Filed 2/6/23 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

YOVANI DEJESUS MARTINEZ,

Defendant and Appellant.

F082991

(Super. Ct. No. VCF347222)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Melinda 

Reed, Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Jeffrey 

D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

A jury convicted appellant Yovani DeJesus Martinez of 10 felonies involving sexrelated crimes committed with his daughter, who was eight years old when she first 

reported the abuse. Appellant was convicted of two counts of sexual penetration of a 

child under the age of 10 years (Pen. Code, § 288.7, subd. (b);

1 counts 1 & 2); six counts 

of committing a lewd act upon a child (§ 288, subd. (a); counts 3-8); one count of 

possession of child pornography (§ 311.11, subd. (a); count 9); and one count of using a 

minor to create pornography (§ 311.4, subd. (c); count 10). He received an aggregate 

indeterminate prison term of 30 years to life, along with a consecutive determinate 

sentence of 20 years. 

In general, appellant alleges that certain evidentiary and sentencing errors 

occurred at trial, and his counsel rendered ineffective assistance. We reject most of his 

claims. However, we agree with the parties that the subordinate determinate sentence 

imposed in count 10 must be reduced from two years to eight months. We further agree 

that certain fees and fines must be vacated. We will direct the trial court to prepare an 

amended determinate abstract of judgment that reflects these modifications. As 

modified, we affirm the judgment.

BACKGROUND

At trial, appellant’s daughter, the Victim, testified that appellant had touched her 

vagina with his penis and/or hand on multiple occasions when she stayed with him at his 

residence. In contrast, appellant denied ever touching her inappropriately, and he offered 

legitimate reasons why he had possibly touched her vagina, such as applying medication. 

Based on the verdicts rendered, it is apparent that the jury rejected appellant’s version of 

events and found the Victim credible. We summarize the material facts that support the 

judgment.

1 All future statutory references are to the Penal Code unless otherwise noted.
3.

I. Appellant and his Ex-Wife Separate.

Appellant and his ex-wife, M.L., are the Victim’s parents. The Victim was born in 

December 2008. In 2014, M.L. filed for divorce from appellant. She was the one who 

ended the relationship. Thereafter, they had joint custody of the Victim, and they took

turns with physical custody. 

M.L. began a relationship with a new man, the Boyfriend, and she eventually had 

two children with the Boyfriend. After this new relationship started, appellant would 

frequently insult M.L. or her Boyfriend. However, appellant also made it clear that he 

wanted to resume a romantic relationship with M.L. 

II. Appellant Accuses his Ex-Wife’s Boyfriend of Molesting the Victim.

In August 2016, M.L. obtained a three-year restraining order against appellant 

after he began stalking and harassing her. Under the terms of the order, appellant could 

not have contact with M.L. unless it pertained to the Victim. To comply with both the 

restraining order and their child custody agreement, appellant and M.L. utilized the 

residence of M.L.’s mother as the location for an exchange of physical custody. 

In 2016, about a week after appellant was served with notice of the pending 

restraining order, appellant accused the Boyfriend of molesting the Victim. M.L. 

suspected that appellant had fabricated these allegations to disrupt her relationship with 

the Boyfriend. Appellant attempted to obtain a restraining order against the Boyfriend, 

but a judge denied that request. 

In early 2017, appellant renewed his accusations with law enforcement, claiming 

he had evidence that either the Boyfriend or the Boyfriend’s 18-year-old nephew were 

molesting the Victim. Law enforcement launched an investigation, testing (in part) a pair 

of the Victim’s panties, and interviewing everyone allegedly involved. M.L. was 

cooperative. The Boyfriend and his nephew were cooperative. The Victim underwent a 
4.

“CART” interview.2 This investigation was ultimately closed due to a lack of evidence. 

No probable cause existed to arrest either the Boyfriend or his nephew.

III. The Victim Discloses Appellant’s Abuse.

On February 3, 2017, the Victim was eight years old and she disclosed to M.L. 

that it was appellant who had been touching her inappropriately. This disclosure 

occurred just prior to a physical custody exchange. While waiting for appellant to arrive 

at the location, the Victim began crying and she told M.L. that she did not want to go 

with appellant. According to M.L., it appeared that the Victim was having a panic attack. 

The Victim said it was appellant who had done everything to her that she had previously 

alleged against the Boyfriend. M.L. asked the Victim if she was lying. The Victim 

insisted she was telling the truth, and she asked M.L. to call the police so she would not 

have to go with her father. 

M.L. contacted authorities, and a law enforcement officer responded to the scene a 

short time later. The Victim’s eyes were red as if she had been crying. The Victim 

reported to the officer that appellant had touched her “private parts” when they were in 

bed. This disclosure to the officer happened outside M.L.’s presence. 

In February 2017, the Victim underwent a second CART interview. She reported 

that, the previous week, she had told her mother that it was appellant who did “bad 

things” to her. The Victim stated that appellant “gets on top of” her. She felt his 

“tummy” on top of her “tummy.” This had occurred four or five times when the Victim 

was asleep with appellant in the same bed. When asked by the interviewer how the 

Victim knew it was not a dream, the Victim stated that, when she woke up, she would not 

be wearing any underwear and her stomach would hurt. 

2 A CART interview involves a specially trained interviewer who elicits information 

from a minor about alleged sexual crimes. 
5.

The Victim told the interviewer that she did not want to go with appellant because 

she did not want him “to do that” anymore. The Victim admitted during the second 

CART interview that she had previously falsely accused the Boyfriend of molesting her. 

She said she made those allegations because appellant had instructed her to do so. 

According to the Victim, appellant had wanted the Boyfriend to go to jail so he could 

renew a romantic relationship with the Victim’s mother, M.L. During the second CART 

interview, the Victim said that the Boyfriend had never done “bad things” to her. 

IV. Law Enforcement Discovers Incriminating Evidence on Appellant’s Phone.

In February 2017, appellant met with law enforcement officials. He voluntarily 

turned over both his and the Victim’s cellular telephones. Law enforcement eventually 

extracted relevant information from both phones. 

On February 4, 2017, appellant had sent a text message to the Victim which read, 

“Daddy’s princess made lies, and that’s why daddy is very sad to the princess to tell lies 

when daddy told her not to say.” This text message had been sent the day after the 

Victim had first disclosed to her mother and law enforcement that appellant was touching 

her inappropriately. On the day that the Victim first disclosed this abuse, a police officer 

had spoken with appellant on the telephone and explained why the child custody 

exchange was not going to occur. 

On appellant’s phone, law enforcement discovered nude photographs of the 

Victim. A picture taken on or about April 23, 2016, showed her buttocks. Several 

pictures taken on or about September 30, 2016, showed the Victim fully nude. In another 

photo, the Victim is naked and lying on the bed with her eyes and legs closed, but her 

vagina is visible. In another photo, the Victim is posed nude in a “seductive manner.” 

One of her legs is laid out to the side, and both of her hands are above her head. 

In three photos taken on or about September 30, 2016, the Victim’s vagina is 

depicted in “close-up” shots. In two of the photos, appellant is seen “opening” her 
6.

vagina. In one photo, appellant uses his finger to manipulate her vagina, and in the other 

photo, he uses his thumb to do so. The third photo is of the Victim’s vagina with her legs 

spread. 

The pictures of the Victim’s vagina were kept in a clandestine app on appellant’s 

cell phone that looked like a calculator. That app also contained photos of naked adult 

women and photos of appellant’s own erect penis. One photo of his penis showed 

appellant with lubricant on his fingers. 

A review of his phone demonstrated that appellant had visited various 

pornographic websites, and he had viewed certain pornographic videos. These included 

two videos that were titled: (1) “Father Abused a Sleeping Girl” and (2) “Teen Girl 

Forced By Father Sucking His Cock, Cam77.com.” These were deleted from the phone’s 

history. Law enforcement did not access these videos, and they did not know whether 

they involved child or adult actors. Appellant also had web searches for strippers and for 

escort services. 

Appellant’s phone also contained videos of the Victim. In one video, he is seen 

touching and grabbing the Victim’s buttocks, while pulling down her underwear a little. 

