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Filed 5/24/24 P. v. Perdomo CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN C. CARPIO PERDOMO,

Defendant and Appellant.

 A168231

 (Alameda County

 Super. Ct. No. 20CR002654)

A jury convicted Juan C. Carpio Perdomo (Carpio)1 of three counts of 

lewd acts upon a child, A. Doe, under Penal Code section 288, 

subdivision (a).

2 The trial court sentenced Carpio to 8 years in prison and 

imposed a restitution fine of $7,200. Carpio contends the trial court erred by 

giving jury instruction CALCRIM No. 1193. Carpio further contends the 

court imposed a restitution fine of $7,200 in the mistaken belief that amount 

was the minimum it could impose. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, Carpio started dating his girlfriend, known as “Neung.”

Neung worked as a live-in nanny for a married couple, caring for their

1 We refer to appellant as Carpio as that is his preference.

2 All further statutory references are to the Penal Code.
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daughter. Neung continued working for the family for several years, 

including after their second child, A., was born in 2006. Neung and Carpio

grew close with the family and Carpio became A.’s godfather. In 2019, when 

A. was 13 years old, A. disclosed to his family that Carpio had sexually 

abused him when he was 6 years old. A.’s family then filed a police report. 

In 2022, the district attorney filed an amended information charging 

Carpio with three counts of lewd or lascivious act on a child under the age of 

14 (§ 288, subd. (a)). The information further alleged that Carpio took 

advantage of a position of trust or confidence to commit the offenses (Cal. 

Rules of Court, rule 4.421(a)(11)) and that the victim was “particularly 

vulnerable” (Cal. Rules of Court, rule 4.421(a)(3)). A jury trial took place in 

May 2022. 

Prosecution’s Case

The prosecution proffered the testimony of several witnesses, including 

A., A.’s parents, and Dr. Blake Carmichael, an expert in child sexual abuse 

accommodation syndrome (CSAAS). We briefly summarize their testimony 

here, only as relevant to this appeal.

A. testified that one night when he was between the ages of six and 

eight, Carpio went into A.’s bedroom and got into bed with him. A. knew he 

was around those ages because of the pajamas he was wearing and the bed he 

had at the time. Carpio pulled his pants down, exposing his penis, then 

placed his penis on A.’s leg and rubbed it back and forth. He grabbed A.’s 

wrist and moved his hand onto Carpio’s penis, forcing A.’s hand up and down

until Carpio ejaculated on A.’s body. A. went to the bathroom to try to clean 

it off, but some of the residue and smell remained, which bothered him.

A. returned to his room and saw Carpio fully dressed. A. got back into 

bed, and Carpio got into bed with him. Carpio again undressed and forced 
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A.’s hand back and forth on Carpio’s penis. Carpio also pulled A.’s pants 

down and touched A.’s penis. Carpio again ejaculated on A., after which 

point Neung came in the room, startling Carpio and leading him to quickly 

pull up his pants. Carpio then got dressed and told A. not to tell people what 

happened. 

Although A. had been confused at the time of the incident, he did not 

realize it was “not okay” until he took sexual education in middle school. A. 

ultimately disclosed the abuse to his family on a road trip when he was 13 

years old after hearing a podcast story about sexual abuse.

On cross-examination, the defense sought to impeach A.’s credibility,

including by questioning why he did not disclose the sexual abuse at an 

earlier age and highlighting inconsistencies in his accounts of the abuse over 

time.

One of A.’s parents testified that, when A. was between the ages of five 

and eight, she and the other parent noticed he became resistant to going to 

bed and did not want to put on his pajamas. In that period of time, A. would 

frequently wake up screaming. One night, they found a kitchen knife under 

A.’s bed, which he said he needed “ ‘for when bad guys come in,’ ” and they

sometimes found other knives under his bed or pillow. She also described the 

family road trip when A. disclosed the sexual abuse after hearing a radio 

show about a woman who had been sexually abused as a child. On a 

subsequent occasion, A. became upset by the smell of semen; he began to cry 

and said it reminded him of what Carpio had done to him. A.’s other parent

offered testimony consistent with the above-described events.

CSAAS Testimony

Dr. Blake Carmichael, the CSAAS expert, had not reviewed any 

information about this case and had never met with A. He testified only to 
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explain CSAAS, an educational tool used to help understand the dynamics 

and misconceptions of child sexual abuse and the way children may react to 

and report such abuse. CSAAS is not a diagnostic tool to determine whether 

a child was abused. 

