(HC) Phea v. The People of the State of California

Filing 52

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/16/2021 ORDERING the Clerk to attach ECF No. 36 - 1 to these findings and recommendations as Appendix A. IT IS RECOMMENDED that petitioner's 22 wr it for habeas corpus be dismissed due to all claims being either procedurally defaulted, and/or without merit, and judgment entered in favor of respondent; and the District Court decline to issue a certificate of appealability. Referred to Judge William B. Shubb; Objections to F&R due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALANJE PHEA,

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Petitioner,

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No. 2:20-cv-00283 WBS GGH P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CHRISTIAN PFEIFFER, Warden,

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Respondent.

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Introduction and Summary
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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At times, judges and lawyers must think that they have “seen it all” with respect to procedural

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twists and turns. This case proves that there is always a new path to be fashioned.
Petitioner was convicted of 33 counts of sexual misconduct with minors. The Second

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Amended Petition (SAP) indicates that petitioner was sentenced to 46 years and 4 months.

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Petitioner raises claims concerning the admission of what has become known as “propensity”

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evidence and expert testimony regarding the reactions of abused children. He has also raised

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ineffective assistance of counsel claims with respect to admission of the above evidence.

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For the reasons set forth herein, petitioner has not exhausted his ineffective assistance of

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counsel claims; he has procedurally defaulted the primary evidentiary claims 1, and in any event,

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the primary claims are presently not cognizable in federal habeas corpus. Finally, even if the

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ineffective assistance claims are reviewed on its merits, they too must fail.

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Factual Background

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The issues to be resolved in this habeas action do not require a full recitation of the

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lengthy and depressing facts. They are set forth in the partially published People v. Phea, 25 Cal.

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App. 5th 583 (2018). The entire appellate opinion, found at ECF Nos. 36-1; 37-56 is referenced

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herein and attached as Appendix A. To the extent necessary, the facts necessary for discussion are

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set forth in the individual discussion sections.

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Issues Presented

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As set forth in the SAP, the issues are as follows:
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Review should be granted to determine if Evidence Code Section 1108 violates

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[petitioner’s] due process rights to a fair trial;
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Review should be granted to determine if Section 1108 as applied here violated the

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14th Amendment due process guarantee; and
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Review should be granted to determine if Child Sexual Abuse Accommodation

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Syndrome (“CSAAS”) evidence violates due process.

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The Traverse, ECF No. 50, contains a hodge-podge of varying contentions and exhibits,

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only a couple of which are germane to the issues raised. The issues set forth in the SAP will not

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be expanded even if the undersigned could fathom from the Traverse what those issues might be.

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Procedural Background

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After conviction and judgment, petitioner, represented by counsel, appealed. With respect

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to the primary issues, the court found that petitioner had forfeited his claim that Cal. Evid. Code

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Section 1108 (propensity evidence) was unconstitutional on its face and as applied. ECF No. 36-1

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at 26-27. The court also held forfeited any contention that CSAAS evidence violated due process.

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For sake of clarity, the claims which do not rely on asserted ineffective assistance will be
termed “primary” claims to distinguish them from ineffective assistance claims.
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Id. at 56. The court went on to deny the merits of petitioner’s ineffective assistance of counsel

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claims on the above issues finding that both state and federal law dictated that an objection would

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have been unmeritorious. The appellate court made other findings not germane to the issues here.

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The petition for review made it to the California Supreme Court, ECF No. 37-57

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abandoned the ineffective assistance of counsel claims and ignored the appellate court holding

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that petitioner had forfeited the issues raised herein. Evidently, the petition was meant to catch the

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eye of the California Supreme Court on the merits of the forfeited issues without arguing the

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“baggage” of forfeiture and ineffective assistance of counsel. The petition for review was denied.

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ECF No. 37-58.

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Thereafter, petitioner made a number of successive state habeas corpus petitions, none of

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which address the issues here. See ECF Nos. 60 through 67. Petitions were filed in the California

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Court of Appeal, but again, these are irrelevant to the issues here.

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Discussion

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A. Exhaustion

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In order to exhaust state proceedings in order to qualify for federal habeas, one must take

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a habeas claim to the highest state court. Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002)

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(citing Duncan v. Henry, 513 U.S. 364, 365 (1995)); McNeeley v. Arave, 842 F.2d 230, 231 (9th

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Cir. 1988). “Unexhausted claims may be procedurally defaulted. See, e.g., Reese v. Baldwin, 282

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F.3d 1184, 1190 (9th Cir.2002). A claim is procedurally defaulted ‘if the petitioner failed to

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exhaust state remedies and the court to which the petitioner would be required to present his

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claims in order to meet the exhaustion requirement would now find the claims procedurally

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barred.’ Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).”

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Beaty, supra, at 987.

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As set forth above, petitioner explicitly abandoned his ineffective assistance of trial

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counsel claims when presenting the petition for [direct] review before the California Supreme

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Court. In order for these claims to now be exhausted, petitioner would have to file a state habeas

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petition with the California Supreme Court. Although in California there is no rigid, set time limit

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for bringing a habeas claim before the state supreme court, habeas petitioners must bring their
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habeas claims without substantial delay. Martin v. Walker, 562 U.S. 307, 312 (2011).

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Undoubtedly, given this set of circumstances, petitioner would be barred from proceeding on this

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claim in the California Supreme Court. Therefore, it is possible to assert that the ineffective

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assistance of counsel claims are procedurally defaulted. See, e.g., Cockett v. Ray, 333 F.3d 938,

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943 (9th Cir. 2003). 2

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However, respondent has not moved to default the ineffective assistance of trial counsel

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claims; respondent simply observes the unexhausted status. Petitioner has not asked to stay this

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case in order to exhaust such a claim. Nevertheless, even if requested, the undersigned would

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recommend denial. One cannot assert diligence for the bringing of a claim when it was knowingly

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abandoned during state proceedings. And, in order to have a timely claim, a Rhines 3 stay would

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have to be authorized—a request which requires diligence in the bringing of a claim. Moreover,

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the result of exhaustion at this time would undoubtedly be a finding that the claim was not timely

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for state review purposes. Finally, for the reasons set forth, infra, any ineffective assistance of

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trial counsel claim would be denied on its merits.

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Because Cockett has procedurally defaulted her Confrontation
Clause claim, she “may not raise the claim in federal habeas, absent
a showing of cause and prejudice or actual innocence.” Wells v.
Maass, 28 F.3d 1005, 1008 (9th Cir.1994). Cockett contends that the
ineffective assistance of her trial and appellate counsel constitutes
cause for her default. To constitute cause for procedural default of a
federal habeas claim, the constitutional claim of ineffective
assistance of counsel must first have been presented to the state
courts as an independent claim. Murray v. Carrier, 477 U.S. 478,
488–89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Because Cockett's
claim of ineffective assistance of trial counsel was procedurally
defaulted, trial counsel's performance cannot constitute cause.
Therefore, we review only her claim of ineffective assistance of
appellate counsel to determine whether it constitutes cause.
Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003)
In this case, no claim for ineffective assistance of appellate counsel has been asserted, nor
would it be exhausted.
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Rhines v. Weber, 544 U.S. 269 (2005).
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The undersigned finds that the ineffective assistance of trial counsel claim is unexhausted.

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Nevertheless, the undersigned will recommend a denial of the claim on its merits, infra. See 28

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U.S.C. § 2254(b)(2).

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B. Procedural Default of the Primary Claims

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As set forth in the Procedural Background Section, the Court of Appeal found that

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petitioner had forfeited his claim to Section 1108 constitutionality (both facially and as applied)

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by failing to object. The same is true for the CSAAS expert evidence. Respondent does argue that

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the prejudicial evidence claims (both the Cal. Evid. Code 1108 (propensity evidence) and the

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expert CSAAS evidence) are procedurally defaulted. Respondent is correct.

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“A federal habeas court will not review a claim rejected by a state
court ‘if the decision of [the state] court rests on a state law ground
that is independent of the federal question and adequate to support
the judgment.’ ” Kindler, 558 U.S., at 55, 130 S.Ct., at 615 (quoting
Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991)). The state-law ground may be a substantive rule
dispositive of the case, or a procedural barrier to adjudication of the
claim on the merits. See Sykes, 433 U.S., at 81–82, 90, 97 S.Ct. 2497.

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Ordinarily, a state prisoner seeking federal habeas relief must first
“exhaus[t] the remedies available in the courts of the State,” 28
U.S.C. § 2254(b)(1)(A), thereby affording those courts “the first
opportunity to address and correct alleged violations of [the]
prisoner's federal rights,” Coleman, 501 U.S., at 731, 111 S.Ct. 2546.
The adequate and independent state ground doctrine furthers that
objective, for without it, “habeas petitioners would be able to avoid
the exhaustion requirement by defaulting their federal claims in state
court.” Id., at 732, 111 S.Ct. 2546. Accordingly, absent showings of
“cause” and “prejudice,” see Sykes, 433 U.S., at 84–85, 97 S.Ct.
2497, federal habeas relief will be unavailable when (1) “a state court
[has] declined to address a prisoner's federal claims because the
prisoner had failed to meet a state procedural requirement,” and (2)
“the state judgment rests on independent and adequate state
procedural grounds.” Coleman, 501 U.S., at 729–730, 111 S.Ct.
2546.

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To qualify as an “adequate” procedural ground, a state rule must be
“firmly established and regularly followed”. Kindler, 558 U.S., at 60
– 61, 130 S.Ct., at 618 (internal quotation marks omitted). [Fn. 4
omitted]. “[A] discretionary state procedural rule,” we held in
Kindler, “can serve as an adequate ground to bar federal habeas
review.” Id., at 60, 130 S.Ct., at 618. A “rule can be ‘firmly
established’ and ‘regularly followed,’ ” Kindler observed, “even if

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the appropriate exercise of discretion may permit consideration of a
federal claim in some cases but not others.” Id., at 60 – 61, 130 S.Ct.,
at 618.

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Walker, supra, at 315-316.
Failure to object is a time-honored procedural default. See Wainright v. Sykes, 433 U.S.

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72, 86-87; Leavitt v. Arave, 682 F.3d 1138 (9th Cir. 2012); Rich v. Calderon, 187 F.3d 1064,

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1069-70 (9th Cir. 1999); Flores v. Hickman, 533 F.Supp. 2d 1068, 1082-83 (C.D. Cal. 2008).

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Petitioner did not seek review of the forfeiture holdings; they are established for federal habeas

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purposes. 4

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Procedural default may be excused if petitioner shows “cause” for the lack of objection,

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and “prejudice” therefrom. In order to show cause, a petitioner must demonstrate “that some

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objective factor external to the defense impeded counsel's efforts to comply with the State's

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procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “Attorney error short of

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ineffective assistance of counsel does not constitute cause for a procedural default.” Murray, 477

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U.S. at 492; Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

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Here, petitioner ignores the procedural default claimed in the Answer. As stated above,

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petitioner’s Traverse does not appear to be directed at anything germane to his petition in any

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event. The court cannot find cause and prejudice from silence or legal static.

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Nor does the rule of Martinez v. Ryan, 566 U.S. 1 (2012), aid petitioner. The rule is a

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narrow exception to the general procedural default rule that derelictions of counsel do not excuse

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procedural default.

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We consequently read Coleman as containing an exception, allowing
a federal habeas court to find “cause,” thereby excusing a defendant's
procedural default, where (1) the claim of “ineffective assistance of
trial counsel” was a “substantial” claim; (2) the “cause” consisted of
there being “no counsel” or only “ineffective” counsel during the

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Of course, petitioner could not cure his forfeiture default in the state courts by just
ignoring such in the petition for review. Although the California Supreme Court denied the
petition for review without comment on the merits of the primary claims sought to be reviewed,
common sense directs the conclusion that petitioner must accept the unappealed procedural
holdings of the intermediate court and/or that in such a situation, the state supreme court would be
presumed to have included both procedural and substantive grounds as reasons for denial. See
Wilson v Sellers, 138 S.Ct. 1188 (2018) (silent denial by a higher court is presumed to encompass
the reasoned findings of the lower court).
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state collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law
requires that an “ineffective assistance of trial counsel [claim] ... be
raised in an initial-review collateral proceeding.” Martinez, supra, at
––––, 132 S.Ct., at 1318–1319, 1320–1321.

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Trevino v. Thaler, 569 U.S. 413, 423 (2013).

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Petitioner’s problem here is that the primary claims at issue for procedural bar are not

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ineffective assistance of counsel, but rather general, substantive claims. Moreover, petitioner

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does not even have an exhausted ineffective assistance claim. Thus, the primary claims of due

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process violation are defaulted.

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Finally, even if the primary claims were not defaulted, they are not cognizable in federal habeas

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corpus. See below.

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C. None of the Claims Have Merit

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The Supreme Court has not announced that the admission of evidence, claimed to be

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unlawfully prejudicial, violates the Due Process clause.

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Under AEDPA, even clearly erroneous admissions of evidence that
render a trial fundamentally unfair may not permit the grant of
federal habeas corpus relief if not forbidden by “clearly established
Federal law,” as laid out by the Supreme Court. 28 U.S.C. § 2254(d).
In cases where the Supreme Court has not adequately addressed a
claim, this court cannot use its own precedent to find a state court
ruling unreasonable. Musladin, 549 U.S. at 77.

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The Supreme Court has made very few rulings regarding the
admission of evidence as a violation of due process. Although the
Court has been clear that a writ should be issued when constitutional
errors have rendered the trial fundamentally unfair, see Williams,
529 U.S. at 375, 120 S.Ct. 1495, it has not yet made a clear ruling
that admission of irrelevant or overtly prejudicial evidence
constitutes a due process violation sufficient to warrant issuance of
the writ. Absent such “clearly established Federal law,” we cannot
conclude that the state court's ruling was an “unreasonable
application.” Musladin, 549 U.S. at 77, 127 S.Ct. 649. Under the
strict standards of AEDPA, we are therefore without power to issue
the writ on the basis of Holley's additional claims.