He refers to her “sexy body.” He says, “I don’t know what I am going to do with this old 

lady ... that has me very crazy.” In another video, appellant and the Victim are lying on 

a bed. Appellant is making snoring sounds and moaning. In Spanish, he says, “Mmm, 

there baby, ooh yes my love, mmm, mmm.” The Victim is topless. In a final video, the 

Victim refers to appellant’s “butt cheeks” and her own “butt.” She also references “your 

junior” when speaking with appellant.3

The jury learned that the Victim referred to appellant’s penis as “Junior.” M.L. 

testified that, when she was in a relationship with appellant, she and appellant referred to 

3 The jury also saw a very short clip of appellant kissing the Victim on her mouth. 

The Victim testified that appellant only kissed her when saying goodbye or dropping her 

off at school. 
7.

his penis as “Junior.” Appellant acknowledged that M.L. used the term “Junior” to refer 

to his penis. 

V. The Victim’s Trial Testimony.

The Victim was 12 years old at the time of trial. She testified that, until she was 

eight years old, she would stay with appellant on the weekends. She shared a bedroom 

with appellant, and that room had two beds. She explained that, when she would go to 

sleep in her own bed, appellant would talk about ghosts or some other scary subject. She 

would then crawl into bed with him because she was frightened. The Victim told the jury 

that on multiple occasions, and occurring at least 10 times, if not more, she would be in 

his bed and he would climb on top of her naked and place his penis or hand against her 

vagina. She always fell asleep in either sweatpants and a tank top, or a nightgown. She 

always wore underwear. When she woke, she would find her clothes to be inside out 

and/or on backwards. 

The Victim told the jury that appellant wanted to bathe with her when she stayed 

with him. On more than one occasion, but less than five occasions, appellant instructed 

her to jump on top of him when they were together in the bathtub, and he had her place 

her vagina against his penis. He would grab her hips when she did this. He told her that 

this was a game. The Victim would feel a sharp pain or burning sensation in her vagina. 

The first of these incidents in the bathtub occurred when the Victim was six or seven 

years old. The last incident occurred just before she stopped having contact with him. 

The Victim admitted to the jury that she had previously falsely accused the 

Boyfriend of molesting her, and she confirmed that the Boyfriend had never touched her 

inappropriately.4 She explained that she had falsely accused the Boyfriend because she 

had felt scared and pressured to do so from appellant. The Victim knew that appellant 

4 The Victim also testified that the Boyfriend’s nephew never touched her 

inappropriately. 
8.

did not like the Boyfriend, and appellant had told her that he had found something on her 

underwear. He had repeatedly asked her if the Boyfriend had been abusing her. 

Appellant had warned her that he could have her mother, M.L., jailed if she (the Victim) 

did not explain what had happened. Appellant then covered her face and he tried to take 

off her pants. It was at that moment that she relented and told appellant that it was the 

Boyfriend who was abusing her. 

The Victim denied recalling ever having a rash on her vagina or remembering 

appellant ever putting medication on her vagina. She told the jury that, because she had 

been scared, she never told anyone it was appellant who was sexually abusing her. She 

eventually told her mother, M.L. while they were in their vehicle outside the residence of 

the Victim’s grandmother’s residence shortly before appellant was scheduled to pick her 

up. She testified that she disclosed what was happening because she was scared it would 

occur again. She stated that she still loved her father, but she “deserved” her own 

“justice” and she believed he deserved “to go to jail.” 

VI. The Defense Evidence.

A. Appellant’s testimony.

Appellant testified at trial, denying any wrongdoing. He said he had never 

touched the Victim’s vagina for a sexual purpose, and when he touched her, such as her 

buttocks as seen in one video, it was “just a game.” He claimed that he had touched the 

Victim around her vagina only to apply a cream-based medication. He said he did this 

over 10 times, including when the Victim was asleep. 

Appellant denied telling the Victim to accuse the Boyfriend, and he denied 

pressuring her in this regard. He denied ever threatening to have M.L. jailed. He told the 

jury that he did not know why the Victim would say that he had told her to accuse the 

Boyfriend. 
9.

Appellant admitted taking pictures of the Victim’s vagina, including those with his 

finger or thumb in the pictures. He claimed that he did so because Child Protective 

Services had advised him that it would help him gain physical custody of her. He 

claimed he took the pictures because the Victim “had a rash” and he was “applying 

cream.”5 He stated that he photographed his finger near the Victim’s vagina to point out 

a rash. He also claimed that he took pictures of the Victim’s vagina with her legs spread 

open because he saw a discharge of “transparent liquid.” He claimed that he showed two 

such photos to his mother. He believed the discharge was the result of sexual abuse by 

the Boyfriend. He testified that, after showing the pictures of the Victim’s vagina, he 

deleted them from his phone without showing them to police. 

Regarding other naked photos of the Victim, appellant claimed he took those to 

make her feel more comfortable before he applied the medication to her vagina, and/or 

because she wanted him to photograph her naked. He testified that it was the Victim’s 

decision to pose naked on the bed in a seductive manner. He explained that she “really 

just likes to take pictures.” He claimed that he took the April 23, 2016, picture of the 

Victim’s buttocks because she had complained that M.L. or the Boyfriend had hit her. 

Appellant admitted that he kept photos of the Victim’s vagina in a clandestine app 

on his phone, which looked like an app for a calculator. Inside this app he also kept 

photos of naked adult women and of his penis. He claimed that, for privacy purposes, he 

put the photos of the Victim’s vagina in that app so that the Victim or anyone else who 

5 At trial, M.L. explained that, when the Victim was about five or six years old, she 

did have a rash on or around her vagina, and M.L. had applied a cream a few times. 

However, M.L. testified that, after that time, the Victim never again had issues with her 

vagina. In contrast, Appellant claimed at trial that it was around September 2016 when 

the Victim was prescribed a cream. He admitted that his testimony in this regard was in 

conflict with both M.L. and the Victim. 
10.

used his phone would not have access to them.6 He explained that, regarding the pictures 

of his own penis, he had had surgery to reconstruct his “urinary vein” and he had taken 

the photos to show his physician because urine was leaking from his penis. He claimed 

his penis was not “erect” but it had a “device” there. 

Appellant admitted that he watches adult pornography, and he did so at times with 

a prostitute in a motel. He denied seeking out a video titled “Father Abused a Sleeping 

Girl.” He said that the link to that video just happened to be on a website he was visiting. 

He explained that he was indiscriminate when it came to viewing pornography, and he 

watched whatever was on the screen. He denied having any sexual fantasies of abusing 

his daughter while she was sleeping. He admitted watching a video in January 2017 

titled “Fucking My Girlfriend’s Sister While She Sleeps.” He denied that this type of 

pornography aroused him. 

Appellant admitted taking showers with the Victim until she was about seven and 

a half years old. He agreed that he stopped washing her vagina about two months before 

she turned eight. He testified that he and M.L. had showered together with the Victim 

when they were still married, and he continued showering with the Victim after their 

divorce. He explained that people from Mexico would not find this behavior unusual.7 

He claimed that the Victim had asked him to shower with her, and he was only with her 

during baths to wash her hair. 

6 Appellant also had at least one picture of his ex-wife, M.L., in that clandestine 

app. 

7 At trial, M.L. agreed she had previously told an officer that she did not find it odd 

that appellant showered with the Victim because they had both showered with her ever 

since she was an infant. M.L. also testified that the Victim does not like to sleep alone 

and she used to sleep with M.L. and appellant in the same bed. 
11.

B. The testimony from appellant’s various family members.

Some of appellant’s family members testified on his behalf. In general, they told 

the jury that they had never witnessed appellant acting inappropriately with the Victim. 

They also had not seen any concerns regarding that relationship. 

Appellant’s mother denied ever seeing a rash on the Victim when she had cared 

for her, but she remembered that M.L. had sent a cream that had to be applied. 

Appellant’s mother, however, had trouble remembering the precise time period when the 

Victim may have had a rash. She agreed that, in February 2017, she had told 

investigators that it had been over a year since she had seen anything regarding the 

Victim’s vagina, and it had been two years since she had put cream on the Victim’s 

vagina. 

