to the Martinez home and 

engaging with defendant even after the abuse. Dr. Jones’s 

testimony regarding CSAAS was relevant to rebut any 

misconception that this behavior by E.J. was inconsistent with 

14 Defense counsel did not object to the introduction of Dr. 

Jones’s testimony regarding CSAAS. However, in his trial brief 

defense counsel did state his position that CSAAS evidence 

should “be limited to the rehabilitation of the victims’ credibility,” 

and he reiterated this point during the hearing on the parties’ 

motions in limine. Later during that hearing, the court stated 

regarding CSAAS evidence, “I think the evidence is relevant, and 

it is admissible for the People to call this witness and elicit this 

information before the jury. Just for the record, it will be over 

defense objection.”

During the trial, in discussing closing jury instructions 

with the court, defense counsel implicitly acknowledged that 

CSAAS testimony was relevant to E.J.’s credibility, but argued 

that it was not relevant to J.J.’s credibility. This discussion with 

the court regarding jury instructions was the first time defense 

counsel was notified that the instruction would apply to both E.J. 

and J.J. Given these circumstances, we will consider defendant’s 

argument on appeal that the trial court erred in admitting 

CSAAS as relevant to E.J.’s and J.J.’s credibility.
31

her being abused. For example, Dr. Jones testified that a 

common misperception was that a child victim would resist and 

promptly report being abused. She also testified that a child 

might disclose only after they gained the ability to understand 

and express themselves, or after realizing that someone else had 

been victimized.

As to J.J., CSAAS evidence was relevant because she was 

evasive and vague during the forensic interview; she did not 

bring up the incident involving defendant until the interviewer 

asked her a direct question, and then she claimed she could not

describe the body part defendant had touched. She also was 

evasive when asked to draw on a diagram of a girl’s body where 

defendant had touched her. In addition, in cross-examining J.J., 

defense counsel elicited from her that she had earlier said she did 

not remember the abuse, and had spoken with the prosecutor, 

which helped her remember. On re-direct examination, J.J. 

again acknowledged she had earlier said she did not remember 

being touched, and stated she said that because she was nervous.

Finally, J.J. did not immediately disclose the abuse, and did so 

only after she told her mother it hurt when she urinated, and her 

mother asked her questions about it.

Dr. Jones’s testimony regarding CSAAS was relevant to 

rebut any misconception that this behavior by J.J. was 

inconsistent with her being abused. For example, Dr. Jones 

explained that children might refuse to talk about the abuse if 

something negative occurs after disclosure. As an example, she 

said this might occur if a child wants to end an ongoing court 

process. Finally, Dr. Jones’s testimony that it is common for 

children to delay in disclosing, and are more likely to disclose in 

response to specific questions, was relevant to J.J.’s credibility.
32

In conclusion, we find that CSAAS was relevant in this case 

to E.J.’s and J.J.’s credibility.

D. Defendant’s Contention CSAAS Evidence Was 

Not a Proper Subject for Expert Testimony

Defendant contends that Dr. Jones’s testimony that it is 

common for children to delay in reporting abuse is not beyond the 

understanding of the common juror.

Defendant has forfeited this argument by not objecting on 

this ground in the trial court. A party is required to raise 

objections to evidence at the trial court level, or their objection is 

forfeited. (See Evid. Code, § 353 [defendant must make timely 

evidentiary objection on same ground urged on appeal]; People v. 

Romero and Self (2015) 62 Cal.4th 1, 24 [failure to object 

“ ‘deprives the trial court of the opportunity’ to create a record 

and to ‘correct potential error in the first instance’ ”].)

In any case, even if defendant did not forfeit this argument, 

it was not an abuse of discretion for the court to conclude that the 

elements and application of CSAAS was beyond the common 

understanding of jurors. Moreover, even assuming that every 

juror was fully aware of all aspects of CSAAS, we would find that

admission of Dr. Jones’s testimony was not prejudicial. (People v. 