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Holley v. Yarborough, 568 F.3d 1091, 1101 fn. 2 (9th Cir. 2009) (emphasis added)

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(noting that if it were free to rule on the issue, the Ninth Circuit would have found a violation of

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due process.)
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See also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008); Alberni v. McDaniel, 458

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F.3d 860, 866 (9th Cir. 2006); Soojian v. Lizarraga, No. 1:16-cv-00254-AWI-SAB-HC, 2018 WL

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3155617 (E.D. Cal. June 25, 2018); Jones v. Spearman, No. 16-cv-03627-JD, 2018 WL 424402,

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at *4 (N.D. Cal. Jan. 16, 2018); Garcia v. Madden, No. EDCV 17-00049-DOC (JDE), 2018 WL

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910184, at *15 (C.D. Cal. Jan. 5, 2018).

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Holley and its progeny did not hold that if the court believes a serious due process

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violation exists, it is free to rule on the issue of admission of prejudicial evidence. “Without

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power to rule” means just that— it does not mean “sometimes has the power to rule and

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sometimes not.” Moreover, the mere characterizing of a prejudicial evidence claim as a

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fundamentally unfair “due process” violation would render the Holley rule useless, i.e., the claim

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of admission of prejudicial evidence would be reviewed on the merits, regardless, every time

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since all due process claims in habeas corpus must rise to the level of fundamental unfairness to

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be actionable. Again, the Ninth Circuit has held otherwise:

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Zapien also argues that the admission of Perez’s statements was such
an egregious violation of California evidentiary law that it
constituted a due process violation. It is not at all clear that there was
a violation of California law, let alone one so fundamentally unfair
that it amounted to a due process violation. In any event, we’ve held
that, “[u]nder AEDPA, even clearly erroneous admissions of
evidence that render a trial fundamentally unfair may not permit the
grant of federal habeas corpus relief if not forbidden by clearly
established [Supreme Court precedent].” Holley v. Yarborough, 568
F.3d 1091, 1101 (9th Cir. 2009) (internal quotation marks omitted).

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Zapien v. Davis, 849 F.3d 787, 794 (9th Cir. 2015). 5
Thus, it does not matter whether the evidence analysis of the Court of Appeal was spot on,

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dubious, or unreasonable. No cognizable federal claim exists. Petitioner could cite Dawson v.

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Delaware, 503 U.S. 159 (1992) for the proposition that overtly prejudicial evidence may be a due

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process violation. However, the difference between Dawson and the instant case, as well as the

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See also Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). The undersigned
follows the Holley/Zapien rule. Finally, Kipp v. Davis, 971 F.3d 939, 956 (9th Cir. 2020), is not
to the contrary as the court in that case found that AEDPA did not apply. It therefore determined
the issue de novo and found that McKinney v. Rees, 993 F.2d 1378, 1381-82, 1385-86 (9th Cir.
1993) (barring improper propensity evidence), stated the applicable rule on propensity evidence.
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cases cited above, is that the Aryan Brotherhood evidence introduced in Dawson was totally

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irrelevant as well as prejudicial. Dawson found the due process violation because of the lack of

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relevance, not simply because it was prejudicial. Petitioner does not contest the relevance of the

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evidence herein—just that it was prejudicial. Relevance makes all the difference as to whether

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one can state a federal claim in habeas involving the admission of prejudicial evidence.

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Moreover, the issue is not just “propensity evidence” versus “due process.” A sea change

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in evidence law has occurred transforming the formerly all encompassing “do not admit”

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propensity evidence, with limited exceptions, see McKinney v. Rees, 993 F.2d 1378 (9th Cir.

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1993), to a nearly no holds barred admission of propensity evidence in sexual assault, domestic

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abuse or pedophile cases. Cal. Evid. Code §§ 1108, 1109; United States v. Lemay, 260 F.3d 1018

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(9th Cir. 2001). 6 While one can question “what changed” in terms of due process, i.e., what was

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once unfair becomes “fair,” legislatures make known the policy of the times, and it is difficult for

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courts from a policy standpoint to tell legislatures “they got it wrong.” At least, a lower court may

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not do so in an AEDPA case without direction by the U.S. Supreme Court. 7

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The unexhausted ineffective assistance of counsel claims (for failing to object to

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admission of the above evidence) follows a different analytical track, but ultimately fail as well.

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The undersigned is unaware of cases which detail how to handle an ineffective assistance

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claim based on primary claims which are not AEDPA cognizable. That is, can counsel be

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ineffective with respect to a claim not recognized by AEDPA. The ineffective assistance claim is

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certainly cognizable per se, and the thrust here is that counsel should have recognized that

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“ordinary” federal law would have precluded the evidence, if counsel had only objected. 8 It is

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The only check on carte blanche admission is whether the prejudice of the prior acts
evidence outweighs the probative value. Cal. Evid. Code § 352; Fed. R. Evid. 403. However, in
practice, the more serious the prior misconduct and the more serious the charged crime,
admission of the evidence will almost always have a greater probative value than prejudice.
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The new way of looking at prior misconduct in sex assault or domestic abuse cases has
not deterred courts from finding error in admitting prior misconduct in “ordinary” crime cases.
See, e.g., United States v. Bailey, 696 F.3d 794 (9th Cir. 2012); United States v. Santini, 656 F.3d
1075 (9th Cir. 2011); United States v. Carpenter, 923 F.3d 1172, 1182 (9th Cir. 2019). See also
Kipp v. Davis, supra.
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To the extent that petitioner’s claim is based on a misapplication of state law, such is not
reviewable here in that the Court of Appeal rejected any such assertion, and that stands as a state
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theoretically possible that a state trial court, upon counsel’s objection, would have rejected

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propensity evidence based on the (theoretical) overwhelming nature of lower federal court law

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despite a lack of authority directly from the Supreme Court.

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The claims require the analysis of the Court of Appeal:

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3. McKinney and Federal Authorities

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Defendant more than once states that he “recognizes our
Supreme Court has found section 1108 to be constitutional, but
presents this pure question of law to preserve it for further review.”
Defendant cites McKinney, supra, 993 F.2d 1378 and other older
cases, in contending that admission of the section 1108 testimony
violated his due process and a fair trial rights. McKinney is often cited
in this context. However, as we have previously observed, a
“[d]efendant’s reliance on McKinney—a case decided before
enactment of the federal rules allowing evidence of uncharged sexual
assaults and child molestation and the enactment of section 1108—
is misplaced. [Citation.] The application of McKinney’s holding in
the context of [uncharged sexual misconduct] evidence has been
repeatedly rejected. [Citations.] The Ninth Circuit and other federal
courts have long since upheld the constitutionality of the federal rules
allowing sexual misconduct evidence to establish propensity to
commit such crimes.” (People v. Holford (2012) 203 Cal.App.4th
155, 183, fn. 19.)
Section 1108 was modeled after rule 413 of the Federal Rules
of Evidence (rule 413, 28 U.S.C.). [Fn. 12 omitted]. (People v.
Falsetta (1999) 21 Cal.4th 903, 912 (Falsetta).) The federal court
cases rejecting due process challenges to rules 413 and 414 [Fn. 13
omitted] are many and we have found no federal cases concluding
that these rules of evidence offend due process. Recently, in United
States v. Schaffer (2d Cir. 2017) 851 F.3d 166, the Second Circuit
noted that under rule 413, the prosecution “may use evidence of prior
sexual assaults precisely to show that a defendant has a pattern or
propensity for committing sexual assault.” (Schaffer, at pp. 177-178,
fn. omitted.) The Schaffer court observed: “While we recognize that
Rule 413 represents an exception to the general ‘ban against
propensity evidence,’ we agree with every other court of appeals that
has addressed this issue and hold that, in light of the safeguards
provided by Rule 403,[Fn. 14 omitted] Rule 413 on its face does not
violate the Due Process Clause.” (Schaffer, at p. 177, fns. omitted, &
fn. 56, citing United States v. Mound (8th Cir. 1998) 149 F.3d 799,
801, United States v. Enjady (10th Cir. 1998) 134 F.3d 1427, 14301433 (Enjady), United States v. LeMay (9th Cir. 2001) 260 F.3d
1018, 1026-1027 (LeMay) & United States v. Julian (7th Cir. 2005)
427 F.3d 471, 487; see also United States v. Castillo (10th Cir. 1998)
140 F.3d 874, 880-881.)
In McKinney, a murder victim’s throat was slit, and the
law determination. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
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medical examiner testified the wounds could have been caused by
almost any kind of knife. (McKinney, supra, 993 F.2d at p. 1381.) A
specific murder weapon was never identified. (Ibid.) The prosecution
introduced evidence that the defendant had a knife collection of
which he was proud and that he scratched on his dormitory closet
door with a knife, “Death is His.” (Id. at p. 1382.) The Ninth Circuit
concluded that this evidence was probative only of the defendant’s
character and its admission violated the prohibition against evidence
of bad character. (Id. at pp. 1384-1385.) It further held that, because
that prohibition is based on the community’s sense of fair play and
decency, the admission of the evidence violated due process. (Ibid.)
However, in LeMay, the Ninth Circuit rejected reliance on
McKinney in a case involving evidence of uncharged acts of child
molestation admitted under rule 414. (LeMay, supra, 260 F.3d at pp.
1026-1027.) The court noted that in McKinney it had held that
propensity evidence “will only sometimes violate the constitutional
right to a fair trial, if it is of no relevance, or if its potential for
prejudice far outweighs what little relevance it might have.
Potentially devastating evidence of little or no relevance would have
to be excluded under Rule 403. Indeed, this is exactly what Rule 403
was designed to do. We therefore conclude that as long as the
protections of Rule 403 remain in place so that district judges retain
the authority to exclude potentially devastating evidence, Rule 414
is constitutional.” (LeMay, at p. 1027.) In light of the LeMay court’s
rejection of McKinney in the context of the admissibility of prior acts
of child molestation to show propensity, defendant’s reliance on
McKinney is clearly misplaced. [Fn. 15 omitted]. We expressly reject
McKinney as grounds upon which to find that section 1108 is
constitutionally invalid on its face and conclude that trial counsel’s
performance was not deficient for failure to rely upon it. (People v.
Cudjo (1993) 6 Cal.4th 585, 616 [failure to object to the admission
of evidence is not ineffective assistance where “there was no sound
legal basis for objection”].)

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California’s decisional law concerning the facial
constitutionality of section 1108 and the federal analogues are settled
and have been settled for some time. We reject the contention as
completely meritless, and thus we reject defendant’s contention that
his trial counsel provided constitutionally ineffective assistance of
counsel.
ECF No. 36-1 at 30-33.
The standards for ineffective assistance of counsel are well set forth in Cullen v.
Pinholster, 563 U.S. 170, 189-190 (2011):
There is no dispute that the clearly established federal law here is
Strickland v. Washington. In Strickland, this Court made clear that
“the purpose of the effective assistance guarantee of the Sixth
Amendment is not to improve the quality of legal representation ...
[but] simply to ensure that criminal defendants receive a fair trial.”
466 U.S., at 689, 104 S.Ct. 2052. Thus, “[t]he benchmark for judging
any claim of ineffectiveness must be whether counsel's conduct so
11

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undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Id., at 686,
104 S.Ct. 2052 (emphasis added). The Court acknowledged that
“[t]here are countless ways to provide effective assistance in any
given case,” and that “[e]ven the best criminal defense attorneys
would not defend a particular client in the same way.” Id., at 689,
104 S.Ct. 2052.
Recognizing the “tempt[ation] for a defendant to second-guess
counsel's assistance after conviction or adverse sentence,” ibid., the
Court established that counsel should be “strongly presumed to have
rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment,” id., at 690, 104
S.Ct. 2052. To overcome that presumption, a defendant must show
that counsel failed to act “reasonabl[y] considering all the
circumstances.” Id., at 688, 104 S.Ct. 2052. The Court cautioned that
“[t]he availability of intrusive post-trial inquiry into attorney
performance or of detailed guidelines for its evaluation would
encourage the proliferation of ineffectiveness challenges.” Id., at
690, 104 S.Ct. 2052.

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The Court also required that defendants prove prejudice. Id., at 691–
692, 104 S.Ct. 2052. “The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Id., at 694,
104 S.Ct. 2052. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Ibid. That requires a
“substantial,” not just “conceivable,” likelihood of a different result.
Richter, supra, at 112, 131 S.Ct., at 791.
Our review of the California Supreme Court's decision is thus
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129
S.Ct. 1411, 1413, 173 L.Ed.2d 251 (2009) (citing Yarborough v.
Gentry, 540 U.S. 1, 5–6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per
curiam)). We take a “highly deferential” look at counsel's
performance, Strickland, supra, at 689, 104 S.Ct. 2052, through the
“deferential lens of § 2254(d),” Mirzayance, supra, at 121, n. 2, 129
S.Ct., at 1419, n. 2. Pinholster must demonstrate that it was
necessarily unreasonable for the California Supreme Court to
conclude: (1) that he had not overcome the strong presumption of
competence; and (2) that he had failed to undermine confidence in
the jury's sentence of death.

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One cannot read the above California appellate court’s discussion of federal law as

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anything but correct and reasonable. The fact that the Ninth Circuit has issues with propensity

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evidence in non-sexual misconduct cases does not permit this court to find that in a sexual

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misconduct case, an objection by trial counsel based on federal due process would have been

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overruled. Even if McKinney is the better rule for all purposes, reasonable jurists can, and have,

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determined otherwise. An objection which would have been overruled, as indicated by the Court
12

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of Appeal, cannot stand as a basis for ineffective assistance of counsel. See Kimmelman v.

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Morrison, 477 U.S. 365, 382 (1986) (petitioner must establish that a motion not made would have

3

had merit.) The propensity evidence ineffective assistance claim should be denied.

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With respect to CSAAS evidence the Court of Appeal found that California law permitted

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such evidence, along with its conclusions that due process was not violated. 9 The undersigned

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need not engage in an analysis of whether the appellate court decision was based on federal, as

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opposed to only state law, as under any standard of review, a due process objection would fail.

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The Ninth Circuit has upheld the use of this evidence against a due process attack in Brodit v.