Appellant’s mother initially testified that she had seen the nude photographs that 

appellant had taken of the Victim, and the mother understood that they were evidence 

that the Victim had been touched inappropriately. The mother also heard the Victim say 

that the Boyfriend had been molesting her. However, on cross-examination, appellant’s 

mother agreed that appellant did not actually show her the photographs of the Victim’s 

vagina. Instead, he only told her about them. 

DISCUSSION

We address appellant’s claims in the order that they appear in his opening brief.

I. Appellant has Forfeited his Claim that the Trial Court Erred in Permitting 

Admission of the Second CART Interview and any presumed Error is 

Harmless.

Evidence Code section 1360 provides an exception to the hearsay rule in criminal 

proceedings for certain statements made by child abuse victims under the age of 12.8 

8 The United States Supreme Court holds that, “[t]o be admissible under the 

Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia 

of reliability by virtue of its inherent trustworthiness, not by reference to other evidence 

at trial. [Citation.]” (Idaho v. Wright (1990) 497 U.S. 805, 822.)
12.

Among other requirements not relevant here, the trial court must find “in a hearing 

conducted outside the presence of the jury, that the time, content, and circumstances of 

the statement provide sufficient indicia of reliability.” (Evid. Code, § 1360, subd. (a)(2).)

Appellant argues that the trial court erred in admitting into evidence the Victim’s 

statements made during her second CART interview in which she accused him of 

touching her inappropriately. He notes that the court never conducted the required 

hearing to determine the reliability of her statements, and he contends that the Victim’s 

hearsay statements were unreliable. He maintains that his due process rights were 

violated. He asserts that he suffered prejudice, and reversal of all of his convictions is 

required. 

A. Background.

Prior to trial, the prosecution filed written motions in limine, which included a 

request that it be permitted to admit into evidence the recording of the Victim’s CART 

interview in which she disclosed the abuse she was suffering from appellant. The 

prosecution’s motion was based on Evidence Code section 1360. The prosecution asked 

the court to conduct a hearing to determine whether these statements were reliable. 

When the matter was addressed pretrial, defense counsel pointed out to the court 

that the Evidence Code required the court to conduct a hearing to determine the reliability 

and trustworthiness of the Victim’s statements during her CART interview. The court

agreed it would conduct such a hearing. However, no such hearing occurred prior to 

trial.

9

During trial, a recording of the Victim’s second CART interview (People’s exhibit 

No. 1) was played for the jury. Just before this was played, the court noted that the 

9 The parties agree that no such hearing occurred prior to trial. Our independent 

review of the record has also not discovered any such hearing.
13.

defense did not object to its admissibility, and the court stated it had “specifically found 

in the prosecution’s favor” regarding its admissibility. 

Towards the end of trial, the court later stated for the record that it had previously 

indicated that it “would listen carefully to the preliminary and foundational testimony” 

regarding this CART interview “as it was being presented by the witnesses while the jury 

was present.” The court stated it was “satisfied” that the foundational requirements had 

been met under Evidence Code section 1360 and that the CART interview “was 

appropriately played.” 

B. Standard of review.

The parties dispute the appropriate standard of review. Appellant contends that 

this court should conduct an independent review regarding whether or not the Victim’s 

statements were reliable during the CART interview. In contrast, respondent asserts that 

we should assess whether the trial court’s ruling was an abuse of discretion. 

Published opinions have taken conflicting approaches regarding the appropriate 

standard of review in this situation. Some courts consider this an evidentiary issue, 

triggering a mere abuse of discretion standard. (See People v. Roberto V. (2001) 93 

Cal.App.4th 1350, 1367; People v. Brodit (1998) 61 Cal.App.4th 1312, 1330.) On the 

other hand, other courts have employed an independent standard of review to consider 

whether the child victim’s hearsay statements were reliable. (People v. Tatum (2003) 108 

Cal.App.4th 288, 296; People v. Eccleston (2001) 89 Cal.App.4th 436, 445–446.)

As we demonstrate below, we need not resolve the parties’ dispute or fully 

respond to their various arguments regarding the appropriate standard of review. Instead, 

this claim fails under either approach because this issue is forfeited and any presumed 

error is harmless.
14.

C. Analysis.

1. This claim is forfeited.

The parties dispute whether or not this claim is forfeited. Respondent argues that 

appellant did not object to this evidence when it was introduced at trial. In contrast, 

appellant contends he has preserved this issue for appellate review because his trial 

counsel reminded the court before trial that it was required to determine outside the jury’s 

presence whether or not the Victim’s statements during her CART interview were 

reliable. In the alternative, appellant raises a claim of ineffective assistance of counsel. 

Respondent has the better argument. A criminal judgment cannot be set aside by 

the erroneous admission of evidence unless a timely objection was made setting forth a 

“clear” and “specific ground” for the objection. (Evid. Code, § 353, subd. (a).) A 

reviewing court must also determine that the admitted evidence should have been 

excluded on the ground stated and the error “resulted in a miscarriage of justice.” (Id. at 

subd. (b).) Our Supreme Court holds that an objection must “inform the trial court, as 

well as the party offering the evidence, of the specific reason or reasons the objecting 

party believes the evidence should be excluded, so the party offering the evidence can 

respond appropriately and the court can make a fully informed ruling.” (People v. 

Partida (2005) 37 Cal.4th 428, 435; accord, People v. Seijas (2005) 36 Cal.4th 291, 302.) 

Here, the defense did not object when the second CART video was played for the 

jury. Indeed, the court noted that the defense was making no objection, a point which the 

defense never disputed or corrected. Consequently, this issue is deemed forfeited. 

Appellant failed to make a timely and specific objection on the ground now asserted on 

appeal. Thus, this issue was not preserved for appellate review. In any event, we also 

determine that this claim fails due to a lack of prejudice.10

10 Because this claim fails for lack of prejudice, we need not fully analyze 

appellant’s assertion that his trial counsel was ineffective in not preserving this issue for 

appeal. Appellant cannot meet his burden of showing that he was harmed. Thus, his 
15.

2. Any presumed evidentiary error is harmless.

The California Supreme Court has identified the following factors as being 

relevant in determining the reliability of hearsay statements made by a child witness in a 

sexual abuse case: (1) spontaneity and consistent repetition; (2) the declarant’s mental 

state; (3) use of terminology unexpected of a child of a similar age; (4) lack of motive to 

fabricate; and (5) the child’s ability to understand the duty to tell the truth, and to 

distinguish between truth and falsity. (In re Cindy L. (1997) 17 Cal.4th 15, 29–30; see In 

re Lucero L. (2000) 22 Cal.4th 1227, 1250.)

Appellant maintains that the Victim’s statements during her CART interview were 

not sufficiently reliable. He acknowledges that no evidence suggests the Victim’s mental 

state was impaired. However, he contends that the Victim’s allegations were not 

consistently repeated. He also argues that the Victim had a motive to lie to falsely accuse 

him. Finally, he asserts that her statements during the CART interview were not 

sophisticated and did not suggest that her claims of sexual abuse had occurred. He relies 

on People v. Eccleston, supra, 89 Cal.App.4th 436, and People v. Brodit, supra, 61 

Cal.App.4th 1312, to establish error. He contends it is reasonably probable this evidence 

impacted the outcome of his trial. We disagree.

We need not analyze whether or not the Victim’s statements during her CART 

interview were reliable. We also need not summarize appellant’s cited authorities. 

Instead, this record reveals that, even if forfeiture did not occur and the CART interview 

was erroneously played at trial, any presumed evidentiary error was overwhelmingly 

harmless.

The prosecution introduced evidence that conclusively established appellant’s 

guilt. The Victim testified that appellant had touched her vagina with his penis and/or 

hand on multiple occasions when she stayed with him at his residence. Her trial 

claim of ineffective assistance of counsel must be rejected. (See Strickland v. 

Washington (1984) 466 U.S. 668, 687–688; People v. Lucas (1995) 12 Cal.4th 415, 436.)
16.

testimony was credible and consistent with her pretrial statements. On the night the 

Victim disclosed this abuse to her mother, she told an officer that appellant had touched 

her “private parts” when they were in bed. 