Watson (1956) 46 Cal.2d 818, 836; see People v. Lapenias, supra, 

67 Cal.App.5th at p. 172 [even if CSAAS was not beyond the 

understanding of the jurors the admission of expert testimony on 

the subject was cumulative and therefore not prejudicial].)

E. Defendant’s Contention the Prosecution Asked 

Improper Hypothetical Questions

Defendant argues that it was error to admit Dr. Jones’s 

responses to hypothetical questions that “closely track[ed] the 

facts of the case.”
33

Defendant has forfeited this argument because defense 

counsel did not object at trial. (Evid. Code, § 353; People v. 

Romero and Self, supra, 62 Cal.4th at p. 24.) Defendant contends 

that it would have been futile to object, but nothing in the record 

supports this contention.

In any event, even if defendant did not forfeit this 

argument, the hypothetical questions posed to Dr. Jones by the 

prosecution were not improper. “Hypothetical questions must not 

be prohibited solely because they track the evidence too closely, 

or because the questioner did not disguise the fact the questions 

were based on the evidence.” (People v. Vang (2011) 52 Cal.4th 

1038, 1051.) Defendant relies on People v. Jeff (1988) 204 

Cal.App.3d 309, but that case is distinguishable because the 

testimony of the expert clinical psychologist was used to present 

evidence to the jury that the complaining witness showed 

symptoms of being abused, and thus that she had in fact been 

abused. As the court summarized, the expert “in response to . . . 

questions, explained to the jury [the complaining witness’s] 

emotions, fears, and reactions to others are symptoms exhibited 

by a child molest victim.” (Id. at p. 338.) This included testimony 

that “most child victims have nightmares in which they dream 

they are hurt or killed,” which followed testimony from another 

expert, who had counseled the complaining witness, that the 

complaining witness had described nightmares of being 

kidnapped. (Id. at pp. 335-336.)

In People v. Harlan, supra, 222 Cal.App.3d at page 450, the 

court rejected the defendant’s argument that the court erred in 

admitting testimony by the prosecution’s CSAAS expert which 

incorporated circumstances mirroring the complaining witness’s 

life, stating “[t]he testimony [the defendant] has challenged, 
34

apart from that his own counsel elicited on cross-examination, 

related directly to the popular misconception about delayed 

disclosure. We find no error in the admission of such testimony.” 

The same is true in this case. The hypothetical questions posed 

by the prosecutor concerned the circumstances of disclosure of 

abuse and children claiming not to remember abuse even after

having previously disclosed, which relate to common 

misconceptions of the behavior of children who have been abused.

Finally, even assuming it was error to allow Dr. Jones’s 

response to the prosecutor’s hypothetical questions, we would 

find that the error was not prejudicial. (People v. Watson, supra, 

46 Cal.2d at p. 836; see People v. Wilson (2019) 33 Cal.App.5th 

559, 571 [erroneous admission of expert testimony that “had the 

effect of telling the jury there was at least a 94 percent chance 

that any given child who claimed to have been sexually abused 

was telling the truth” was subject to analysis under state law, 

and error was harmless]; Bowker, supra, 203 Cal.App.3d at p. 395 

[improper admission of expert’s CSAAS testimony that went 

beyond rehabilitating the complaining witness’s credibility was 

harmless].)

F. Defendant’s Contention the Court Improperly 

Allowed Testimony that Having a Stuffed 

Animal or Comfort Dog Could Put a Child 

Witness at Ease

Defendant contends that it was improper for the CSAAS 

expert witness to testify that stuffed animals and comfort 

animals can help a child discuss the abuse they suffered, when 

combined with the fact that J.J. took a stuffed animal to the 

stand and E.J. was accompanied to the stand by a dog.
35

Defendant has forfeited this argument because defense 

counsel did not object at trial. (Evid. Code, § 353; People v. 

Romero and Self, supra, 62 Cal.4th at p. 24.)