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Cambra, 350 F.3d 985, 991 (9th Cir. 2003). See also Otero v. Diaz, No. 2:19cv00381 MCE KJN

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Dr. Anthony Urquiza testified as an expert for the prosecution
on the topic of CSAAS. CSAAS consists of five emotional behaviors
that have been observed in children who have experienced sexual
abuse: (1) secrecy; (2) helplessness; (3) entrapment and
accommodation; (4) delayed disclosure; and (5) retraction. (See
People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker).)
Urquiza testified that that CSAAS, established by Roland
Summit in 1983, serves the purpose of educating therapists who are
treating children who have been sexually abused in an effort to teach
them “about the context in which abuse happens, what are the
common characteristics, common behaviors, common things that
abused children -- sexually abused children do, and to dispel any
misperceptions or myths that those therapists may have had about
sexual abuse.” Urquiza testified that CSAAS “is an educational tool
initially designed to educate therapists about common characteristics
of sexual abuse” and “’[i]t is not and should not be used as a
diagnosis of any type.’” On cross-examination, Urquiza
acknowledged that CSAAS starts with the premise that the child has
been sexually abused, and is used to better understand the victim.
Urquiza testified that there are five components of CSAAS.
ECF No. 36-1 at 53.

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According to the jury instruction regarding use of such testimony, the jury is instructed
that it is not evidence that the defendant committed any of the crimes charged against him, but
only whether the conduct of a child “was not inconsistent with the conduct of someone who has
been molested, and in evaluating the believability of the person’s testimony.” Id. at 59. There
might be some merit to petitioner’s argument that the expert’s testimony is to be construed, for
practical purposes, that the asserted child victim is to be believed no matter what problems there
might be with the child’s testimony, prior statements, etc., i.e., there is always a reason why the
problems are not consequential to the prosecution case, and no areas of problematic testimony
exist where the child might be disbelieved.
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P, 2020 WL 7406517 (E.D. Cal. Dec. 17, 2020). If counsel had made a federal due process

2

objection in the trial court, it would have been overruled.

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Again, an objection must be meritorious before it can be considered actionable as

4

ineffective assistance of counsel. The claim with respect to ineffective assistance of counsel for

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failing to object to CSAAS evidence should be denied.

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Conclusion

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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must

8

issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A

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certificate of appealability may issue only “if the applicant has made a substantial showing of the

10

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these

11

findings and recommendations, a substantial showing of the denial of a constitutional right has

12

not been made in this case.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court attach ECF No. 36-1
to these findings and recommendations as Appendix A.

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IT IS FURTHER HEREBY RECOMMENDED that:

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1. Petitioner’s writ for habeas corpus be DISMISSED due to all claims being either

17

procedurally defaulted, and/or without merit, and judgment entered in favor of respondent; and

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2. The District Court decline to issue a certificate of appealability.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

21

after being served with these findings and recommendations, any party may file written

22

objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 16, 2020

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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APPENDIX A

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16

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE,

C080488

Plaintiff and Respondent,

(Super. Ct. No. 13F01371)

v.
MALANJE PHEA,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Timothy
M. Frawley, Judge. Affirmed as modified.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Angelo S.
Edralin, Deputy Attorneys General, for Plaintiff and Respondent.

*

Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts I.B.-I.E.2., I.E.4., III., IV., V., VI., and VII. of
the Discussion.
1

Defendant was found guilty of all counts in a 33-count information. Thirty-one of
the counts charged defendant with sex offenses against one of his daughters and two
other victims, each of whom was 16 years old or younger at the time of the offenses. In
the other two counts defendant was convicted of furnishing a controlled substance to the
daughter. At trial, two additional victims testified to uncharged acts of child molestation
and sexual misconduct pursuant to Evidence Code section 1108. 1 The trial court
sentenced defendant to 46 years four months in prison.
On appeal, defendant asserts that: (1) the trial court abused its discretion in
admitting the evidence of prior sex offenses pursuant to section 1108, and any forfeiture
of that contention constituted ineffective assistance of counsel; (2) instructing the jury
with CALCRIM No. 1191 allowed the jury to infer his guilt based on mere propensity
proved by only a preponderance of the evidence, confusing and misleading the jurors on
the burden of proof and conflicting with the circumstantial evidence instruction, and any
forfeiture of these contentions constituted ineffective assistance of counsel; (3) the trial
court abused its discretion in admitting expert witness evidence of child sexual abuse
accommodation syndrome (CSAAS), and any forfeiture of that contention constituted
ineffective assistance of counsel; (4) the trial court erred in instructing the jury with
CALCRIM No. 1193 because that instruction permitted the jury to use the CSAAS
evidence to evaluate the believability of the victims’ testimony, reducing the
prosecution’s burden of proof; (5) he sustained prejudice as a result of cumulative trial
error; and (6) the trial court failed to exercise its discretion, and abused that discretion, in
imposing consecutive sentences on counts one and two.
In the published portion of this decision (Discussion parts I.A. & I.E.3.) we reject
defendant’s due process contentions and in doing so, we conclude that reliance upon

1

Further undesignated statutory references are to the Evidence Code.
2

McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (McKinney) is misplaced because that
case has no application in the context of section 1108 evidence. We also reject
defendant’s contention that CALCRIM No. 1191 concerning uncharged acts of sexual
misconduct 2 and the circumstantial evidence instructions conflict and reduce the burden
of proof. (Part II. of the Discussion.) Our high court’s reasoning in cases involving a
later version of the uncharged sexual misconduct instruction and instructions pertaining
to section 1101, subdivision (b), compels rejection of defendant’s argument.
Furthermore, the wording of CALCRIM No. 1191 makes it clear that the reasonable
doubt standard applies to the charged offenses.
We vacate the sentences imposed on counts one and two and remand the matter
for resentencing on those counts, at which the trial court shall choose whether to impose
consecutive or concurrent sentences and articulate the reasons for its choices. We also
direct the trial court at resentencing to clearly impose a court operations assessment and a
criminal conviction assessment on all 33 counts. We otherwise affirm.

2

Now CALCRIM No. 1191A.
3

FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case-in-chief
J. Doe 3 (Counts One & Two)4
J. was 32 years old at the time of her trial testimony. R., formerly defendant’s
wife, was J.’s cousin.
J. recalled a time when she was 14 years old when she visited defendant and R. in
Sacramento and defendant took J. and P. to a park and gave them alcohol. Defendant
also made advances at both J. and P. When it was time to leave the park, J. and P. did not
want to go in the house with defendant so they slept in the car in the driveway.
There were also occasions when J. saw defendant in the Bay Area. On one
occasion, J. was at her grandmother’s house in Richmond and defendant was there. J.
woke up and went into the living room where she saw defendant. Defendant passed J. a
letter in which he told her that he had a dream about her. Later that day, defendant
repeatedly called for J. at her grandmother’s house, but J. told her grandmother to tell him
that she was not there. J. was scared, and she called P. and asked her to come over,
which P. did. Later, defendant came to the house and he and P. went to the store
together.
On another occasion, J. was in the ninth grade and she was called into the office at
school. There, she found that there were flowers and balloons for her from defendant. J.

3

At trial, each of the victims was referred to by the last name of Doe. To further protect
the personal privacy interests of the victims and other people involved, we refer to them
by the initial of their first name, except where they share the same first initial with
another witness. We realize that this may present some difficulty to the reader, but on
balance, find that their privacy interests warrant this treatment. (Cal. Rules of Court,
rule 8.90(b).)
4

The information alleged sexual penetration and oral copulation of J., a victim under 16
years of age (Pen. Code, § 289, subd. (i)—count one; § 288a, subd. (b)(2)—count two).
4

threw them away. When J. got home later that day, her mother asked her where the
flowers and balloons were. When J. asked her mother how she knew about them, J.’s
mother responded that defendant “said he wanted to do something nice for you because
you were feeling down.” (Italics omitted.)
On another occasion, still when J. was 14, she visited R. and defendant for the
summer. One day, R. went to work and J. took a shower. After taking a shower, J.,
wearing only a towel, went into a bedroom and closed the door. Defendant entered the
room, started touching J., and tried to take her towel off. J. told defendant to stop, but
defendant reassured her that he was not going to hurt her. Defendant eventually got J.’s
towel off, laid her on the bed, touched her breasts, opened her legs, caressed her vagina,
and performed oral sex on her. Defendant also inserted two fingers in J.’s vagina. He
also attempted to place his penis in J.’s vagina. J. said no. Defendant’s penis pushed
against J.’s vagina “but it wouldn’t go and then [J.] told [defendant] that [she] wasn’t
ready and then he stopped.” Defendant then left the room.
J. acknowledged that she did not disclose the incident to adults or to law
enforcement. She felt like it was a difficult situation, particularly because defendant and
R., who was J.’s cousin, had been together so long. J. felt guilty. J. eventually decided to
disclose what had happened in 2012, after she learned that Ja., defendant’s daughter, had
reported incidents to law enforcement. After that, J. spoke to R., told her what had
happened, and R. told J. that she should contact law enforcement.

5

L. Doe (Counts Three & Four) 5
L. was 25 years old at the time of trial. She testified that defendant dated her
sister, S. Defendant was still married, but he had told S. that he and his wife were
separated.
L. visited S. in August 2005. While they were all in a car together, defendant said
something to S. about a threesome. Defendant asked L. if she would ever have a
threesome with him and S. Later in the day, at S.’s apartment, defendant offered L., who
was 15 years old at the time, a Long Island Iced Tea. Defendant told L. multiple times
that she was sexy. Looking through a catalog, defendant pointed out some lingerie and
told L. that she would look sexy in it. L. was feeling uncomfortable, and she just kept
brushing defendant off.
L. stayed that night in S.’s apartment. Defendant touched L. inappropriately on
more than one occasion that night. On the first occasion, L. was sitting on the couch
under a blanket playing with S.’s nine- or ten-month-old son. 6 Defendant picked up the
baby and, when he did so, he picked up the blanket as well. As defendant lifted the baby
with one hand, he rubbed L.’s vagina over her pajama bottoms with the other hand.
Later, defendant and S. were playing around and locking each other out of the
apartment. At one point, when he locked S. out, defendant approached L. on the couch,
rubbed her vaginal area over her clothing for about a minute, and tried to kiss her.
Defendant said to L., “ ‘We’re doing this. We’re going to do this.’ ” He then went to
unlock the door for S.

5

The information alleged two counts of lewd or lascivious acts on L., a child 15 years of
age, defendant being at least 10 years older than the child (Pen. Code, § 288, subd. (c)(1);
counts three & four).
6

L. testified that, at the time, defendant thought S.’s son was his son. It turned out the
baby was not defendant’s child.
6

Defendant left the apartment, but, after he left, he called L. more than three times
and sent her text messages. L. did not answer the calls. In the text messages, defendant
told L., “ ‘We’re fucking tonight,’ ” and “ ‘Don’t be scared.’ ”
By the time defendant returned to the apartment, in the middle of the night or in
the early morning, L. was asleep on the couch. Defendant knocked, but lightly enough so
that S. would not hear. L. did not do anything, thinking that defendant might just go
away. Defendant knocked harder, and then called S., who let him in. S. and defendant
went into S.’s room, but defendant returned to the living room an hour or two later, after
S. went to sleep. L. was on the couch, pretending to be asleep. Defendant approached
the couch and touched L. under the blanket. Defendant pulled L.’s pajama bottoms
down, tugged on L.’s underwear, ripping them, and put two fingers in her vagina.
Defendant moved his fingers in and out. L. just lay there, not knowing what to do. L.
told defendant not to touch her, but she acknowledged at trial that she did not know if she
said it loudly enough, “or if it was in a joking way. I wasn’t really aggressive telling him
to stop.” She felt embarrassed. After a few minutes, S. came into the room, and
defendant dove onto the floor and pretended that he had just been lying there. Defendant
then got up and went to the patio with S., had a conversation, and then went into the
bathroom. Defendant left the apartment and S. went back to sleep. L. just lay there, not
knowing what to do.
The next morning, L. called her mother to pick her up and told her what had
happened. L. and her mother went to her mother’s house, where her mother called the
police. Deputy Sheriff Gustavus Youngberg came to the house and took a statement
from L. L. told Youngberg that defendant touched her vagina area three times. L.
showed the deputy her phone with the text messages and call log. There were five
missed calls on the phone. Defendant had texted L., “ur fucking tonite. Rite me! Don’t
be scared!” A second text read, “ur fucking tonite. Write me! She is going to sleep.

7

Call.” A third text message was the same as the first text message. The last text message
said, “I’m coming.”
L.’s mother then took L. for a medical examination. She saw Sheridan Miyamoto,
a forensic nurse practitioner who worked at the Child and Adolescent Abuse Resource
and Evaluation Center at U.C. Davis. 7 Miyamoto saw children brought in due to
concerns of physical and sexual abuse or neglect. Miyamoto performed an examination
of L. on August 17, 2005. As she began the examination, Miyamoto noticed that L.’s
underwear was torn. L. said that her sister’s boyfriend had put his hand in her underwear,
and her underwear tore. During the genital examination, an area of L.’s left labia majora
“fluoresced,” indicating the possible presence of a substance that could contain DNA.
After the examination, Miyamoto concluded that the results were consistent with L.’s
description of the alleged assault. Miyamoto noted that, in cases of digital penetration, it
is “not at all uncommon” for there to be no physical injuries. She further noted that,
based on a substance fluorescing, “not knowing what those are, I also mark as something
that is -- potentially contributes and would be consistent.”
Miyamoto collected evidence via swab from the area that fluoresced, labeled it,
and placed it in the crime kit. Ann Murphy, a criminalist at the Sacramento County
Laboratory of Forensic Services, compared the foreign material swab from L.’s crime kit,
which was a partial profile, with a reference sample from defendant and found that the
DNA profiles were consistent. The likelihood of a random individual’s DNA profile
matching the partial profile Murphy analyzed was one in 250 million in the AfricanAmerican population, one in three billion in the Caucasian population, and one in 15
billion in the Hispanic population.