The Victim’s testimony was amply corroborated by the evidence located on 

appellant’s phone. He had numerous naked photos of the Victim, and one showed her in 

a “seductive manner.” He kept photos of her vagina hidden in a clandestine app that 

looked like a calculator, and those photos were kept with pictures of naked adult women 

and images of his own erect penis. In two of the pictures involving the Victim, appellant 

used his finger in one picture and his thumb in another picture to open her vagina. 

Despite claiming he had taken photos of her vagina as possible evidence to gain custody 

of the Victim, appellant admitted that he never showed these pictures to law enforcement. 

Appellant had a video wherein he touched and grabbed the Victim’s buttocks, 

while pulling down her underwear a little. He referred to her “sexy body.” He says, “I 

don’t know what I am going to do with this old lady ... that has me very crazy.” In 

addition, the jury learned that, the day after the Victim first disclosed the abuse to her 

mother and then to law enforcement, appellant sent a text message to the Victim saying

he was “very sad” because his “princess” told lies and he had “told her not to say.” 

The evidence located on appellant’s phone overwhelmingly corroborated the 

Victim’s trial testimony and confirmed the ongoing abuse. In contrast, the Victim 

disclosed very few details about the abuse during the second CART interview, only 

reporting that appellant did “bad things” to her and he put his “tummy” on hers. She also 

explained in this interview that she had previously accused the Boyfriend of molesting 

her because appellant had instructed her to do so. Appellant had wanted the Boyfriend to 

go to jail so he could renew a romantic relationship with M.L. 

At trial, the Victim provided more details about why she had previously falsely 

accused the Boyfriend. She explained that she had felt scared and pressured to do so. 

The Victim knew that appellant did not like the Boyfriend, and appellant had told her that 
17.

he had found something on her underwear. He had repeatedly asked her if the Boyfriend 

had been abusing her. Appellant had warned her that he could have her mother jailed if 

she did not explain what had happened. Appellant then covered her face and he tried to 

take off her pants. It was at that moment that she relented and told appellant that it was 

the Boyfriend who was abusing her. 

With CALCRIM No. 226, the jurors were instructed to consider the Victim’s prior 

false statement and to give it whatever weight they deemed necessary. Based on the 

verdicts rendered, it is apparent that the jury found the Victim’s testimony credible.

During closing argument, the prosecutor did not rely on the CART interview to 

demonstrate appellant’s guilt. Instead, it was only mentioned a few times to establish 

when this abuse had ended, and to remind the jurors that the Victim had said during the 

interview that she had felt appellant’s “tummy on her tummy,” and “she could feel his 

feet.” The jurors were told that they could consider the CART interview and give it the 

same weight and value as the Victim’s trial testimony. The prosecution, however, argued 

that appellant’s guilt was shown through the Victim’s trial testimony, her demeanor, the 

photos and videos found on appellant’s cell phone, and through appellant’s numerous 

lies. The prosecutor asked the jury to consider the circumstances surrounding the 

Victim’s initial disclosure to her mother. The prosecutor asserted that the Victim had no 

motive to lie, and the photos and videos found on appellant’s phone showed that she was 

telling the truth. The prosecutor reminded the jurors that, the day after the Victim 

disclosed this abuse, appellant had sent her a text message saying he was sad because he 

had told her “not to say.” 

Appellant’s defense counsel argued to the jury that, during this CART interview, 

the Victim had not talked about penetration or that appellant supposedly put his finger on 

her vagina. She also did not mention showering with appellant, which was only 

discussed in court. Defense counsel noted that appellant is a “pretty big man” and the 

Victim “was very small at eight years old.” Counsel noted that the Victim never stated in 
18.

her CART interview that she had felt suffocated or had difficulty breathing when 

appellant was on her. 

During the prosecution’s short rebuttal argument, the CART interview was never 

again mentioned or discussed. 

We reject appellant’s arguments that his right to due process was violated from the 

introduction of the CART interview. Instead, appellant had a full and fair opportunity to 

confront and cross-examine the Victim at trial. He was also not prevented from 

presenting his defense to the jurors, claiming he had never touched her or photographed 

her for a sexual purpose. It is apparent, however, that the jury found appellant’s 

testimony lacking in any credibility.

Based on this record, any presumed error was harmless regarding the playing of 

the CART interview at trial. We can declare beyond any reasonable doubt that this 

evidence did not contribute to the jury’s verdict. (Chapman v. California (1967) 386 

U.S. 18, 24 (Chapman).) In other words, the record reveals that this presumed error was 

unimportant in relation to everything else the jury considered regarding appellant’s guilt. 

(Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. 

McGuire (1991) 502 U.S. 62, 72–73, fn. 4.) Likewise, it is not reasonably probable the 

verdicts would have been more favorable to appellant absent this presumed error. 

(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Consequently, appellant’s 

arguments are without merit, and this claim fails.

II. The Trial Court did not Abuse its Discretion in Permitting the Jury to Learn 

that Appellant had Viewed the two Pornographic Videos and any Presumed 

Error is Harmless.

Appellant contends that the trial court abused its discretion in allowing the jury to 

learn about the titles of two pornographic videos that he had viewed on his cell phone. 

He argues that the admission of this evidence rendered his trial fundamentally unfair, and 

he seeks reversal of all of his convictions. 
19.

A. Background.

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

to introduce into evidence the titles of three pornographic videos which appellant had 

apparently viewed on his phone. The defense opposed this request, arguing that this 

evidence was more prejudicial than probative. 

The prosecution eventually narrowed its request to introduce only two of the titles 

discovered on appellant’s phone: (1) “Father Abused a Sleeping Girl” and (2) “Teen Girl 

Forced By Father Sucking His Cock.” The prosecutor acknowledged that the website 

from where these videos were downloaded likely used adult actors, and it did not have 

child pornography on its platform. Nevertheless, the prosecutor asserted that these titles 

were probative of appellant’s possible interest in sexual relationships between fathers and 

daughters. After hearing the arguments, the court ruled that these two titles would be 

admissible at trial because they were relevant regarding appellant’s alleged sexual intent. 

The jury learned that appellant had visited pornographic websites on his phone, 

including the videos referenced above which had been deleted from the phone’s history. 

Law enforcement did not access these videos, and they did not know whether they 

involved child or adult pornography. Appellant also had web searches for strippers and 

for escort services. 

B. Standard of review.

An abuse of discretion standard is used to review a trial court’s rulings regarding 

relevancy and admissibility under Evidence Code section 352. (People v. Jones (2017) 

3 Cal.5th 583, 609.) Likewise, this standard is used to review a trial court’s ruling 

admitting evidence under Evidence Code section 1101. (People v. Daveggio and 

Michaud (2018) 4 Cal.5th 790, 824.) 

Under this standard, we will not disturb the trial court’s decision on appeal unless 

“the court exercised its discretion in an arbitrary, capricious or patently absurd manner 

that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. 
20.

Rodrigues (1994) 8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th 

148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds 

of reason under applicable law and relevant facts].) 

C. Analysis.

Appellant contends that he only viewed adult pornography and these two disputed 

videos did not depict actual minors. He argues that the issue for the jury was whether he 

had held sexual intent for his own daughter, but these videos were “adult in nature” and, 

thus, their probative value was greatly outweighed by the danger of undue prejudice. He 

maintains that the introduction of these titles rendered his trial fundamentally unfair. 

We reject appellant’s arguments. The trial court did not abuse its discretion and 

any presumed evidentiary error was harmless.

1. The court did not abuse its discretion.

Evidence Code section 1101, subdivision (a), prohibits the introduction of 

propensity evidence to prove a defendant’s conduct on a specific occasion. (People v. 

Jackson (2016) 1 Cal.5th 269, 299.) However, character evidence can be admitted under 

Evidence Code section 1101, subdivision (b), when offered for a non-propensity purpose, 

such as motive or intent. (People v. Jackson, supra, 1 Cal.5th at p. 300.) For this 

inquiry, the degree of similarity between the charged and uncharged conduct is often a 

key factor, and a “continuum exists” concerning the degree of similarity required. (Ibid.) 

The least degree of similarity is required to prove intent. (Ibid.) In contrast, a higher 

degree of similarity is required to prove a common design or plan, and the highest degree 

of similarity is required to prove identity.11 (People v. Jackson, supra, 1 Cal.5th at 

p. 300.)