Even if defendant did not forfeit this argument, there was 

no error. Dr. Jones opined that using a stuffed animal or comfort 

dog could make it easier for a child to talk about abuse. This 

opinion was relevant to rehabilitate J.J.’s credibility after she 

admitted saying previously that she did not remember the abuse 

and that she was able to remember after speaking with the 

prosecutor. On re-direct, J.J. brought a stuffed animal with her 

and testified that she said she did not remember because she was 

nervous, and having the stuffed animal with her made her feel 

more comfortable testifying.

Finally, even assuming it was error to allow Dr. Jones’s 

testimony regarding the use of stuffed animals or comfort dogs, 

we would find that the error was not prejudicial. (People v. 

Watson, supra, 46 Cal.2d at p. 836.)

III. The Superior Court Did Not Apply an Incorrect 

Standard in Deciding Appellant’s Motion for a New 

Trial

Defendant contends that the trial court abused its 

discretion in ruling on his motion for a new trial under section 

1181 because it failed to apply the correct standard of 

independent review.

A. Legal Principles and Standard of Review

Section 1181, subdivision (6) provides that “the court may, 

upon [a defendant’s] application, grant a new trial” “[w]hen the 

verdict or finding is contrary to law or evidence.”

“In reviewing a motion for a new trial, the trial court must 

weigh the evidence independently. [Citation.] It is, however, 
36

guided by a presumption in favor of the correctness of the verdict 

and proceedings supporting it. [Citation.] The trial court ‘should 

[not] disregard the verdict . . . but instead . . . should consider the 

proper weight to be accorded to the evidence and then decide 

whether or not, in its opinion, there is sufficient credible evidence 

to support the verdict.’ [Citation.] [¶] A trial court has broad 

discretion in ruling on a motion for a new trial, and there is a 

strong presumption that it properly exercised that discretion. 

‘ “The determination of a motion for a new trial rests so 

completely within the court’s discretion that its action will not be 

disturbed unless a manifest and unmistakable abuse of discretion 

clearly appears.” ’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 

463, 523-524; accord, People v. Fuiava (2012) 53 Cal.4th 622, 729-

730 [quoting Davis].)

B. Analysis

In announcing its ruling on defendant’s motion for a new 

trial, the court articulated the applicable standard, stating, “I 

acknowledge that this court does have the authority as being a 

13th juror to re-review sufficiency of the evidence to make an 

independent finding as to whether or not these charges have been 

proven beyond a reasonable doubt in terms of consideration of a 

motion for a new trial.” Defendant nonetheless contends that the 

court did not apply this standard, and gave “undue deference” to 

the jury’s verdict, as evidenced by several comments made by the 

court, such as “I can’t give—see a means for the court to interfere 

with that jury’s responsibility in rendering the verdict because 

they did, in fact, hear the inconsistencies and the conflicts that 

the defense has raised in their motions, and they were given a 

fair opportunity to evaluate it.”
37

We conclude that the trial court did not abuse its discretion 

in denying defendant’s motion for new trial. The trial court 

articulated the correct standard, noting that it was required to 

review the evidence independently. The trial court’s statements 

that it did not see how it could “interfere” with the jury’s verdict 

do not show that it applied an incorrect standard. The court’s 

statements simply suggest it was not convinced by the points 

raised in defendant’s motion, and concluded there was sufficient 

evidence supporting the verdict. Moreover, under the applicable 

standard the court was properly “guided by a presumption in 

favor of the correctness of the verdict.” (People v. Davis, supra, 

10 Cal.4th at p. 524.) Defendant relies on People v. Watts (2018) 

22 Cal.App.5th 102, but in that case “the court repeatedly 

informed [the defendant] it could not reweigh the evidence and 

that its only concern was whether the prosecution had presented 

sufficient evidence to present the matter to the jury.” (Id. at 

p. 113.)

In conclusion, we do not find any “ ‘ “manifest and 

unmistakable abuse of discretion” ’ ” by the trial court in denying 

defendant’s motion for a new trial. (People v. Davis, supra, 10 

Cal.4th at p. 524.)
38

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

BENKE, J.*

We concur:

CHANEY, J.

BENDIX, Acting P. J.

* Retired Associate Justice of the Court of Appeal, Fourth 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.