7

Miyamoto was unavailable at the time of trial. Her video-recorded testimony from a
prior proceeding was played for the jury.
8

When Detective Jason Jacobo of the Elk Grove Police Department contacted L. in
2012 about the investigation, she did not want to be involved. Ultimately, L. did talk to
two female criminal investigators from the district attorney’s office.
Ja. Doe (Counts Five through Thirty-Three) 8
Ja. was defendant’s daughter. She was 23 years old when she testified at trial.
When Ja. was nine years old, defendant began to come into her room, which she
shared with her younger sister D., and kiss them both on the mouth. Ja. testified that
defendant would sometimes use his tongue when he kissed her on the mouth and his
kisses could last five minutes. Defendant would also touch Ja. on her vaginal area, under
her clothing, with his hand. Sometimes defendant would carry Ja. into his room when R.
was not there and rub lotion on her without her clothes on. He would apply lotion to Ja.’s
arms, legs, and then “he would move up more in between [her] legs with [her] vagina
area.” Defendant would “use his two fingers and he would rub along the vagina area
slow.” He would also rub Ja.’s breasts. Ja. estimated that this occurred 20 times. The
last time defendant did this, Ja. ran to her room and locked the door.
On one occasion, still when Ja. was nine, defendant was playing with Ja. and D.
and defendant’s penis came out of his boxer shorts. He did not put it back in, but instead
continued to play with the girls.
One day, still when Ja. was nine years old, R. called Ja. where she was staying “in
the Bay Area at [her] nana[’s] house,” and asked Ja. if defendant ever touched her in a
“ ‘wrong way.’ ” Ja. told R. that he did. When R. confronted defendant, he told Ja. to

8

Regarding Ja., the information alleged 11 counts of lewd or lascivious acts on a child
under 14 years of age (Pen. Code, § 288, subd. (a); counts five through fifteen); 16 counts
of lewd or lascivious acts on a child of 14 years of age (counts sixteen through twentythree) and 15 years of age (counts twenty-four through thirty-one), defendant being at
least 10 years older than the child (Pen. Code, § 288, subd. (c)(1)); and two counts of
furnishing a controlled substance (cocaine & ecstasy) to a minor (Health & Saf. Code,
§§ 11353 & 11380, subd. (a); counts thirty-two & thirty-three).
9

stop lying. He also suggested that Ja. had been dreaming. Ja. was scared and feared she
was going to get in trouble. She also did not want her parents to fight. Ja. was brought to
“a children’s place where [she] had to talk to somebody,” and she told that person “that it
didn’t happen . . . .” On cross-examination, Ja. testified that she remembered telling a
social worker that defendant never touched her inappropriately, but testified that she did
so only because she was scared. She did not want her parents to be mad at her.
The next time Ja. remembered something sexual happening with defendant was
when she was 13 years old. She testified that defendant “took [her] virginity from [her].”
R. was at work and defendant told Ja. to come to the room where he was. Defendant had
video surveillance cameras throughout the home, and defendant was looking at a monitor
to see if anyone was coming. Defendant closed the door, pulled down Ja.’s pants, and
tried to put his finger in her “private area,” but it would not fit. Defendant said, “ ‘Let me
see something right quick. Let me check something out.’ ” Defendant told Ja. to lie
down, which she did, and defendant pulled out his penis. Defendant inserted his penis
inside of Ja., and she told him that it hurt. Defendant “kept going and going with it.”
While he was doing it, defendant kept looking at the video monitor. Defendant told Ja.,
“ ‘Just for a few more seconds. Just give me a second, for a few more seconds.’ ”
Defendant then ejaculated onto his hand. Ja. estimated that the incident took 15 minutes.
When it was over, Ja. was bleeding. She pulled up her pants and ran upstairs, wiped
herself, and saw that there was “a lot of blood.” She then heard defendant say, “ ‘Come
on. Let’s go. Let’s go pick up your mom.’ ” When they picked R. up, R. immediately
asked Ja. what was wrong. Ja. could see defendant looking at her in the rearview mirror.
Ja. “just turned back around and looked out the window, continued to look out the
window and didn’t say anything after that.”
On another occasion, when Ja. was still 13 years old, she awoke to defendant
coming into the room she shared with D. Ja. saw defendant put a DVD on the television.
Ja. went back to sleep. When she woke up, she saw that there was pornography playing
10

on the television. By that time, defendant was no longer in the room. Ja. turned the
television off and went back to sleep. Ja. woke up again later, saw that defendant was
sitting on the edge of her bed, and saw the pornography back on the television.
Defendant was rubbing Ja.’s vagina area under her clothing with his hand. Ja. got up, ran
out of the room, and ran into R.’s room. R. said, “ ‘[Ja.], what are you doing in here? Go
to bed.’ ” Ja. did not tell R. what had happened, and instead went back to her room.
Defendant had left her room. The next morning, Ja. told R. what had happened, that she
did not like the way defendant touched her, and that she felt uncomfortable. R. again
confronted defendant with what Ja. had said. Defendant claimed he did not know what
she was talking about, and again suggested that Ja. had been dreaming. Nothing came of
this disclosure either.
Ja. testified that, when she was 13, defendant had her give him oral sex, he gave
her oral sex, and he had vaginal and anal intercourse with her. Defendant also penetrated
Ja.’s vagina using his fingers and using other objects, including what Ja. believed to be a
massager that was kept in her parents’ dresser drawer. He would also kiss her and touch
her breasts. Defendant would ejaculate on various places on Ja.’s body.
Using a Sony camera, defendant would take photographs and videos of Ja. while
she was naked. He would record these images of her vagina and her breasts. Ja. testified:
“He would tell me to open my legs, put my legs back, or he would tell me to put my
hands down at my private, my vagina area, and he would tell me to open up my vagina
area with my hands so he can see the inside of my vagina.” Defendant would also tell Ja.
to play with herself for the video, and to go into the bathroom and record herself.
Sometimes she would protest, but defendant would tell her that she could choose between
recording herself or having sex, and she would choose recording herself. Defendant
would also record sex acts he engaged in with Ja.
Defendant would text Ja. and tell her things like, “ ‘ten minutes come in the
room,’ ” or he would tell Ja.’s siblings to go to bed and tell Ja. to come back downstairs
11

in 20 minutes. When they were alone, defendant would tell Ja. to “make him hard,” by
which he meant that she should give him oral sex, he would tell her to lie down and tell
her, “ ‘We’re going to do this,’ ” or he would tell her, “ ‘Suck me up for a little bit.’ ” It
got to the point that Ja. knew what was going to happen when defendant told Ja. to meet
him someplace. Ja. would just take her clothes off, knowing what was about to happen.
If Ja. told defendant she did not want to do something, he would get mad, take
things away from her, tell her she could not go out, or “just have attitudes if [she] didn’t
do it.” Ja. testified that defendant would give her gifts or tell her that, if she let him have
sex or have oral sex, he would let her go to a friend’s house or go out and do something.
The gifts included necklaces, rings, and new phones. However, if Ja. did not do as
defendant wanted, he would take the items away. When Ja. would come home after
having her hair done, defendant would say, “ ‘You want to get on tonight?’ ” He would
also use sex as a “reward” on her birthday and other special occasions. Defendant told
Ja. that “all fathers do this with their daughters. That’s just their father-daughter
relationship. It’s just how things go.” He also told her that he had “done stuff to [Ja.’s]
cousin and [her] brother,” and “ ‘Yeah, I did that to them. It’s normal, so then it should
be okay for me to do this to you.’ ”
Defendant would also use sex as a punishment. On one occasion, defendant saw
Ja. talking to a boy, which he did not like, and he was mean to Ja. all day. That night,
while everyone else in the house was asleep, defendant had sex with Ja., during which he
slapped her face and asked if she learned her lesson, if she was going to “do that again,”
and if she was sorry. On another occasion, when she did not let defendant have oral sex
with her, he dropped her off at a friend’s house, but immediately retrieved her and told
her that he would not take her back unless she let him perform oral sex on her. Ja. ran
upstairs crying, and defendant choked her. R. heard the commotion and asked what was
going on. When Ja. said defendant had choked her, defendant, again, said she was lying.

12

R. told Ja. that if she was talking back to defendant, she should stop. Later, defendant
took Ja. to S.’s house, and, while S. was not there, he had sex with Ja.
Defendant would also tell Ja. that no one else would make her feel the way he did,
and that he wanted to be the only person in her life making her feel the way he did.
Ja. also remembered an incident when she was 13 when defendant first gave her
ecstasy. Defendant would give her marijuana, alcohol, cocaine, and ecstasy. Ja. testified,
of these substances: “I felt -- my body was tired. At times I would do it just so I
wouldn’t feel the pain just so I wouldn’t feel nothing, and I would be so numb to where
I’m not even in my body. I’m just laying there and just don’t know, like, what’s about to
happen. Just blacking out. Just dropping to my knees and just doped up.”
Ja. would tell defendant that she was going to tell R., to which he responded,
“ ‘Well, you tell her, then she’s not going to believe you,’ or ‘She’s going to beat you
up,’ or ‘You’re going to get in trouble for it.’ ” Ja. wanted to tell R. “[a]ll the time,” but
she did not. She felt tired, she was losing weight, her hair was falling out, and she was
not functioning in school. One day she looked in the mirror and she saw “this doped-up
person that I would see on the streets somewhere or say, ‘Oh, my God, look at that
person. What happened to them? Why are they like that?’ ” She remembered one
occasion when she went upstairs to tell R. what was happening. She went up the stairs
towards the room where R. was, and she heard R. having a conversation with someone.
The subject of the conversation was molestation in families, and Ja. overheard R. say that
she prayed nothing would happen to her family and her daughter. Ja. “just stopped in
front of the door, and . . . went back downstairs.”
Ja. testified that sexual activity occurred every night. However, she also testified
that she thought the sexual activity occurred “more than 30 times” each year. She
responded affirmatively when the prosecutor asked whether the forms of sexual activity
she described, including performing oral sex, receiving oral sex, defendant’s digital
penetration of her vagina, and vaginal intercourse, occurred at least twice each year
13

between the time she was 13 and when she was 17. She also testified that defendant
provided her with cocaine and ecstasy each year when she was 15, 16, and 17.
Defendant’s sexual abuse of Ja. continued until she was 17 years old.
When Ja. was 17, on Christmas Eve, R. was on the phone, and, while she was on
the phone, R. said something like, “ ‘If you don’t tell what you done or somebody done to
you, that’s bad. You’re going to go to hell,’ ” or “if you don’t tell what happened to you,
or if anybody doing anything to you, you’re going to go to hell, you’re going to burn up.”
Ja. thought to herself that she refused to go to hell because of defendant. She felt her
body getting hot, and she went to the bathroom. R. followed Ja. to the bathroom and
asked what was wrong. Ja. told R. that defendant was having sex with her.
Ja. decided to go to the police. R. told Ja., “ ‘If this is really what you want to do,
then I’m here for you.’ ” However, defendant’s mother, brother, and sister told Ja. not to
tell anyone, and that defendant would be killed in prison.
Ja. went to the police. As Ja. got out of the car, defendant called her and said:
“ ‘Don’t tell on me. Don’t say anything. Tell them that you had a boyfriend that you
were with,’ or . . . ‘Tell them that you were, again, dreaming and you thought that was me
and it wasn’t me and whatever.’ ” Ja. got scared, confused, and did not know what to
say. She still wanted to protect defendant because, despite everything he had done, he
was her father. Ja. “didn’t go through with it.” She told the detective that nothing
happened. Again, on cross-examination, Ja. testified that she did not say anything
because she was scared. However, defendant’s sexual abuse of Ja. ended, and R. and the
kids eventually lived apart from him. When she turned 20 years old, Ja. “finally had the
courage and the strength to go tell.”
P. Doe (Section 1108 Witness)
P., J.’s cousin, testified pursuant to section 1108. She was 32 years old at the time
of trial.

14

P. testified that, when she was 13 or 14 years old, she went to J.’s grandmother’s
house because J. called her and asked her to come over. P. went to the store with
defendant, defendant asked for her phone number, and P. gave it to him.
Some time later, perhaps months later, defendant called P. and suggested that they
get together. Defendant suggested that he pick P. up on her way to school. On one
occasion, defendant picked P. up and took her to a house in North Richmond. Defendant
took P. into a room “and was kissing and stuff like that.” Defendant also tried to put his
fingers in P.’s vagina by unzipping her pants and putting his hand down her pants, and he
may have touched her breasts. Defendant tried to take P.’s pants down, but he was not
able to do so. They remained at the house for approximately two hours, and defendant
then took P. to school.
On another occasion, defendant took P. to an abandoned house in Richmond. He
took her into a room and kissed and touched her.
On yet another occasion, when P. was 13, she visited J. and R. P. wanted to take a
shower, but she was holding D., who was a baby at the time, attempting to put D. to
sleep. P. turned on the water, but D. was crying, so P. gave D. to J. and went back to the
bathroom to shower. When she got back to the bathroom, she found defendant in the
shower. P. testified that she did not remember what happened when she opened the
shower curtain, but then testified that she remembered “us kissing and him sucking on
my breasts and then after awhile, D. was still crying so I was like, I need to go and get
your baby because she’s still crying.” Defendant told P. not to leave. P. told defendant
that she would just put D. to sleep and come back, but she did not feel comfortable and so
she did not return. Asked why she did not feel comfortable, P. responded: “it was
becoming too much. Like I wasn’t, like, expecting him to be naked in the bathroom and
all that.” P. admitted that she was “kind of okay with what had happened up to that
point,” but did not want things to go farther.