11 Evidence Code section 1108 permits admission of evidence regarding a 

defendant’s uncharged sexual offenses when such evidence is relevant to show his or her 

propensity to commit similar sex crimes, so long as the admission of this evidence does 

not violate Evidence Code section 352. (People v. Reliford (2003) 29 Cal.4th 1007, 

1012–1013; People v. Falsetta (1999) 21 Cal.4th 903, 915.) In a footnote, appellant 
21.

Here, appellant disputed the charges filed against him, making his criminal intent a 

relevant issue for the jury. To prove that he had committed lewd acts, the prosecution 

was required to show that he had acted with the intent of arousing, appealing to, or 

gratifying his lust, passions or sexual desires. (§ 288, subd. (a); CALCRIM No. 1110.)

It was undisputed that appellant had viewed a wide variety of adult pornography, 

including videos with titles that purported to show one father sexually abusing his 

daughter, and another father forcing his daughter to perform fellatio. Although these two 

disputed videos may have depicted adult performers, that does not lessen the relevancy of 

their titles. Instead, those titles strongly suggested that the videos purported to depict 

sexual acts occurring between family members and involving females who were 

supposedly underaged. Because he watched these videos, the circumstantial evidence 

strongly suggested that appellant may have derived sexual gratification from scenes of 

incest, or daughters abused and/or forced to perform sex acts. As such, these titles had a 

tendency in reason to prove or disprove a disputed issue of fact that was of consequence 

to the action. (Evid. Code, § 210.) Thus, this evidence was relevant to the issue of 

appellant’s criminal intent regarding his own underaged daughter, and whether he had 

intended to commit lewd acts with her. Accordingly, these titles had probative value. 

Indeed, the title regarding a father abusing his sleeping daughter was extremely similar to 

some of the charged behavior in this matter.

Appellant argues that the second disputed video purported to show fellatio, but he 

was not charged in this matter with oral copulation. According to appellant, there was no 

similarity between that video’s title and his conduct with the Victim. Thus, appellant 

contends that, at the very least, the court abused its discretion in allowing the jury to learn 

asserts that Evidence Code section 1108 is inapplicable in this situation. He notes that 

the parties agreed below that these two pornographic videos involved adult rather than 

child actors. We agree that Evidence Code section 1108 is inapplicable here because 

nothing establishes that appellant committed a criminal offense when watching or 

possessing these videos.
22.

that he had visited that second website. We disagree. Although appellant was not 

charged with oral copulation in this matter, the title of the second video was nevertheless 

relevant to the pending charges. Just like the first video, the second video reasonably 

suggested that appellant had an unnatural sexual interest regarding fathers and daughters. 

The second video also reasonably demonstrated that appellant had a repeated and 

ongoing desire to view videos depicting this theme. Thus, even the second video had 

probative value, and we cannot state that the trial court abused its discretion in 

determining that both videos were relevant.

Finally, we reject appellant’s arguments that the introduction of these titles was 

more prejudicial than probative. A trial court may exclude otherwise admissible 

evidence if its probative value is substantially outweighed by its prejudicial effect; that is, 

if its admission would result in the undue consumption of time, a danger of undue 

prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, 

§ 352.) “Evidence is substantially more prejudicial than probative [within the meaning of 

section 352] if, broadly stated, it poses an intolerable ‘risk to the fairness of the 

proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 

Cal.4th 690, 724.)

The admission of this evidence did not result in an undue consumption of time. 

The jury learned about these titles through the testimony of the lead detective. Her direct 

testimony in this regard was very short, overlapping in two pages of the reporter’s 

transcript. Nothing about this testimony demonstrates or even reasonably suggests that 

the jury would have been confused or misled. Instead, the detective simply read the two 

titles from the forensic report which showed that appellant had found these videos on the 

internet, watched them, and subsequently deleted them from his browser’s history. 

Although the disputed titles conveyed subject matters that are deplorable, the 

jurors did not view the actual videos or see the acts which the titles suggested. The brief 

mention of these two titles could not have possibly posed an intolerable risk to the
23.

fairness of the proceedings or the reliability of the trial outcome. Especially in light of 

the overwhelming evidence introduced against appellant, it does not appear reasonably 

likely that these titles would have inflamed the emotions of the average juror, motivating 

them to use this information to punish appellant. (See Vorse v. Sarasy (1997) 53 

Cal.App.4th 998, 1009 [setting forth these requirements to deem evidence more 

prejudicial than probative].) Consequently, it cannot be stated that this evidence was 

more prejudicial than probative. (Evid. Code, § 352.)

Based on this record, the trial court did not exercise its discretion in an arbitrary, 

capricious or patently absurd manner. The court’s evidentiary ruling did not fall outside 

the bounds of reason under the applicable law and relevant facts. Further, a manifest 

miscarriage of justice did not occur. Thus, an abuse of discretion is not present and this 

claim fails. In any event, we also conclude that any presumed error was harmless.

2. Any presumed error was harmless.

A trial court’s discretionary ruling involving the ordinary rules of evidence does 

not normally implicate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 

611; see also People v. Bradford (1997) 15 Cal.4th 1229, 1325 [disallowing defense 

evidence is not also the denial of the right to present a defense].) Thus, the standard 

under Watson, supra, 46 Cal.2d at p. 836, is the appropriate method to analyze any 

alleged harm from evidentiary error. (People v. Cudjo, supra, 6 Cal.4th at p. 611.) 

Under this standard, we ask whether it is reasonably probable the verdict would have 

been more favorable to the defense absent the error. (Watson, supra, 46 Cal.2d at 

p. 836.)

Here, during trial, appellant’s counsel had the lead detective admit that she had no 

idea what the actual videos looked like. During closing argument, the prosecutor only 

briefly mentioned these disputed titles. The prosecutor asserted that these porn sites, 

along with appellant’s possession of photos depicting the Victim’s vagina, were 
24.

circumstantial evidence corroborating the Victim’s testimony. The prosecutor also 

argued that these videos demonstrated that appellant had lied about randomly watching 

pornography. According to the prosecutor, this was “not a series of unfortunate events” 

and, instead, appellant had twice watched the video about the father abusing a sleeping 

girl. The prosecutor emphasized to the jurors that these titles were not meant to prove the 

charge of child pornography, which was established by the photos of the Victim. The 

prosecutor acknowledged to the jurors that adult pornography is “common” and 

“normal.” The prosecutor stated that it is not a crime for consenting adults to watch adult 

pornography. However, the prosecutor argued that it was not a coincidence that appellant 

had watched these videos. Instead, this is what gratifies him sexually. 

Although the prosecutor mentioned these titles during closing argument, they were 

not a cornerstone of the prosecution’s case, and the prosecutor acknowledged to the jury 

that these titles were not meant to prove the child pornography charges. Moreover, this 

was not a close case. The prosecution introduced overwhelming evidence establishing 

appellant’s criminal intent. The Victim’s testimony was consistent and credible. The 

photos and videos recovered from appellant’s phone corroborated her accusations that he 

had touched her inappropriately. Indeed, appellant twice photographed himself touching 

and manipulating her vagina. He also recorded himself touching her buttocks while 

pulling down her underwear slightly and describing her as having a “sexy body” and she 

was driving him crazy. Appellant kept photos of the Victim’s vagina hidden on a secret 

app along with naked photos of women, and photos of his own erect penis. The day after 

the Victim disclosed this abuse, appellant texted her saying he was sad because he had 

told her “not to say.” 

Based on the overwhelming evidence introduced against appellant, it is not 

reasonably probable he would have obtained more favorable verdicts had the trial court 

precluded one or both of the disputed titles from being introduced into evidence. As 

such, any presumed evidentiary error is harmless, and this claim fails.
25.

III. Appellant Fails to Demonstrate that his Counsel was Ineffective in Failing to 

Seek a Limiting Instruction Regarding the Titles of the Pornographic Videos.

Appellant contends that his trial counsel was ineffective because he failed to 

request a limiting instruction regarding the two titles of the pornography videos which 

were discovered on his cell phone and disclosed to the jury. Based on alleged prejudice, 

he seeks reversal of all of his convictions. 