Dr. Carmichael discussed in detail the five principles of CSAAS: 

secrecy; helplessness; entrapment or accommodation; delayed, unconvincing, 

or conflicted disclosure; and retraction. He testified there is often a loving

relationship between an abuser and a victim, and it is normal for a child to 

delay reporting the abuse for months or years, with even longer delays seen 

in male victims. Children who were abused at an early age can experience a 

change in perspective as they get older and learn about romance and sex, 

informing their reflections on what happened when they were younger. It is 

typical for a child to provide inconsistent or even conflicting details of the 

abuse.

Defense Case

Carpio testified on his own behalf. He never helped Neung put the 

children to bed. He did not understand why he had been arrested or accused 

of these offenses, which he denied committing. He never touched A. with his 

clothes off, exposed his penis to A., or climbed into A.’s bed. 

Dr. Andrea Shelley testified that she had evaluated Carpio and opined 

he did not have non-typical sexual interests, including an interest in children. 

CALCRIM No. 1193 Instruction 

At the request of both parties, the court instructed the jury with 

CALCRIM No. 1193 as follows: “You have heard testimony from Blake 

Carmichael regarding child sexual abuse accommodation syndrome. Blake 

Carmichael’s testimony about child sexual abuse accommodation syndrome is 

not evidence that the defendant committed any of the crimes charged against 
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him. You may consider this evidence only in deciding whether or not [A.]’s 

conduct was not inconsistent with the conduct of someone who has been 

molested, and in evaluating the believability of his testimony.” The standard 

CALCRIM No. 1193 instruction in effect at the time of trial was not modified 

in any way.3

Verdict and Sentencing

The jury returned a guilty verdict on all three counts. The trial court 

also found true that Carpio took advantage of a position of trust or confidence 

and that A. was particularly vulnerable. Probation recommended that 

probation be denied and that the court impose a restitution fine of $10,000. 

At sentencing, the court found Carpio was ineligible for probation

under section 1203.066 and sentenced Carpio to a total of eight years in 

prison, noting the seriousness of the crime and the repercussions it caused for 

A. and his family. The court found Carpio had the ability to pay fines and 

fees. It imposed a $7,200 restitution fine, calculating the amount as follows: 

“There’s a restitution fund fine under 1202.4(b)(1) in the amount of $7200, 

which is the minimum. $300 times 8 times 3.” The court imposed, but 

stayed, a parole revocation fine of $7,200 under section 1202.45. Carpio

appealed.

DISCUSSION

I. The Court Did Not Err in Providing CALCRIM No. 1193

Carpio contends the trial court erred by instructing the jury with the 

portion of CALCRIM No. 1193 that provided the jury could consider Dr. 

Carmichael’s testimony “in evaluating the believability of [A.’s] testimony.”

He asserts this language allowed the jury to misuse the testimony to bolster

3 The instruction was revised in September 2022. The two versions are 

nearly identical for purposes of this appeal.
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A.’s credibility, which “tipped the scales” in favor of the prosecution and 

lightened its burden of proof, in violation of his right to due process. We are 

not persuaded.

As an initial matter, Carpio acknowledges he requested the CALCRIM 

No. 1193 instruction below but asserts he did not forfeit this claim as the 

alleged error affected his substantial rights. (§ 1259.) The Attorney General 

argues the claim is forfeited and meritless. However, “[w]e need not decide 

whether forfeiture applies in this case because the trial court did not err in 

giving CALCRIM No. 1193.” (People v. Ramirez (2023) 98 Cal.App.5th 175, 

219 (Ramirez).)

It is a longstanding principle that CSAAS evidence “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.” 

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

However, and contrary to Carpio’s assertion, CALCRIM No. 1193 does 

not result in a misuse of CSAAS evidence, particularly when viewed in the 

context of Dr. Carmichael’s testimony that CSAAS is an educational tool used 

to understand a child’s reactions to abuse, not a diagnostic tool to determine 

whether a child was, in fact, abused. (See Ramirez, supra, 98 Cal.App.5th at 

pp. 219–220.) Indeed, as Carpio concedes, numerous courts have rejected 

similar challenges to the instruction as the ones raised here. (See, e.g., id. at

220 [instruction does not violate defendant’s right to due process]; People v.

Lapenias (2021) 67 Cal.App.5th 162, 175–176 [instruction accurately

instructs the jury on proper use and limitations of CSAAS evidence]; People v.

Gonzales (2017) 16 Cal.App.5th 494, 504 [instruction does not lighten
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prosecution’s burden of proof or violate due process].) We join those courts in 

concluding the CALCRIM No. 1193 instruction was proper and did not violate

Carpio’s right to due process.