15

P. also remembered the time, around the same time or perhaps a year later, that
defendant brought her and J. to the park and gave them alcohol. According to P.’s
recollection, she and defendant came back to the house while J. stayed in the park, and P.
went to the bathroom. When P. got out of the bathroom, defendant pulled her into the
garage, placed a piece of cardboard on the floor, laid P. down on it, and, with both of
their pants down, attempted to insert his penis in P.’s vagina. However, it would not go
in. P. testified that she was trying to keep her legs closed and told defendant to stop and
that he was hurting her. R. was in the house at the time. After this experience, P.
attempted to distance herself from defendant and stopped coming around.
P. testified that she did not tell any adults what had happened for a long time
because she was ashamed and she felt as though she “somewhat led it on.” After P.
learned that Ja. had come forward, P. decided she wanted to cooperate. Asked again why
she did not come forward earlier, P. responded: “I don’t know. That’s something I got to
live with for the rest of my life. I should of came forward but I just kind of didn’t want to
deal with it, really. I mean I wanted to tell R.; but we didn’t know how to tell her. Like,
how do you go tell somebody that they married to -- that -- that they are touching and
kissing and feeling and all that stuff? Like, how do you tell somebody that?”
Ra. Doe (Section 1108 Witness)
Ra. testified pursuant to section 1108. She was 27 years old at the time she
testified at trial.
Defendant was Ra.’s uncle. She was uncooperative at trial. Ra. testified that she
did not “remember when [she] was 14,” and that she did not “remember anything.” She
repeatedly testified, “I don’t remember,” “I don’t remember anything,” and “I don’t
remember nothing.” However, she acknowledged that she had told Detective Jacobo that
defendant touched her in a sexual way when she was 14 years old, and that she made
similar statements in preliminary hearing testimony. She testified that Jacobo “put words
in [her] mouth.” She denied that defendant raped her, and then testified that he did not do
16

anything. When the prosecutor asked whether she told Jacobo that defendant touched her
vagina and her breasts under her clothes, Ra. responded, “He told me that’s what his
wife, R., told him that. He kept asking me questions, and I was telling him no; but he
said that’s what they said and I was scared so I don’t know what to say.” When asked if
she made a similar statement at the preliminary hearing, Ra. responded, “That you guys
was asking me, yeah. I said yeah, because I don’t know what to say here. I don’t like
being in this predicament.” Ra. testified, “I don’t want to cooperate.” Ra. also testified
that she did not recall defendant giving her a pill that made her feel blurry and sleepy.
The prosecutor played for the jury recordings of interviews between Detective
Jacobo, another detective, and Ra. When first contacted, she indicated she did not want
to get involved. Ultimately, Ra. told Jacobo that she was 14 years old when “that
occurred” between her and defendant at his house in Elk Grove. Ra. told Jacobo that
defendant told her to go to the bed, and he would come into the room an hour later. Ra.
told Jacobo that defendant did not have sex with her, but he did touch her on her vagina
and on her breasts. Defendant had Ra.’s “pants down a little bit,” and, when he touched
her breasts, he did so under Ra.’s shirt. He would touch her, leave the room, come back,
and touch her again. This pattern repeated “[l]ike three times.” Ra. told defendant to
stop and he responded, “ ‘I can’t,’ ” but then he stopped. Ra. also told Jacobo that
defendant gave her some type of pill that made her feel “blurry” and “sleepy.” Weeks
later, defendant apologized to Ra. and asked her not to tell on him. Three months after
the incident, Ra. told her mother what had happened, and Ra. never talked to defendant
again. Ra. also told Jacobo that she told R. about it. R. tried to fight her, but R. later
changed her attitude. During the interview, Ra. said she did not want to come to court.
Ra. also denied at trial telling Leslie Zapata, a criminal investigator for the district
attorney’s office, that her grandmother, her mother, and her uncle called her and
pressured her not to testify at the preliminary hearing. She testified that she did not recall
telling Zapata that family members had threatened to come to the preliminary hearing to
17

intimidate her. She also did not remember telling Zapata that her mother and
grandmother told Ra. that they believed her, but that she should have kept her mouth shut
and not spoken with police.
Zapata testified that she picked up Ra., an “uncooperative witness,” to transport
her to the preliminary hearing. Zapata stayed with Ra. throughout the day. According to
Zapata, Ra. was very nervous and reluctant. After the lunch break, Ra. vomited in the
restroom. Zapata testified that Ra. stated that she was receiving phone calls from her
mother, her grandmother, and her uncles threatening to attend the preliminary hearing to
intimidate her. Zapata also testified that Ra. stated that her mother and her grandmother
told her that they believed her, but that she should have kept her mouth shut and not
talked with the police. Zapata testified that, after the preliminary hearing, she and her
partner were walking with Ra. out of the courthouse and towards the district attorney’s
office when Ra. said she saw her uncles walking towards them.
Defense Evidence
Detective Jacobo testified that he participated in a search of defendant’s home.
Defendant cooperated with the search. Jacobo testified that there was no relevant
evidence found on any of the electronics seized in the search.
R. testified that she and defendant were married for approximately 16 years. R.
testified that defendant was manipulative and “probably cheated on me the whole
relationship.” R. remembered at one point hearing that Ra. had claimed that defendant
had done something inappropriate with her. This prompted R. to call Ja., who was nine
years old at the time and who was staying at R.’s grandmother’s house, and ask Ja. if
defendant had done anything to her. At first, Ja. said no. As the conversation continued,
Ja. said she did not know or understand, and then she started crying. Then Ja. told R. that
defendant did touch her. R. went to the Bay Area to pick Ja. up, and then she called the
police. R. took Ja. somewhere to talk to someone, and Ja. told the person she spoke with
that it had not happened. R. testified that defendant convinced her that it had not
18

happened. She testified: “I think it was still in the back of my mind, but I don’t think I
wanted to believe that that happened.” R. acknowledged that she continued living with
defendant, and continued leaving the children with him.
R. remembered an occasion when defendant and the children picked her up at
work, and it seemed like something was wrong with Ja. Ja. was very quiet and R. asked
her if everything was okay. Ja. told R. that nothing was wrong.
R. also remembered when, on Christmas Eve in 2009, Ja. told her that defendant
had been molesting her. R. called the police, and, later, took Ja. to the police station. Ja.
went into a room with a detective. Afterward, Ja. did not tell R. anything about what she
told the detective.
R. testified that she moved out with Ja. and D., but acknowledged that, sometime
later, she moved back in with defendant. She testified that she did not have anywhere
else to go. According to R., moving back in with defendant was supposed to be a
temporary arrangement. They ended up living with defendant for approximately one
year. During this time, R. and defendant were essentially roommates, and they slept in
different rooms.
R. recalled hearing a rumor that defendant was having sex with J. By this time, R.
was not with defendant, “so it really didn’t matter.” However, R. went to talk to J. about
it, but “it just kind of went out of control,” and after that, R. and J. did not talk. At some
point, however, J. told R. about an incident that happened with defendant when J. was
younger.
Defendant testified. He claimed that none of the accusations made by Ja., J., P.,
L., and Ra. were true.
On direct examination, defense counsel asked defendant if he recalled a time in
2001 when R. alleged that defendant had molested Ja. and defendant responded that he
did remember her making the accusation. Defense counsel then asked if something had
happened between defendant and Ja. Defendant testified that Ja. had asked if she could
19

go to the park and take D. with her, and defendant agreed. However, later, he looked
toward the park and saw D. but did not see Ja. Defendant went to the park, where he
found Ja. in the bushes with a boy. Defendant testified that Ja. got in trouble for that
incident, suggesting that this was a motive for fabricating an allegation of abuse.
A couple of days later, defendant was in the bathroom shaving when Ja. came in to
take a shower. Ja. said, “ ‘Look, Dad,’ ” and defendant looked over at her. Ja. was
pulling on her pubic hair. On cross-examination, defendant stated that he had “ended up
pulling, see what she was talking about. It was pubic hair.” Defendant testified that,
after that, he and R. got in a big fight, and R. went to the Bay Area. Then defendant
received a call from a detective asking about whether defendant touched his daughter and
he said no. Defendant called Ja. while the detective was still on the line, and, without
disclosing that the detective was on the line, asked Ja. where he put lotion on her when he
applied it. Defendant asked Ja. if he touched her anywhere other than her arms and legs,
and if he touched her “anywhere when you use the bathroom at,” and she said no.
Defendant testified that the detective told him that the case would be closed. This all
occurred when Ja. was nine years old. On cross-examination, defendant confirmed that
he was indeed claiming that he, a suspect in the case, was permitted by the detective to
make this surreptitious three-way call to his nine-year-old daughter. However, after
reviewing the 2001 report of that investigation, defendant acknowledged that he did not
see any reference to this three-way call in the report.
Asked if he ever talked to R. about why she called the police, defendant
responded: “No. She always say things, do things to me knowing that it -- she knew
what to do to me. She now [sic] how I am. She knew how to get back at me everything.
At that time I had nowhere to go. I was the one had nowhere to go. She was the one with
the job and all that. At that time she had -- it was her house so I couldn’t just leave. I
had nowhere to go.”

20

Defendant testified that he had a history of cheating. Defendant began seeing S. in
2003. Defendant recalled that, in 2005, L. said that he touched her. Defendant recalled
one occasion when L. was at S.’s house and was holding the baby. Defendant picked up
the baby, gave him a kiss, and set him back down with L. The next day, S. called
defendant and told him that L. was saying that defendant touched her. Defendant
testified that he did not touch L. inappropriately.
Asked if something happened prior to Christmas Eve 2009 when R. accused him
of molesting Ja., defendant testified that he had caught Ja. lying to him about a male
friend that she was seeing. Defendant told R. about it and Ja. got in trouble. Also,
defendant testified that, on another occasion around that time, he was having sex with a
woman at their home. He heard Ja. yelling, and Ja. came downstairs “to tackle the lady.”
Defendant told Ja. to go back upstairs, and he took the woman home. Ja. told R. about
the incident.
On the car ride back from the Bay Area following the Christmas Eve visit, R.
again accused defendant of molesting Ja. Defendant was angry and he and R. argued.
When they got home, defendant got out of the car, expecting R. to follow and that they
would talk more in the house. However, R. “took off in the car.”
On cross-examination, defendant testified that, when he was interviewed by
police, he told the detective that R. must have fabricated the allegations because he had
moved some of her possessions out of the house, and that she was mad at him because he
was “surviving without her” and he did not want her back. Defendant further
acknowledged that, when the detective told defendant that it was Ja. making the
allegations, he shifted his blame to Ja., stating that she had a “daughter-father crush” on
him. However, he then testified that he did not believe Ja. was to blame for anything.
Defendant next saw R. and the kids on New Year’s. At that time, they all moved
back in with him. However, the house was going into foreclosure, R. got an apartment,
and she and the children moved out. Defendant moved into a new place, and, after a
21

while, R. and the kids moved back in with him. R. lived with defendant until the end of
2010, when she moved to another apartment. The kids split time living with defendant
and R.
Defendant testified that, in 2012, he and R. had various conflicts with each other.
One of these conflicts revolved around financial assistance. Defendant received food
stamps and “Section 8” housing subsidies (42 U.S.C.S. § 1437f; Welf. & Inst. Code,
§ 16517, subd. (c)). The amount defendant received in benefits was increased over what
he would receive personally because Ja., D., and their son were living with defendant.
When Ja. got pregnant, R. “used [Ja.’s] information to get an apartment,” which subjected
defendant to scrutiny over his section 8 housing claims. Defendant underwent an
interview, and he immediately removed all of the children from his section 8 housing
claims. Their son went into the military, and Ja. and D. went to live with R. Defendant
also took D.’s name off of his food stamps account, which made R. angry and she
removed defendant from her medical benefits. Defendant knew that R., Ja., and D. were
receiving benefits, and that they should not also be receiving benefits on his accounts.
Defendant did not want to get into trouble with the government for committing fraud.
After Ja. became pregnant, her college grades began to suffer. Defendant
confronted Ja. about the issue and Ja. got upset with defendant.
At some point, defendant began living with S.G., his new girlfriend. This was
upsetting to R. because defendant had taken the children off of his section 8 housing and
yet “then I let another lady come in with her kid.” In July 2012, defendant was with Ja.’s
boyfriend, when defendant was arrested for driving under the influence. Defendant gave
his cell phone to the boyfriend to take home and give to S.G. However, somehow Ja.
obtained the phone. Defendant testified that there were photos and videos on the phone,
including photos and videos of naked women, which showed that he had been seeing
other women. Defendant believed that Ja. went through his phone because, at some
point, she answered his phone.
22

Defendant acknowledged having heard a rumor that he was seeing J. While
defendant admitted to being flirtatious with J., he denied that he had an affair with her.
In October 2012, police showed up at defendant’s home and searched his entire
house. The police seized all of defendant’s electronics, and defendant provided police
with all of his passwords. Defendant went with the police and was interviewed by Jacobo
for approximately one hour. After the interview, defendant went home.
Defendant testified on cross-examination that R. brainwashed “all three of
[defendant’s] kids.” He testified that he believed that everybody, “Whoever was in this
case,” including S.G., was part of a conspiracy against him. Defendant also testified on
cross-examination that he believed that R. made multiple false allegations of child
molestation against him because of the fights he had with her. When questioned by the
prosecutor why he would continue to stay in the household with a woman who
continuously accused him of molesting his children, despite the risk of being
incarcerated, defendant responded that he stayed for his children. Defendant also
testified that R. sent him threatening text messages. When the prosecutor asked about the
seizure and forensic analysis of defendant’s five phones and whether defendant was able
to find those threatening text messages, defendant responded, “I don’t trust what the
forensic people did. And I think that they didn’t give me my -- all my texts . . . .”
Defendant asserted that, in viewing the forensic extractions from his cell phones, he saw
that the dates had been changed and text messages and logged calls were missing. The
prosecutor asked defendant if the police, too, were in on the conspiracy, to which
defendant responded, “Ask them. I don’t know. I think you in on the conspiracy. I’m
sorry.”
Verdict and Sentencing
The jury found defendant guilty on all 33 counts, and further found true the
allegations that counts one through thirty-one were timely filed.

23

The trial court sentenced defendant to an aggregate determinate term of 46 years
four months, calculated as follows: the upper term of nine years on count thirty-two;
consecutive two years (one-third the midterm) on count thirty-three; consecutive eight
months (one-third the midterm) on counts one through four; consecutive two years (onethird the midterm) on counts five through fifteen; and consecutive eight months (onethird the midterm) on counts sixteen through thirty-one. In choosing the upper term on
count thirty-two, furnishing ecstasy to Ja., the trial court stated that the evidence
demonstrated that there were multiple instances of that crime having been committed,
and that it believed that defendant should be incarcerated for the maximum term
permitted by law.
DISCUSSION
I.