In relevant part, CALCRIM No. 375 instructs jurors that, if they decide a 

defendant has committed uncharged acts, they may (but are not required to) consider such 

evidence for the limited purpose of deciding whether the defendant acted with the 

required specific intent to prove the charged offenses. However, the instruction also 

informs the jurors that they cannot consider this evidence for any other purpose, and they 

cannot conclude from the evidence that the defendant has a bad character, or is disposed 

to commit crime. (CALCRIM No. 375.)

It is undisputed that appellant’s trial counsel did not request this limiting 

instruction, which was not read to appellant’s jury. The trial court did not have a sua 

sponte duty to provide this limiting instruction. (People v. Hawkins (1995) 10 Cal.4th 

920, 942, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.) 

Appellant argues that his trial counsel could have had no legitimate tactical reason for not 

requesting this limiting instruction. He contends it is reasonably probable the outcome of 

this matter would have been different if his counsel had requested such an instruction. 

We reject appellant’s claim. To show ineffective assistance of counsel, a 

defendant must establish two criteria: (1) that counsel’s performance fell below an 

objective standard of reasonable competence and (2) that he was thereby prejudiced. 

(Strickland v. Washington, supra, 466 U.S. at pp. 687–688.) The defendant has the 

burden of showing both deficient performance and resulting prejudice. (People v. Lucas, 

supra, 12 Cal.4th at p. 436.) To establish prejudice, a defendant must demonstrate a 
26.

reasonable probability that, absent the errors of counsel, the result would have been 

different. (Ibid.) This must be enough to undermine confidence in the outcome. (Ibid.)

In the present matter, we need not analyze whether or not defense counsel acted 

reasonably in failing to request a limiting instruction regarding the two disputed titles. 

Instead, appellant does not establish that he was prejudiced from his counsel’s alleged 

ineffective assistance. (See People v. Mendoza (2000) 24 Cal.4th 130, 164 [“If the 

defendant fails to show prejudice, a reviewing court may reject the claim without 

determining the sufficiency of counsel’s performance.”].) We have already concluded 

that overwhelming evidence was introduced to establish appellant’s guilt for all of the 

charged crimes. Moreover, the prosecutor did not overly emphasize these two titles 

during closing argument, and the prosecutor informed the jurors that these titles were not 

intended to prove the child pornography charges. During the defense close, appellant’s 

trial counsel argued to the jury that appellant had a history of looking at adult 

pornography, and he had sought out strippers and prostitutes. According to the defense, 

the disputed videos were not “his entire pornographic profile.” Defense counsel asserted 

that his pornographic history showed that he is sexually attracted to adult women. 

Based on this record, our confidence in the outcome of this trial is not undermined. 

(See Strickland v. Washington, supra, 466 U.S. at pp. 687–688; People v. Lucas, supra,

12 Cal.4th at p. 436.) Appellant’s guilt was conclusively established. Thus, we reject 

appellant’s assertion that this was a “relatively close case.” He does not establish that a 

reasonable probability exists that the outcome of this matter would have been different 

had his counsel requested this limiting instruction. Accordingly, appellant does not show 

that his counsel rendered ineffective assistance, and this claim fails.

IV. We Vacate any Remaining Balance Owed for the Presentence Probation 

Report.

At sentencing, the trial court ordered appellant to pay $500 to cover the cost of the 

presentence probation report pursuant to former section 1203.1b. The parties agree, as do 
27.

we, that it is appropriate to vacate any remaining balance of this imposed financial 

obligation. 

Effective July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) repealed 

former section 1203.1b and abrogated the court’s authority to impose and collect the 

probation report fee. This bill also enacted section 1465.9, which made any balance 

remaining due uncollectible and unenforceable. (People v. Clark (2021) 67 Cal.App.5th 

248, 259–260.) Accordingly, we will vacate any remaining balance owed. 

V. Appellant Did Not Suffer Prejudice from the Sentencing Error in Counts 3 

and 9.

In count 3, appellant was convicted of a lewd act (touching the Victim’s vagina 

the first time) in violation of section 288, subdivision (a). The court deemed this 

conviction the principal determinate term, and it imposed an aggravated prison sentence 

of eight years. 

In count 9, appellant was convicted of possession of child pornography in 

violation of section 311.11, subdivision (a). The court imposed an aggravated term of 

three years, but this sentence was stayed. 

At sentencing, the trial court cited the following three factors in aggravation: 

(1) The Victim was particularly vulnerable because appellant committed some 

of the sexual offenses “on many occasions” when she was asleep; 

(2) The manner in which the crimes were committed demonstrated 

sophistication or professionalism on appellant’s part because he had the Victim sleep in 

the same bed with him, and he convinced her to lie to law enforcement and report it was 

the Boyfriend who had committed these offenses; and

(3) As the Victim’s parent, appellant took advantage of a position of trust. 

When this sentencing occurred in June 2021, the court had discretion to select a 

prison term that best served the interests of justice. (§ 1170, former subd. (b).) The court 

was permitted to consider the circumstances in aggravation or mitigation, “and any other 
28.

factor reasonably related to the sentencing decision.” (Cal. Rules of Court, former rule 

4.420(b).) The court could rely on “the case record, the probation officer’s report, other 

reports and statements properly received, statements in aggravation or mitigation, and 

any evidence introduced at the sentencing hearing.” (Ibid.)

However, in October 2021, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate 

Bill 567) was signed into law, which amended section 1170, subdivision (b). (People v. 

Dunn (2022) 81 Cal.App.5th 394, 402 (Dunn).) Under the current law, the middle term is 

the presumptive sentence unless certain circumstances exist. (Ibid.) Effective January 1, 

2022, a trial court may now impose an upper term sentence only where there are 

circumstances in aggravation that justify the imposition of a term of imprisonment 

exceeding the middle term. (Ibid.) Further, a trier of fact must have found true beyond a 

reasonable doubt those facts underlying all of the aggravating circumstances, or the 

defendant must have stipulated to them. (Ibid.) A court is required to state on the record 

the facts and reasons for choosing the sentence imposed. (§ 1170, subd. (b)(5).)

A. This change in law retroactively applies to appellant.

The parties agree, as do we, that this change in law applies retroactively to 

appellant. A panel from this court has already held that Senate Bill 567 applies 

retroactively to criminal matters that are not yet final on appeal. (Dunn, supra, 81 

Cal.App.5th at p. 403.) Because appellant’s criminal matter is not yet final, he benefits 

from Senate Bill 567.

Although respondent concedes that Senate Bill 567 retroactively applies to 

appellant, respondent argues that a remand should be denied because any sentencing error 

was harmless. Respondent asks us to follow People v. Flores (2022) 75 Cal.App.5th 495, 

500 (Flores). In contrast, appellant contends that a new sentencing hearing is required 

because the jury did not find true the factors in aggravation upon which the trial court 

relied. Appellant asserts that he was prejudiced because it is unknown what conclusions 
29.

the jurors would have reached had they been asked to consider whether the aggravating 

factors were true. In general, appellant asks us to follow People v. Lopez (2022) 78 

Cal.App.5th 459 (Lopez). He urges us to not follow Flores, contending it was wrongfully 

decided.

We decline to rely on respondent’s cited authority, Flores. Nevertheless, we agree 

with respondent that a remand is not warranted. Based on both Lopez and this court’s 

opinion in Dunn, we conclude that any sentencing error was harmless.

B. The approach articulated in Lopez.

In Lopez, the opinion upon which appellant relies, the Court of Appeal for the 

Fourth District, Division One, determined that, when a jury is required to find true a 

sentencing factor beyond a reasonable doubt and the court fails to submit that factor to 

the jury, that error may be deemed harmless if the reviewing court can conclude beyond a 

reasonable doubt that a jury would have found true beyond a reasonable doubt every 

factor on which the trial court relied in imposing the aggravated sentence. (Lopez, supra, 

78 Cal.App.5th at pp. 465–466.) If the reviewing court cannot reach such a conclusion, 

the question then is whether it is reasonably probable12 the trial court would have 

nevertheless imposed the upper term if it had recognized that it could permissibly rely on 

only one, a few, or none of the aggravating factors—rather than all of them—on which it 

previously relied. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) If the answer to both 

of these questions is in the negative, a remand is required for the trial court to resentence 

the defendant. (Ibid.)