Further, any error in giving the portion of the instruction challenged by 

Carpio would not rise to the level of reversible error. (See Ramirez, supra, 98 

Cal.App.5th at p. 220.) The challenged portion of the instruction was 

preceded by the court’s statement that Dr. Carmichael’s testimony was not to 

be used as evidence that Carpio committed the offenses. The court also 

instructed the jury as to the prosecution’s burden of proof; witness credibility 

evaluation; and to consider evidence that was admitted for a limited purpose 

only for that purpose. It is not reasonably likely the jury misunderstood 

these instructions as a whole. (See People v. Castillo (1997) 16 Cal.4th 1009, 

1016–1017.) And, in light of the significant inculpatory evidence admitted at 

trial, including A.’s detailed testimony of the sexual abuse and his parents’

corroborating accounts, we conclude Carpio “would have been convicted of the 

same offenses regardless of any alleged error in the instruction.” (See

Ramirez, at p. 220.)

II. The Court Did Not Err in Imposing the Restitution Fine

Carpio argues the trial court’s imposition of a $7,200 restitution fine 

was premised on the court’s mistaken belief that amount was the statutory 

minimum, rather than the applicable statutory minimum of $300. 

We find Carpio forfeited this claim by failing to raise it to the 

sentencing court; he neither objected to the amount nor sought clarification of 

how the court reached that sum. (See People v. Avila (2009) 46 Cal.4th 680, 

729 [failure to raise challenge below to trial court’s discretionary 

determination of restitution fine forfeits argument on appeal].)
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And we reject Carpio’s assertion that the issue is not forfeited on the 

basis that counsel provided ineffective assistance by failing raise the issue 

below.

To prevail on a claim of ineffective assistance, a defendant must 

demonstrate both that “counsel’s performance was deficient, in that it fell 

below an objective standard of reasonableness under prevailing professional 

norms,” and resulting prejudice. (People v. Mai (2013) 57 Cal.4th 986, 1009.)

Reversal for ineffective assistance of counsel is warranted “only if (1) the 

record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to 

provide one, or (3) there simply could be no satisfactory explanation.” (Ibid.) 

Carpio fails to make such a showing. 

“Absent evidence to the contrary, we presume that the trial court knew 

and applied the governing law.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 

1390.) Section 1202.4, subdivision (b)(1) provides that a restitution fine of 

not less than $300 and not more than $10,000 “shall be set at the discretion 

of the court and commensurate with the seriousness of the offense.” 

(§ 1202.4, subd. (b)(1).) Subdivision (b)(2) sets out a formula the court “may” 

use to determine the fine as “the product of the minimum fine pursuant to 

paragraph (1) multiplied by the number of years of imprisonment the 

defendant is ordered to serve, multiplied by the number of felony counts of 

which the defendant is convicted.” (§ 1202.4, subd. (b)(2).)

The parties agree the court’s calculation of “$300 times 8 times 3”

referred to the $300 statutory minimum, the 8-year sentence imposed, and

the three counts of conviction, reflecting the formula in section 1202.4, 

subdivision (b)(2). According to Carpio, the court’s statement that there was 

“ ‘a restitution fund fine under 1202.4(b)(1) in the amount of $7200, which is 
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the minimum. $300 times 8 times 3’ ” can only be read to mean the court

believed it did not have the discretion to impose a fine of less than $7,200.

However, that is not the only logical reading as the court could have been 

saying that “it was the minimum of $300” times the other factors. Absent 

any indication that the court was confused about its authority or somehow 

thought $7,200 was the minimum, there is indeed no sound reason to believe 

the court was not aware of its authority. (See People v. Gutierrez, supra, 58 

Cal.4th at p. 1390.)

We also decline to read that statement in isolation. The trial court 

emphasized the serious nature of the offenses both before and after imposing 

the restitution fine pursuant to section 1202.4, which allows a fine up to 

$10,000, the amount recommend by probation. (§ 1202.4, subd. (b)(1) [fine is 

to be set “at the discretion of the court and commensurate with the 

seriousness of the offense.”].) Given the court’s emphasis on the seriousness 

of the offense, it is unlikely it would have opted for $7,200 if it indeed 

believed that to be the minimum fine. In these circumstances, it is readily 

apparent why counsel may not have objected.

Accordingly, we conclude both that the issue was forfeited and that 

there was no ineffective assistance in failing to object to the fine.

DISPOSITION

The judgment is affirmed.
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Rodríguez, J.

A168231/People v. Carpio Perdomo