Admission of Section 1108 Evidence
A. Additional Background

In her written in limine motions, the prosecutor sought the admission of evidence
of uncharged sexual offenses committed against P. and Ra. pursuant to section 1108. 9
The prosecutor asserted that, under section 1108, such evidence is admissible to prove
that defendant committed the charged sexual offenses. The prosecution acknowledged
that evidence otherwise admissible pursuant to section 1108 is subject to a section 352
balancing analysis. The trial court allowed the evidence concerning both P. and Ra.
B. Defendant’s Contentions
Defendant asserts that the trial court abused its discretion in admitting evidence of
prior sexual offenses pursuant to section 1108. Defendant asserts that section 1108 is
unconstitutional on its face and as applied because it violates due process. Defendant
does acknowledge that the California Supreme Court has found section 1108 to be

9

In the alternative, the prosecutor sought admission of the evidence pursuant to
section 1101, subdivision (b), a request we need not address here.
24

constitutional, and it has rejected due process challenges to that section, but he
nonetheless asserts his argument “to preserve . . . for further review” his claim that
section 1108 violates federal due process standards. Regarding his as-applied challenge,
defendant asserts that this evidence, which needed only to be established by a
preponderance of the evidence as stated in CALCRIM No. 1191, weakened the burden of
proof and resulted in his conviction based on proof less than proof beyond a reasonable
doubt. Defendant further asserts that this evidence should not have been admitted on
section 352 grounds. Under a separate heading, defendant asserts that his forfeiture of
this issue in the trial court was the result of ineffective assistance of counsel. Even if the
evidence had been properly admissible pursuant to section 1108, defendant asserts that,
had defense counsel objected, the evidence would have been excluded pursuant to 352
because its prejudicial effect substantially outweighed any probative value.
C. Section 1108 and Applicable Principles of Law
“Character evidence, sometimes described as evidence of a propensity or
disposition to engage in a type of conduct, is generally inadmissible to prove a person’s
conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159
(Villatoro), citing § 1101, subd. (a).) However, over twenty years ago, the Legislature
created a specific exception to this rule for cases involving sexual offenses. Section 1108
provides, in pertinent part: “In a criminal action in which the defendant is accused of a
sexual offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible
pursuant to Section 352.” (§ 1108, subd. (a).)
D. Forfeiture
Defendant forfeited his contentions that section 1108 is unconstitutional, on its
face and as applied, because, as defendant candidly concedes, he did not raise these

25

contentions in the trial court. 10 (People v. Miramontes (2010) 189 Cal.App.4th 1085,
1099 [specific objection to § 1108 forfeited by failure to raise in trial court]; People v.
Crabtree (2009) 169 Cal.App.4th 1293, 1314 [appellant forfeited any claims of error as
to § 1108 testimony by failing to make a timely objection in the trial court on the grounds
asserted for the first time on appeal].) Additionally, with regard to defendant’s as-applied
contentions on appeal, defendant neither asserted before the trial court that the evidence
should have been excluded pursuant to section 352 nor that the section 1108 evidence,
coupled with CALCRIM No. 1191, weakened the burden of proof and allowed him to be
convicted on less than proof beyond a reasonable doubt. Defendant asserts that his
“argument[s] [were] not forfeited because trial counsel was ineffective.” (Initial
capitalization omitted.)
E. Ineffective Assistance of Counsel Claim
1. Ineffective Assistance of Counsel General Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced the
defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674,
696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Rogers (2016) 245
Cal.App.4th 1353, 1367.) “ ‘Surmounting Strickland’s high bar is never an easy task.’ ”
(Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642], quoting Padilla
v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].) The reason why

10

Defense counsel did initially object to the admission of the section 1108 testimony
concerning Ra., but then acknowledged “[a]s to 1108, her testifying to the similar
conduct, I don’t believe I have a basis to object to that.” Counsel argued other grounds
for objection (“competency issues, immunity issues” related to pending criminal
charges), which turned out to be based on the misidentification of Ra. and subsequently
rendered moot when the parties identified the correct Ra. Otherwise, as the parties agree,
defense counsel did not object to the admission of the section 1108 evidence.
26

Strickland’s bar is high is because “[a]n ineffective-assistance claim can function as a
way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial
inquiry’ threaten the integrity of the very adversary process the right to counsel is meant
to serve. [Citation.] . . . It is ‘all too tempting’ to ‘second-guess counsel’s assistance
after conviction or adverse sentence.’ ” (Richter, at p. 105.) As we shall explain, trial
counsel’s performance was not deficient and thus defendant has failed to carry his burden
of establishing ineffective assistance of counsel.
2. California Authorities on the Constitutionality of Section 1108
As defendant acknowledges, our high court has rejected the claim he advances
here, that section 1108 is unconstitutional on its face because it violates due process. In
People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our high court was faced with a due
process challenge to section 1108 on the ground that it allows for the admission of
“propensity” evidence and “conclude[d], consistent with prior state and federal case law,
that section 1108 is constitutionally valid.” (Falsetta, at p. 907 [rejecting due process
claim].) Two years before Falsetta, another panel of our court concluded that section
1108 does not violate due process. (People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
These courts reasoned that the discretion afforded trial judges under section 352 to
exclude such evidence when the probative value is outweighed by its prejudicial effect or
other counterweight is “ ‘a safeguard against the use of uncharged sex offenses in cases
where the admission of such evidence could result in a fundamentally unfair trial.’ ”
(Falsetta, at p. 917, quoting Fitch, at p. 183.) “ ‘With this check upon the admission of
evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . .
section 1108 does not violate the due process clause.’ ” (Ibid.) As we will discuss, for
the same reason, federal courts have rejected due process claims related to the federal
evidence counterparts to sections 1108 and 352, and have long allowed, over due process

27

challenges, the use of prior sex crimes and child molestation misconduct to show
propensity.
“Available legislative history indicates section 1108 was intended in sex offense
cases to relax the evidentiary restraints section 1101, subdivision (a),[ 11] imposed, to
assure that the trier of fact would be made aware of the defendant’s other sex offenses in
evaluating the victim’s and the defendant’s credibility. In this regard, section 1108
implicitly abrogates prior decisions . . . indicating that ‘propensity’ evidence is per se
unduly prejudicial to the defense.” (Falsetta, supra, 21 Cal.4th at p. 911.) “ ‘Our elected
Legislature has determined that the policy considerations favoring the exclusion of
evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases
by the policy considerations favoring the admission of such evidence. The Legislature
has determined the need for this evidence is “critical” given the serious and secretive
nature of sex crimes and the often resulting credibility contest at trial.’ ” (Id. at pp. 911912.)
Since Falsetta, the California Supreme Court has reiterated its position that section
1108 does not violate due process (Villatoro, supra, 54 Cal.4th at p. 1160; People v.
Reliford (2003) 29 Cal.4th 1007, 1009), and has expressly adhered to Falsetta (People v.
Loy (2011) 52 Cal.4th 46, 61 (Loy) [rejecting a defendant’s request to reconsider
Falsetta, noting that the defendant provided no good reason to do so]).
Thus, as defendant acknowledges, our high court has clearly ruled on the
contention he advances here. Moreover, the court has signaled no changes on the

11

Section 1101, subdivision (a), is the general prohibition against the use of character
evidence to prove propensity or disposition and provides: “Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.”
28

horizon. The trial court, and this court, are bound by our high court’s decision in
Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto
Equity Sales).) Under these circumstances, defense counsel cannot be said to have
performed deficiently for failing to raise an objection that was without legal basis and
completely meritless. (People v. Cudjo (1993) 6 Cal.4th 585, 616 (Cudjo) [failure to
object to the admission of evidence is not ineffective assistance where “there was no
sound legal basis for objection”].)
3. McKinney and Federal Authorities
Defendant more than once states that he “recognizes our Supreme Court has found
section 1108 to be constitutional, but presents this pure question of law to preserve it for
further review.” Defendant cites McKinney, supra, 993 F.2d 1378 and other older cases,
in contending that admission of the section 1108 testimony violated his due process and a
fair trial rights. McKinney is often cited in this context. However, as we have previously
observed, a “[d]efendant’s reliance on McKinney—a case decided before enactment of
the federal rules allowing evidence of uncharged sexual assaults and child molestation
and the enactment of section 1108—is misplaced. [Citation.] The application of
McKinney’s holding in the context of [uncharged sexual misconduct] evidence has been
repeatedly rejected. [Citations.] The Ninth Circuit and other federal courts have long
since upheld the constitutionality of the federal rules allowing sexual misconduct
evidence to establish propensity to commit such crimes.” (People v. Holford (2012) 203
Cal.App.4th 155, 183, fn. 19.)
Section 1108 was modeled after rule 413 of the Federal Rules of Evidence (rule
413, 28 U.S.C.). 12 (People v. Falsetta (1999) 21 Cal.4th 903, 912 (Falsetta).) The

12

Rule 413(a) provides in pertinent part: “[i]n a criminal case in which a defendant is
accused of a sexual assault, the court may admit evidence that the defendant committed
29

federal court cases rejecting due process challenges to rules 413 and 414 13 are many and
we have found no federal cases concluding that these rules of evidence offend due
process. Recently, in United States v. Schaffer (2d Cir. 2017) 851 F.3d 166, the Second
Circuit noted that under rule 413, the prosecution “may use evidence of prior sexual
assaults precisely to show that a defendant has a pattern or propensity for committing
sexual assault.” (Schaffer, at pp. 177-178, fn. omitted.) The Schaffer court observed:
“While we recognize that Rule 413 represents an exception to the general ‘ban against
propensity evidence,’ we agree with every other court of appeals that has addressed this
issue and hold that, in light of the safeguards provided by Rule 403,[ 14] Rule 413 on its
face does not violate the Due Process Clause.” (Schaffer, at p. 177, fns. omitted, & fn.
56, citing United States v. Mound (8th Cir. 1998) 149 F.3d 799, 801, United States v.
Enjady (10th Cir. 1998) 134 F.3d 1427, 1430-1433 (Enjady), United States v. LeMay (9th
Cir. 2001) 260 F.3d 1018, 1026-1027 (LeMay) & United States v. Julian (7th Cir. 2005)
427 F.3d 471, 487; see also United States v. Castillo (10th Cir. 1998) 140 F.3d 874, 880881.)
In McKinney, a murder victim’s throat was slit, and the medical examiner testified
the wounds could have been caused by almost any kind of knife. (McKinney, supra, 993

any other sexual assault. The evidence may be considered on any matter to which it is
relevant.”
13

Federal Rules of Evidence, rule 414 (rule 414), provides, in pertinent part: “In a
criminal case in which a defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other child molestation. The evidence may be
considered on any matter to which it is relevant.” (Rule 414(a), 28 U.S.C., boldface
omitted.)
14

Federal Rules of Evidence, rule 403 (rule 403, 28 U.S.C.), is the federal counterpart to
section 352 and provides: “The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
30

F.2d at p. 1381.) A specific murder weapon was never identified. (Ibid.) The
prosecution introduced evidence that the defendant had a knife collection of which he
was proud and that he scratched on his dormitory closet door with a knife, “Death is His.”
(Id. at p. 1382.) The Ninth Circuit concluded that this evidence was probative only of the
defendant’s character and its admission violated the prohibition against evidence of bad
character. (Id. at pp. 1384-1385.) It further held that, because that prohibition is based
on the community’s sense of fair play and decency, the admission of the evidence
violated due process. (Ibid.)
However, in LeMay, the Ninth Circuit rejected reliance on McKinney in a case
involving evidence of uncharged acts of child molestation admitted under rule 414.
(LeMay, supra, 260 F.3d at pp. 1026-1027.) The court noted that in McKinney it had
held that propensity evidence “will only sometimes violate the constitutional right to a
fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little
relevance it might have. Potentially devastating evidence of little or no relevance would
have to be excluded under Rule 403. Indeed, this is exactly what Rule 403 was designed
to do. We therefore conclude that as long as the protections of Rule 403 remain in place
so that district judges retain the authority to exclude potentially devastating evidence,
Rule 414 is constitutional.” (LeMay, at p. 1027.) In light of the LeMay court’s rejection
of McKinney in the context of the admissibility of prior acts of child molestation to show
propensity, defendant’s reliance on McKinney is clearly misplaced. 15 We expressly

15

Appellate counsel here would apparently have us ignore the federal authorities,
including LeMay, because none of the federal cases published before this appeal were
mentioned in defendant’s briefing. We remind counsel of our high court’s admonition
that “[a]ttorneys are officers of the court and have an ethical obligation to advise the
court of legal authority that is directly contrary to a claim being pressed.” (In re Reno
(2012) 55 Cal.4th 428, 510, citing Batt v. City and County of San Francisco (2007) 155
Cal.App.4th 65, 82, fn. 9.) As the court in Reno noted, “Rule 5-200 of the Rules of
Professional Conduct addresses the issue and provides that, ‘[i]n presenting a matter to a
31

reject McKinney as grounds upon which to find that section 1108 is constitutionally
invalid on its face and conclude that trial counsel’s performance was not deficient for
failure to rely upon it. (People v. Cudjo (1993) 6 Cal.4th 585, 616 [failure to object to the
admission of evidence is not ineffective assistance where “there was no sound legal basis
for objection”].)
California’s decisional law concerning the facial constitutionality of section 1108
and the federal analogues are settled and have been settled for some time. We reject the
contention as completely meritless, and thus we reject defendant’s contention that his
trial counsel provided constitutionally ineffective assistance of counsel.
4. Constitutionality of Section 1108 as Applied
Defendant asserts that, had counsel objected to the admission of the evidence, the
trial court would have engaged in a thorough analysis pursuant to section 352 and
excluded the prior molestation evidence. 16 Defendant also asserts, as part of his as-

tribunal, a member: [¶] (A) Shall employ . . . such means only as are consistent with
truth; [and] [¶] (B) Shall not seek to mislead the judge . . . by an artifice or false
statement of fact or law . . . .’ ” (In re Reno, at p. 510.) Relying on the Ninth Circuit’s
decision in McKinney to advance and preserve the contention that section 1108 is facially
unconstitutional, appellate counsel here failed to cite pertinent and contrary federal
authorities even though he was obligated to do so.
16