C. The approach articulated in Dunn.

Following Lopez, this court in Dunn likewise held that, if an aggravated sentence 

was imposed in violation of Senate Bill 567, any error can be deemed harmless pursuant 

12 This standard is taken from Watson, supra, 46 Cal.2d at p. 836. (Lopez, supra, 78 

Cal.App.5th at p. 467, fn. 11.)
30.

to a two-step analysis. (Dunn, supra, 81 Cal.App.5th at p. 401.) The Dunn court, 

however, disagreed with Lopez in one aspect. Instead of requiring a finding beyond a 

reasonable doubt that the jury would have found true all aggravating factors beyond a 

reasonable doubt, Dunn holds that a reviewing court need only conclude beyond a 

reasonable doubt that the jury would have found true beyond a reasonable doubt the facts 

underlying at least one aggravating circumstance supporting the imposition of the upper 

term. (Dunn, supra, at p. 401.) If so, then regarding the remaining aggravating factors (if 

any) which the trial court originally relied upon, the issue is whether the reviewing court 

can then state that there is a reasonable probability the jury would have found the 

remaining aggravating circumstance(s) true beyond a reasonable doubt. If these 

questions are resolved in the affirmative, then the sentencing error may be deemed 

harmless.13 (Dunn, supra, 81 Cal.App.5th at p. 401.)

The Dunn court explained in detail why it did not agree with Lopez’s holding that 

the federal standard of review under Chapman, supra, 386 U.S. 18, must be applied to all

aggravating circumstances. We do not recreate that full discussion here. In general, 

however, Dunn was concerned that Lopez had not provided a full and clear explanation 

for its holding. (Dunn, supra, 81 Cal.App.5th at pp. 408–409.) Moreover, Dunn noted 

that the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 holds that 

at least one aggravating factor must be proven to the Chapman harmless error standard to 

satisfy the Sixth Amendment of the United States Constitution, but ordinary errors of 

state law are subject to review pursuant to Watson, supra, 46 Cal.2d 818. (Dunn, supra,

13 The Dunn court clarified that, in order to reach the second step of the analysis, the 

reviewing court must conclude beyond a reasonable doubt that the jury would have found 

at least one aggravating circumstance true beyond a reasonable doubt. Otherwise, the 

sentence violates the Sixth Amendment of the United States Constitution. (Dunn, supra, 

81 Cal.App.5th at p. 401, fn. 5.) In relevant part, the Sixth Amendment declares that an 

accused person in a criminal trial has the right to a speedy and public trial by an impartial 

jury.
31.

81 Cal.App.5th at p. 409, citing People v. Sandoval, supra, 41 Cal.4th at p. 839.) 

Accordingly, Dunn holds that a minimum of one aggravating circumstance must be 

reviewed pursuant to Chapman, but the remaining aggravating circumstances (if any) 

involve only a state-created right to a jury trial that must be reviewed pursuant to Watson. 

(Dunn, supra, 81 Cal.App.5th at p. 409.)

Regarding the final step of the analysis, Dunn followed a similar approach to 

Lopez. According to Dunn, if at least one aggravating circumstance would have been 

found true but all aggravating circumstances would not have been found true, the 

reviewing court then asks whether there is a reasonable probability the trial court would 

have imposed the upper term sentence in light of the aggravating circumstances provable 

from the record. (Dunn, supra, 81 Cal.App.5th at p. 401.) If the answer is in the 

affirmative, the sentencing error may be deemed harmless. (Ibid.)

D. The approach articulated in Flores.

Both Dunn and Lopez disagreed with the opinion that respondent cites, Flores,

supra, 75 Cal.App.5th 495. In Flores, the Court of Appeal for the First Appellate 

District, Division Three, held that sentencing error under Senate Bill 567 could be 

deemed harmless if a reviewing court can conclude beyond a reasonable doubt that the 

jurors would have found true beyond a reasonable doubt at least one aggravating 

circumstance had it been submitted to them. (Flores, supra, 75 Cal.App.5th at p. 500.) 

Respondent asks us to follow Flores. However, both Dunn and Lopez criticized

how Flores analyzed prejudice in this situation, finding it too narrow. (See Dunn, supra, 

81 Cal.App.5th at p. 408; Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) Dunn

concluded that Flores was flawed in this regard because it did not provide “a complete 

standard” to analyze harmless error. (Dunn, supra, at p. 408.) We agree with the 

concerns articulated in Dunn regarding the analytical shortcomings appearing in Flores. 

As such, we decline to follow Flores. However, we nevertheless agree with respondent 
32.

that the sentencing error in this matter is harmless. We reach that conclusion under the 

approaches articulated in both Dunn and Lopez.

E. This matter.

We need not fully analyze the multiple steps articulated in either Dunn or Lopez to 

analyze harmless error in this situation. Instead, we need not go past the first inquiry. 

We can state beyond a reasonable doubt that the jury would have found true beyond any 

reasonable doubt all of the aggravating factors upon which the trial court relied to impose 

the upper term sentences.

The trial evidence overwhelmingly demonstrated that the Victim was particularly 

vulnerable. She was eight years old and younger when these crimes occurred, and 

appellant committed some of the sexual offenses when she was asleep. The evidence 

also overwhelmingly established that appellant committed these crimes in a sophisticated 

manner. The Victim explained that, when she would go to sleep in her own bed, 

appellant would talk about ghosts or some other scary subject. She would then crawl into 

bed with him because she was frightened. The Victim told the jury that on multiple 

occasions, and occurring at least 10 times, if not more, she would be in his bed and he 

would climb on top of her naked and place his penis or hand against her vagina. 

Appellant also convinced the Victim to lie to law enforcement. He used duress to 

compel her to report it was the Boyfriend who had molested her. She explained that she 

had falsely accused the Boyfriend because she had felt scared and pressured to do so 

from appellant. 

Finally, the evidence overwhelmingly showed that, as the Victim’s parent, 

appellant took advantage of his position of trust to commit these crimes. At trial, the 

Victim said she loved appellant, and she had thought that he was committing these crimes 

for his own pleasure. She had wanted to make her father happy, and she had wanted to 

make him feel good. 
33.

Appellant concedes that evidentiary support exists for all three of the factors in 

aggravation upon which the trial court relied. However, appellant asserts that, because 

those factors are subjective in nature, it is impossible for this court to determine beyond a 

reasonable doubt that the jury would have found any of them true. We disagree. The 

evidence conclusively and overwhelmingly established that the Victim was particularly 

vulnerable, appellant used a sophisticated approach to commit these crimes, and he 

abused his position of trust over her. Therefore, appellant’s sentence does not violate the 

Sixth Amendment of the United States Constitution. (Dunn, supra, 81 Cal.App.5th at 

p. 401, fn. 5.) Under both Dunn and Lopez, this sentencing error may be deemed 

harmless. (Dunn, supra, 81 Cal.App.5th at p. 401; Lopez, supra, 78 Cal.App.5th at 

p. 467, fn. 11.) Consequently, we will not vacate the sentences in counts 3 and 9, and this 

claim fails.

VI. The Sentence in Count 10 is Reduced from Two Years to Eight Months.

For count 10, the jury convicted appellant of using a minor to create child 

pornography in violation of section 311.4, subdivision (c). For this conviction, the trial 

court imposed a subordinate determinate term of two years. The parties agree, as do we, 

that this sentence is erroneous. The probation report had a scrivener’s error and it listed 

this conviction under section 311.4, subdivision (b), which has a longer sentencing triad. 

For the actual conviction in count 10, the sentencing triad under section 311.4, 

subdivision (c), is 16 months, or two or three years in the state prison. (See § 18, subd. 

(a).) Accordingly, appellant’s subordinate determinate sentence in count 10 must be 

reduced to eight months, which represents one-third of the middle term. 

We would normally remand this matter for resentencing. However, a remand is 

not warranted in this situation because the trial court otherwise imposed the maximum 

possible sentence against appellant. (See People v. Buycks (2018) 5 Cal.5th 857, 896, 
34.

fn. 15.) Consequently, we will direct the trial court to issue an amended abstract of 

judgment reflecting this modification in appellant’s sentence.