The record does not indicate that the trial court conducted an express section 352
weighing analysis in deciding to admit the subject evidence. We note that reviewing
courts “ ‘are willing to infer an implicit weighing by the trial court on the basis of record
indications well short of an express statement.’ ” (Villatoro, supra, 54 Cal.4th at
p. 1168.) We also note that section 1108, “expressly refers to section 352.” (Villatoro, at
p. 1168.) Further, the prosecutor in moving for the admission of this evidence in her
written in limine motions specifically raised the fact that evidence otherwise admissible
pursuant to section 1108 is subject to a section 352 balancing analysis. Whether or not
we should presume that the trial court indeed engaged in the required weighing analysis
(see Villatoro, at p. 1168 [presuming that the court conducted the requisite weighing
analysis based on language of § 1108 and trial court’s reference to a key case which
involved a § 352 analysis]), as we shall discuss, defendant’s trial counsel’s performance
was not deficient for failing to make an objection on section 352 grounds.
32

applied challenge, that section 1108 evidence, coupled with CALCRIM No. 1191, diluted
the burden of proof and allowed him to be convicted on the charged offenses on lesser
proof than proof beyond a reasonable doubt.
a. Section 352 Contention
Section 1108 expressly permits trial courts to exclude evidence of other sex crimes
under section 352. (Falsetta, supra, 21 Cal.4th at p. 916.) Under section 352, “The court
in its discretion may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.” (Italics added.) The Falsetta court provided a non-exclusive list of factors for
courts to consider in conducting a section 352 analysis relative to proposed section 1108
evidence, including: “its nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other sex offenses, or excluding
irrelevant though inflammatory details surrounding the offense.” (Falsetta, at p. 917.)
Some of these factors are the considerations expressly set forth in section 352 and others
are factors relevant to those considerations.
(1) Probative Value
“ ‘In enacting . . . section 1108, the Legislature decided evidence of uncharged
sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed
admissible without regard to the limitations of . . . section 1101.’ [Citation.] Or, as
another court put it, ‘[t]he charged and uncharged crimes need not be sufficiently similar
that evidence of the latter would be admissible under . . . section 1101, otherwise . . .
section 1108 would serve no purpose. It is enough the charged and uncharged offenses
33

are sex offenses as defined in section 1108.’ ” (Loy, supra, 52 Cal.4th at p. 63, italics
added.)
Defendant argues that had the trial court engaged in a closely reasoned weighing
process after being prompted to do so by the section 352 objection trial counsel failed to
make, the trial court would have found that “the prior crime was so similar to the charged
offense as to have the highest degree of prejudic[e] attached to it” and thus the evidence
should have been excluded as more prejudicial than probative. We partially agree with
defendant; the uncharged conduct was very similar to the charged conduct. But
defendant is mistaken about how courts should consider this circumstance. While
similarity is not required, it is a circumstance that cuts in favor of admissibility. The
more similar the uncharged events are to the charged offenses, the greater the probative
value is of that evidence. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 [one
factor to consider in a § 1108 case is “whether the propensity evidence has probative
value, e.g., whether the uncharged conduct is similar enough to the charged behavior to
tend to show the defendant did in fact commit the charged offense”].) The similarity of
the conduct here greatly enhanced the probative value of the uncharged conduct evidence
to be weighed against the section 352 counterweights.
Defendant notes that his defense as to the charged victims and the section 1108
victims was that they all were lying and they conspired with his ex-wife to fabricate the
allegations. He complains that the section 1108 evidence was “used to buttress the
credibility of the charged victims.” But again, defendant is mistaken as to how this
circumstance should be considered. Credibility is precisely why the Legislature enacted
section 1108, so “the trier of fact would be made aware of the defendant’s other sex
offenses in evaluating the victim’s and defendant’s credibility” in deciding the
“ ‘credibility contest’ ” such cases present. (Falsetta, supra, 21 Cal.4th at p. 911; accord,
Villatoro, supra, 54 Cal.4th at p. 1164 [legislative history noted “ ‘evidence that a
particular defendant has such a propensity is especially probative and should be
34

considered by the trier of fact when determining the credibility of a victim’s
testimony’ ”].) Similarly, “[i]n passing Rule 413, Congress considered ‘[k]nowledge that
the defendant has committed rapes on other occasions [to be] critical in assessing the
relative plausibility of [sexual assault] claims and accurately deciding cases that would
otherwise become unresolvable swearing matches.’ ” (United States v. Schaffer, supra,
851 F.3d at p. 178, fn. omitted.) Given the similarity, the uncharged evidence here was
highly probative of the victims’ testimony on the charged offenses.
Regarding the degree of certainty of the commission of the uncharged
molestations, uncertainty can detract from the probative value of the evidence. Here,
only the evidence concerning Ra. involved any uncertainty. As noted, she repeatedly
testified that she did not remember defendant’s prior conduct. However, the evidence
established that she was intentionally uncooperative because she had been pressured and
intimidated by family. Moreover, a recording of her prior statements in which she
described the molestations and the provision of pills was played for the jury. Even if we
were to consider any uncertainty that developed as to the commission of defendant’s
misconduct relative to Ra. because of her lack of cooperation, we conclude that
uncertainty did not detract from the probative value of the evidence.
(2) Danger of Undue Consumption of Time
The probative value was not substantially outweighed by the probability that
admission of the evidence would necessitate an undue consumption of time. The
prosecution presented its first witness on Thursday, August 13, 2015, and defendant, the
last witness at trial, finished testifying on Monday, August 24, concluding a total of five
days of trial testimony. Eleven witnesses testified for the prosecution and three for the
defense. Ra., the first witness to testify for the prosecution, was on the stand for no more
than one hour five minutes, which included the playing of her recorded interview with

35

Detective Jacobo. Ra.’s testimony spans 27 pages in the reporter’s transcript. 17 P. also
testified on the first day of trial. Her testimony lasted no more than 53 minutes. Her
testimony spans 37 pages in the reporter’s transcript. Thus, the testimony of both of
these witnesses does not constitute the “avalanche of uncharged evidence” described by
defendant. “Conceivably a case could arise in which the time consumed trying the
uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the
defendant.” (People v. Frazier (2001) 89 Cal.App.4th 30, 42 [uncharged prior
misconduct evidence consisting of 182 pages of reporter’s transcript, 27 percent of the
total trial transcript, was not an undue consumption of time].) This is not such a case.
At the time the trial court granted the prosecution’s request that P.’s and Ra.’s
testimonies be admitted pursuant to section 1108, the trial court may not have known
with precision the amount of time their testimony would involve. However, based on the
prosecutor’s offer of proof as to both section 1108 victims, Ra.’s preliminary hearing
testimony, Jacobo’s testimony at the preliminary hearing concerning his interview with
Ra., and the recording of his interview with Ra. which was also introduced into evidence
at the preliminary hearing, the trial court could make an estimate and conclude that,
whatever amount of time their testimony would take, it would not be undue and it would
not take more time than the evidence related to the charged offenses. Thus, under these
circumstances and based on the proposed nature of their testimony, we conclude that the
probative value of the section 1108 witnesses’s testimony was not substantially
outweighed by a substantial danger that its admission would necessitate undue
consumption of time.

17

Relevant transcripts of her interviews with Jacobo occupy 27 pages in the clerk’s
transcript.
36

(3) Danger of Undue Prejudice
“ ‘ “[T]he prejudice which exclusion of evidence under . . . section 352 is designed
to avoid is not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or
damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.”
The “prejudice” referred to in . . . section 352 applies to evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual and which has very little
effect on the issues.’ ” ’ ” (People v. Holford, supra, 203 Cal.App.4th at p. 167
(Holford), quoting People v. Karis (1988) 46 Cal.3d 612, 638.) The danger of undue
prejudice must be “substantial” and the evidence will not be excluded unless that
“ ‘substantial danger’ ” “ ‘substantially’ ” outweighs the probative value of the evidence.
(Holford, at p. 167 [noting that our high court has emphasized the word “substantial” in §
352 and thus “[e]vidence is not inadmissible under section 352 unless the probative value
is ‘substantially’ outweighed by the probability of a ‘substantial danger’ of undue
prejudice or other statutory counterweights”].)
Prejudice can result when the uncharged conduct is inflammatory compared to the
charged conduct. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-738 (Harris)
[concluding that the uncharged act evidence was “inflammatory in the extreme”].) Here,
the section 1108 evidence was not inflammatory as far as child molestation allegations go
and it was certainly no more inflammatory than evidence related to the charged offenses.
“This circumstance decreased the potential for prejudice.” (People v. Ewoldt (1994) 7
Cal.4th 380, 405 (Ewoldt).) Indeed, the charged offenses defendant committed against
Ja., his biological daughter, were far more inflammatory given the duration of the abuse,
the nature of the abuse, and the father-daughter relationship.
Remoteness can both detract from probative value and raise concerns of undue
prejudice. The probative value of the evidence to show propensity might be low if there
is a significant lapse of time between the uncharged prior misconduct and the charged
37

offense. There might be prejudice related to defendant’s ability to defend against the
uncharged conduct evidence if there is a significant lapse of time and witnesses or
evidence are no longer available. However, the uncharged acts committed against Ra.
were no more remote in time than the earlier of the charged offenses, and the uncharged
acts against P. were roughly contemporaneous with the charged acts committed against J.
The circumstance that the events underlying the uncharged molestations was roughly
around the same time as the charged molestations enhances the probative value of that
evidence to show propensity to commit the charged offenses. There was no gap in time
during which the defendant led a blameless life. (See People v. Branch (2001) 91
Cal.App.4th 274, 285 [“In theory, a substantial gap between the prior offenses and the
charged offenses means that it is less likely that the defendant had the propensity to
commit the charged offenses,” although “significant similarities between the prior and the
charged offenses may ‘balance[] out the remoteness’ ”; “remarkably similar” prior
offense properly admitted despite 30-year gap between prior and charged offenses]; see
also Harris, supra, 60 Cal.App.4th at pp. 738-739 [23-year gap between prior offense and
charged offenses, during which the defendant allegedly led an “unblemished life,” was “a
long time” and the remoteness of the prior offense “weighs sharply in favor of
exclusion”].) Nor did remoteness make it more burdensome for defendant to defend
against the uncharged offenses (see generally Falsetta, supra, 21 Cal.4th at p. 917),
particularly because he was on notice of the prosecution’s intent to present the section
1108 evidence long before trial and his defense against the charged and uncharged acts
was precisely the same: all of his accusers were lying as part of a conspiracy against him.
The uncharged acts did not result in criminal prosecutions or convictions, a
circumstance which could give rise to the danger that the jury might have been inclined
to punish defendant for those offenses, even if it did not consider him guilty of the
charged offenses, thus increasing the danger of prejudice. (Ewoldt, supra, 7 Cal.4th at
p. 405.) However, in light of the strong probative value of the evidence here, and the
38

absence of any other significant factors weighing against the admission of the evidence,
this consideration alone was not enough to warrant exclusion under section 352,
particularly in light of the presumption that section 1108 evidence is admissible based on
its “uniquely probative” character. (See Loy, supra, 52 Cal.4th at p. 62; People v. Britt
(2002) 104 Cal.App.4th 500, 505-506.)
(4) Danger of Confusing and Misleading the Jury
The uncharged acts were also not likely to confuse the issues or mislead the jury.
The proposed evidence itself was not confusing, and it was abundantly clear that
defendant was not charged with any acts related to P. or Ra. There was no reason to
believe that the proposed testimony would distract the jurors from their main inquiry.
And given the nature of the evidence the jury heard, we conclude that it did not.
(5) Section 352 Conclusion
Based on the information the trial court knew at the time it determined that P.’s
and Ra.’s testimony would be admitted pursuant to section 1108, we conclude that there
is virtually no possibility that, had defense counsel made a section 352 objection to this
evidence, the court would have determined that the uniquely probative value of the
evidence (Loy, supra, 52 Cal.4th at p. 63) would be “ ‘substantially’ outweighed by the
probability of a ‘substantial danger’ of undue prejudice or other statutory
counterweights.” (Holford, supra, 203 Cal.App.4th at p. 167.) Under these
circumstances, defendant’s trial counsel cannot be said to have performed deficiently by
not moving to exclude the evidence under section 352, a motion that would have had no
hope for success. (See Cudjo, supra, 6 Cal.4th at p. 616.)
b. CALCRIM No. 1191
Defendant’s arguments implicating CALCRIM No. 1191 in his challenge to the
constitutionality of section 1108 as applied overlap with his separate contention
addressing CALCRIM No. 1191 and the preponderance of the evidence standard for
considering uncharged acts, which we discuss in part II. of the Discussion, post. As we
39

shall discuss, most of defendant’s arguments have been repeatedly rejected as to the
modern versions of the section 1108 instructions. As to the one argument he makes that
has apparently not been expressly addressed in a published case relative to CALCRIM
No. 1191, we shall reject that argument as meritless. Therefore, defense counsel cannot
be deemed to have performed deficiently for failing to raise unmeritorious objections.
(See Cudjo, supra, 6 Cal.4th at p. 616.)
II. CALCRIM No. 1191
A. Additional Background
The trial court instructed the jury with CALCRIM No. 1191 as follows: “The
People presented evidence that the defendant committed crimes of sexual assault upon
minors, namely [Ra.] and [P.], which were not charged in this case. The sexual assault
crimes against [Ra.] and [P.] are defined for you in Instruction 1112. [¶] You may
consider this evidence only if the People have proved by a preponderance of the evidence
that the defendant in fact committed the uncharged offense. Proof by a preponderance of
the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact
is proved by a preponderance of the evidence if you conclude that it is more likely than
not that the fact is true. [¶] If the People have not met this burden of proof, you must
disregard this evidence entirely. [¶] If you decide that the defendant committed the
uncharged offense, you may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit sexual offenses and based on that decision,
also conclude that the defendant was likely to commit the offenses as charged here. If
you conclude that the defendant committed the uncharged offense, that conclusion is only
one factor to consider along with all the other evidence. It is not sufficient by itself to

40

prove that the defendant is guilty of the charged offenses. The People must still prove the
charge beyond a reasonable doubt.” 18
The prosecutor discussed the propensity evidence in her closing argument, stating,
for example, “If you conclude that more likely than not those crimes occurred, you can
use that as propensity evidence when you are evaluating the charged crimes. In other
words, you can conclude that this defendant is disposed or inclined to commit sexual
offenses and, therefore, that he was more likely to have committed the crimes for which
he’s charged.” After detailing points from Ra.’s and P.’s testimony, the prosecutor
stated, “So based on Ra.’s prior statements and P.’s testimony, you can conclude that the
defendant has a propensity to commit sexual offenses, and you can build that into your
evaluation of the current charges.”
B. Defendant’s Contentions
Defendant asserts that CALCRIM No. 1191 is flawed because it allows jurors to
infer guilt based merely on the commission of other crimes established only by a
preponderance of the evidence, effectively reducing the burden of proof and violating his
due process rights. More specifically, defendant asserts: “The instruction tell[s] jurors