Finally, the determinate abstract of judgment has an additional clerical error 

regarding count 10. The abstract incorrectly lists this conviction as occurring under 

section 311.11, subdivision (a). We will direct the court to correct that mistake when it 

issues the amended abstract. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [an 

appellate court may correct clerical errors appearing in abstracts of judgment either on its 

own motion or upon application of the parties].) The amended abstract shall reflect a 

conviction in count 10 in violation of section 311.4, subdivision (c).

VII. Appellant has Forfeited his Claim that Sentencing Error Occurred in Counts 

1 and 2; In any event, this Claim Fails on its Merits and Appellant does not 

Demonstrate Ineffective Assistance of Counsel.

In counts 1 and 2, the trial court imposed consecutive prison sentences of 15 years

to life for appellant’s sexual penetration of the Victim (§ 288.7, subd. (b)). These 

convictions were based on the photos discovered on appellant’s cell phone in a 

clandestine app in which he was seen manipulating the Victim’s vagina. He used his 

finger in one picture and his thumb in another picture to open her vagina.14

At sentencing, the court noted the “egregious” nature of appellant’s actions. In 

general, it observed that all of appellant’s crimes “were independent of each other” 

because they occurred on separate dates and occasions, and involved different types of 

misconduct. With respect to counts 1 and 2, the court stated that these two offenses were 

committed on different occasions.15

In the present claim, appellant asserts that the trial court’s reasoning for imposing 

these consecutive sentences was factually flawed. He argues that the evidence shows that 

14 Only a slight penetration of the labia majora is needed to establish a sexual 

penetration of a female victim. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1364.)

15 When imposing this sentence, the trial court misspoke regarding the exhibit 

number supporting the conviction in count 2. 
35.

his criminal conduct in counts 1 and 2 occurred during the same incident. In the 

alternative, he contends that his trial counsel was ineffective in failing to object to this 

sentence. Appellant requests that we remand this matter for resentencing so the trial 

court can reassess the issue of whether consecutive or concurrent sentences should be 

imposed in counts 1 and 2. 

We reject appellant’s arguments. This claim is forfeited and, in any event, it fails 

on its merits.

A. This claim is forfeited.

Our Supreme Court holds that a defendant must object at sentencing regarding 

claims that the lower court failed to properly make or articulate its discretionary 

sentencing choices. Failure to raise those concerns below results in forfeiture. (People v. 

Boyce (2014) 59 Cal.4th 672, 730–731.)

It is undisputed that appellant did not object below regarding the imposition of 

consecutive sentences in counts 1 and 2. Consequently, we agree with respondent that 

appellant has forfeited this claim. In any event, we also reject this claim on its merits and 

appellant fails to demonstrate ineffective assistance of counsel.

B. The trial court did not abuse its sentencing discretion.

Trial courts have the discretion to impose concurrent or consecutive sentences 

when confronted with multiple convictions. (§ 669, subd. (a); People v. Woodworth

(2016) 245 Cal.App.4th 1473, 1479.) To establish sentencing error in this matter, 

appellant points to California Rules of Court, rule 4.425. In relevant part, this rule 

permits a sentencing court to impose a consecutive sentence if the crimes were 

committed “at different times or separate places, rather than being committed so closely 

in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of 

Court, rule 4.425(a)(3).) Appellant notes that the photographs showing his manipulation 

of the Victim’s vagina were taken on the same day (September 30, 2016). He contends 
36.

that these photos were likely taken in the same photo shoot. Thus, he contends that these 

pictures were taken so closely in time and place as to indicate a single period of aberrant 

behavior. Moreover, he argues that these two pictures show a single criminal objective. 

We disagree that the court abused its sentencing discretion. California Rules of 

Court, rule 4.425, which appellant cites, is only a guideline for a sentencing court, and it 

does not impose a rigid obligation. (People v. Calderon (1993) 20 Cal.App.4th 82, 86–

87.) Moreover, only a single factor in aggravation is required to impose a consecutive 

term. (People v. Osband (1996) 13 Cal.4th 622, 728–729.)

Although these pictures were taken on the same day, it is impossible to determine 

from this record how much time passed from when appellant took the first photo until he 

took the second one. However, the record does demonstrate that some time did pass 

between the taking of both pictures. In the first picture, appellant used his finger to 

manipulate the Victim’s vagina. In the second picture, appellant used his thumb to open 

her vagina. Thus, it is clear that appellant changed the position of his hand after he 

inappropriately touched her the first time, and he touched her again with a different digit. 

As such, the record amply supports the trial court’s determination that these crimes 

occurred on different occasions. 

It is apparent that appellant had an opportunity to reflect on his criminal behavior 

before he took each photo and touched the Victim in different ways. In addition, the 

crimes in counts 1 and 2 involved several other aggravating circumstances. The Victim 

was particularly vulnerable. Further, the manner in which appellant touched her, 

photographing the different times he manipulated her vagina, indicated that he had 

planned out his lewd behavior in advance. (See Cal. Rules of Court, rule 4.421(a)(3) & 

(8) [circumstances in aggravation].) Finally, the court noted the “egregious” conduct that 

appellant exhibited throughout all of his criminal acts. Appellant concedes that this 

finding in aggravation could also support a consecutive sentence. We agree. Except in 
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certain limited exceptions, any circumstance in aggravation may be considered in 

deciding whether to impose a consecutive sentence. (Cal. Rules of Court, rule 4.425(b).)

Based on this entire record, the trial court had ample grounds to impose 

consecutive sentences in counts 1 and 2. We will not disturb the exercise of that 

discretion. (See People v. Davis (1995) 10 Cal.4th 463, 552 [affirming imposition of 

consecutive sentence].) As such, this claim fails. We also determine that ineffective 

assistance of counsel did not occur.

C. Appellant fails to demonstrate ineffective assistance of counsel.

We agree with respondent that it is not reasonably probable a more favorable 

sentence would have been imposed even if appellant’s trial counsel had objected. Prior 

to sentencing, the probation department had recommended consecutive indeterminate 

prison terms in counts 1 and 2. In addition, the prosecutor asserted that appellant should 

receive the maximum possible aggregate sentence, including consecutive sentences in 

counts 1 and 2. According to the prosecutor, appellant had used the Victim as a pawn in 

his life, and he had acted abhorrently as a father. 

At sentencing, the trial court stated that appellant had acted egregiously with the 

Victim, and the court concluded that the crimes in counts 1 and 2 had occurred on 

different occasions. The court imposed the maximum possible sentence against 

appellant, imposing an upper determinate term of eight years in count 3 for committing a 

lewd act upon a child in violation of section 288, subdivision (a). Consequently, it is 

readily apparent that, even if defense counsel had objected, the court would have 

nevertheless imposed consecutive sentences in counts 1 and 2. As such, appellant’s 

claim of ineffective assistance fails for lack of prejudice. (See People v. Lucas, supra, 12 

Cal.4th at p. 436.) Our confidence in the outcome of this matter is not undermined. 

(Ibid.) Therefore, appellant’s arguments are without merit and resentencing is not 

required.
38.

VIII. We Vacate the Fine Imposed under Section 294, Subdivision (b).

At sentencing, the trial court imposed a $1,000 restitution fine pursuant to section 

294, subdivision (b). The parties agree, as do we, that the imposition of this fine was in 

error. 

Section 294 permits a restitution fine if a defendant commits certain enumerated 

crimes. However, none of those enumerated crimes are applicable in this matter. As 

such, we agree with the parties that this fine must be vacated.

DISPOSITION

The judgment is modified as follows:

The subordinate determinate sentence imposed in count 10 is reduced from two 

years to eight months. The fine imposed under section 294, subdivision (b), is vacated. 

Any unpaid balance for the presentence probation report fee imposed under former 

section 1203.1b is vacated. The trial court shall prepare an amended determinate abstract 

of judgment that reflects these modifications. The court shall also reflect in the amended 

abstract that appellant was convicted in count 10 of violating section 311.4, subdivision 

(c). The court shall forward the amended abstract of judgment to the appropriate 

authorities. In all other respects and, as modified, we affirm the judgment.

LEVY, Acting P. J.

WE CONCUR:

FRANSON, J.

MEEHAN, J.