18

When the trial court read CALCRIM No. 1191 to the jury, twice it interposed the
word “others” for the term “the charged offenses.” However, the trial court corrected
itself as it finished reading the instruction to the jury, and the written jury instructions, as
corrected in handwriting, accurately reflect the correct instruction. Additionally, in
reading the instruction to the jury, it appears that the trial court omitted the last sentence
reading, “The People must still prove the charge beyond a reasonable doubt.” However,
the written jury instructions included this sentence. “We of course presume ‘that jurors
understand and follow the court’s instructions.’ ” (People v. Wilson (2008) 44 Cal.4th
758, 803.) “This presumption includes the written instructions.” (Ibid.) “ ‘To the extent
a discrepancy exists between the written and oral versions of jury instructions, the written
instructions provided to the jury will control.’ ” (People v. Mills (2010) 48 Cal.4th 158,
201.) Because the jury was given the correctly worded instruction in written form, and
because, on appeal, we give precedence to the written instructions (ibid.), we disregard
the error in the oral reading which was not raised by either party.
41

that they may ignore the general presumption of innocence and infer guilt based, not on
their evaluation of the evidence of the present offense, but upon their finding of another
sexual offense by a lower standard of proof.” Defendant emphasizes that, while the
instruction does state that jurors may not find a defendant guilty based only on uncharged
offenses, it neither reiterates the presumption of innocence nor “counter[s] the effective
presumption of guilt permitted by the language of the instruction.” Defendant further
asserts that CALCRIM No. 1191 is confusing, internally inconsistent and inconsistent
with the instruction on circumstantial evidence. He concedes that the California Supreme
Court has approved of a substantially similar instruction and that this court is bound by
our high court’s precedent, but again states that he is raising the issue to preserve it for
federal review. 19 While defendant acknowledges that trial counsel did not object to

19

We note that federal district courts are required to “make a preliminary finding that a
jury could reasonably find by a preponderance of the evidence that the defendant
committed the [uncharged sexual offense] and that it constituted an ‘offense of sexual
assault’ for purposes of Rule 413.” (United States v. Dillon (5th Cir. 2008) 532 F.3d 379,
387, citing United States v. Guidry (5th Cir. 2006) 456 F.3d 493, 501, 503, fn. 5; Enjady,
supra, 134 F.3d at p. 1433; Johnson v. Elk Lake School Dist. (3d Cir. 2002) 283 F.3d
138, 152-155; see also Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 6 [noting that “[p]roof
of prior bad acts, where it is permitted, requires only a preponderance of the evidence,
rather than proof beyond a reasonable doubt as in a criminal trial”].) Similarly, evidence
proffered pursuant to rule 414, must be sufficient to support a finding by a preponderance
of the evidence that the defendant committed the subject acts. (United States v. McHorse
(10th Cir. 1999) 179 F.3d 889, 899 [discussing the admission of such evidence based on a
rule 403 balancing].) A number of the federal circuits do not appear to require that the
district courts instruct jurors that before they consider such evidence, they must find that
the prosecution established the uncharged acts by a preponderance of the evidence, or by
any particular standard, but instead these district courts only instruct the jurors as to the
purposes for which the evidence may be used. (E.g., 9th Cir. Crim. Jury Instns. (2010)
Instn. No. 2.12 <http://www3.ce9.uscourts.gov/jury-instructions/node/328> [as of
Nov. 28, 2018], archived at <https://perma.cc/SC2K-AYGN> [“You are about to hear
evidence that the defendant [may have committed] [was convicted of] a similar offense of
[sexual assault] [child molestation]. [¶] You may use this evidence to decide whether the
defendant committed the act charged in the indictment. You may not convict the
defendant simply because he [may have committed] [was convicted of] other unlawful
42

CALCRIM No. 1191, he asserts that, because the issue affects his substantial rights, he
may raise this issue for first time on appeal.
C. Forfeiture
“ ‘Generally, a party may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’ ” (People v. Hudson (2006) 38
Cal.4th 1002, 1011-1012.) As defendant asserts, however, we may review his contention
concerning an instruction given “if the substantial rights of the defendant were affected
thereby.” (Pen. Code, § 1259.) “ ‘Ascertaining whether claimed instructional error
affected the substantial rights of the defendant necessarily requires an examination of the
merits of the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.’ ” (People v. Ramos (2008) 163 Cal.App.4th
1082, 1087 (Ramos).) We next consider the merits and reject defendant’s contentions.
D. Analysis
Our high court has held that CALJIC No. 2.50.01, the predecessor to CALCRIM
No. 1191, is a correct statement of the law. (People v. Villatoro (2012) 54 Cal.4th 1152,
1160, citing People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford) [requiring
§ 1108 evidence be proved by a preponderance of the evidence does not reduce the
prosecution’s burden of proof as to the charged offenses].) For the purpose of evaluating
acts. You may give this evidence such weight as you think it should receive or no
weight. [¶] [You may not use this evidence, however, to decide whether the defendant
[insert improper purpose, e.g., made a statement in this case or destroyed evidence in this
case].]”; id., Instn. No. 2.13 <http://www3.ce9.uscourts.gov/jury-instructions/node/323>
[as of Nov. 28, 2018], archived at <https://perma.cc/2DL4-XV42> [limited purpose of
evidence].) However, in the Eighth Circuit, courts do instruct the jury that they may
consider the uncharged sexual misconduct only if the jurors unanimously find that the
evidence “is more likely true than not true.” (8th Cir. Crim. Jury Instns. (2017) Instn.
No. 2.08A, p. 41 <http://www.juryinstructions.ca8.uscourts.gov/Criminal-JuryInstructions-2017.pdf> [as of Nov. 28, 2018], archived at <https://perma.cc/SGL7BARZ>.)
43

defendant’s claims, there is no material difference between CALCRIM No. 1191 and its
predecessor CALJIC No. 2.50.01. (People v. Cromp (2007) 153 Cal.App.4th 476, 480;
People v. Schnabel (2007) 150 Cal.App.4th 83, 87.) Thus, relying on Reliford, the
Courts of Appeal for the Second District and this district have concluded that CALCRIM
No. 1191 is also correct statement of the law and does not reduce the prosecution’s
burden of proof. (People v. Anderson (2012) 208 Cal.App.4th 851, 895-898; Cromp, at
p. 479; Schnabel, at p. 87.) Defendant’s arguments here concerning CALCRIM
No. 1191—purported reduction of the burden of proof, the instruction allows jurors to
find a defendant guilty solely based on prior uncharged acts, and that the instruction is
confusing and misleading because it employs a different standard of proof for the prior
sexual offense findings than for the jury’s ultimate determination of guilt—are all
foreclosed by our high court’s analysis and conclusions in Reliford. (Reliford, at
pp. 1013-1016.) As this court noted in Schnabel, “[w]e are in no position to reconsider
the Supreme Court’s holding in Reliford [citation], and by analogy to Reliford, we reject
defendant’s argument regarding the jury instruction on use of his prior sex offenses.”
(Schnabel, at p. 87, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
However, defendant makes one argument not expressly addressed by our high
court in Reliford and not addressed in any case published since Reliford. Defendant
contends that the asserted confusion engendered by CALCRIM No. 1191 was
compounded by CALCRIM No. 224, the instruction on circumstantial evidence.
Defendant focuses on the first paragraph in CALCRIM No. 224, which reads in pertinent
part: “Before you may rely on circumstantial evidence to conclude that a fact necessary
to find the defendant guilty has been proved, you must be convinced that the People have

44

proved each fact essential to that conclusion beyond a reasonable doubt.” 20 Defendant
asserts that CALCRIM No. 1191 contradicts CALCRIM No. 224 because the former tells
the jurors that, if they conclude that the prosecution established by a preponderance of
the evidence that defendant committed the prior sexual offenses, the jurors may conclude
from that evidence that defendant was likely to commit the charged offenses. CALCRIM
No. 224 addressing circumstantial evidence, on the other hand, tells the jurors that each
fact essential to a conclusion of guilt must be proved beyond a reasonable doubt. We
reject defendant’s contention for three reasons. First, in advancing this argument,
defendant relies on a case that predated Reliford and addressed an earlier, flawed version
of the section 1108 instruction. Second, the reasoning in Reliford concerning section
1108 evidence and subsequent cases from our high court concerning section 1108 and
section 1101, subdivision (b), evidence compels rejection of defendant’s claim. Third,

20

It is not clear why the trial court gave CALCRIM No. 224, which should not be used
when the circumstantial evidence is incidental to and corroborative of direct evidence.
(People v. Malbrough (1961) 55 Cal.2d 249, 250-251; People v. Shea (1995) 39
Cal.App.4th 1257, 1270-1271 [noting that the CALJIC predecessor to CALCRIM
No. 224 should not have been given in a sexual assault case based on the testimony of the
victim and the defendant on the issue of consent-no consent]; see also People v.
Thongvilay (1998) 62 Cal.App.4th 71, 86-87 [circumstantial evidence instruction not
required where the prosecution was based on witness testimony and the defendant’s
admissions]; Judicial Council of Cal., Crim. Jury Instns. (2018) Bench Notes to
CALCRIM No. 224, p. 52.) The instant prosecution was a direct evidence case as to
defendant’s conduct; any circumstantial evidence of defendant’s conduct was
corroborative of the direct evidence presented by the testimony of the victims.
Nevertheless, because the evidence at issue here was circumstantial evidence of
defendant’s propensity and a propensity is not only circumstantial evidence defendant
may have committed the charged crime (Falsetta, supra, 21 Cal.4th at p. 915; People v.
Karis (1988) 46 Cal.3d 612, 636), but also has some bearing on the requisite intent and/or
mental state, it would have been appropriate to give CALCRIM No. 225. That
instruction pertains to circumstantial evidence used to prove the requisite intent or mental
state and contains the same language as that in CALCRIM No. 224 upon which
defendant focuses. Defendant makes no argument about the use of CALCRIM No. 224
instead of 225 and thus we have no occasion to further discuss it.
45

the wording of CALCRIM No. 1191 clearly tells juries that even if they find defendant
committed the uncharged sexual misconduct, the reasonable doubt standard still applies
to the charged offenses.
Defendant relies on People v. Frazier (2001) 89 Cal.App.4th 30 (Frazier), a case
decided nearly two years before Reliford, in contending that the current section 1108 and
circumstantial evidence instructions are in conflict. The problem with defendant’s
position is that Frazier involved a prior version of the section 1108 instruction. That
instruction, an earlier version of CALJIC No. 2.50.01, told juries that “ ‘[i]f you find the
defendant committed a prior sexual offense, you may but are not required to infer that the
defendant had a disposition to commit sexual offenses. If you find the defendant had this
disposition, you may, but are not required to infer that he was likely to and did commit
the crimes of which he is accused.’ ” (Frazier, at p. 34.) Also, the instruction did not
include the cautionary instruction added in a later version of CALJIC No. 2.50.01, which
stated: “ ‘However, if you find by a preponderance of the evidence that the defendant
committed prior sexual offenses, that is not sufficient by itself to prove beyond a
reasonable doubt that he committed the charged crimes.’ ” (Frazier, at pp. 34-35, fn.
omitted.) The Frazier court held that the instruction was constitutionally infirm because
it told jurors they could convict the defendant of the charged offenses based solely on
their determination he had committed prior sexual offenses. (Id. at p. 35.) The court
reasoned that the “and did commit” language told jurors that “proof of prior sexual
offenses is enough to prove guilt of the current offenses” (id. at p. 36, fn. omitted) and no
instruction countered or made up for the message that jurors could convict solely based
on a determination that the defendant committed the prior offenses (id. at p. 35). The
court then went on to address the People’s contention that defects in an instruction can be
viewed as harmless when cured by other instructions. (Id. at p. 36.) On this point, the
court reasoned that the combination of the preponderance of the evidence standard to
determine whether the defendant had committed the prior offenses and the circumstantial
46

evidence instruction, which told the jury each fact supporting an inference essential to
establish guilt must be proven beyond a reasonable doubt, added to the confusion. (Id. at
pp. 36-37.) “If the jury believed the propensity evidence was essential to establish
defendant’s guilt, then [the circumstantial evidence instruction] was in direct conflict
with [the preponderance of the evidence instruction].” (Id. at p. 37, fn. omitted.) The
confusion that results from “attempting to apply the [trial] court’s instructions ‘as a
whole,’ ” the court reasoned, would tempt juries “to take the path of least resistance
which leads directly from evidence of the defendant’s disposition to a guilty verdict.”
(Ibid.) Based on all of these reasons, the court concluded the older version of the section
1108 instruction it reviewed denied the defendant due process because it allowed the jury
to convict him without proof beyond a reasonable doubt as to every element of the
charged offenses. (Frazier, at p. 37.) Frazier has not been relied upon in any published
case for its discussion concerning the section 1108 and circumstantial evidence
instructions.
CALCRIM No. 1191 does not suffer from the same shortcomings as the section
1108 instruction analyzed in Frazier. Those shortcomings were corrected in later
versions of CALJIC No. 2.50.01 and do not appear in CALCRIM No. 1191. The “and
did commit” language has long since been eliminated. (See People v. James (2000) 81
Cal.App.4th 1343, 1348, fn. 8 [suggesting that the “ ‘and did commit’ ” language be
omitted from CALJIC instruction].)
Furthermore, despite the fact that the revised CALJIC No. 2.50.01 instruction in
Reliford included the “and did commit” language (Reliford, supra, 29 Cal.4th at p. 1012),
the court nevertheless approved of the instruction. The revised instruction the Reliford
court reviewed instructed that if jurors found by a preponderance of the evidence that the
defendant committed the uncharged offenses, that finding was not sufficient by itself to
prove beyond a reasonable doubt that the defendant committed the charged crimes. (Id.
at p. 1013.) “By telling jurors that evidence of prior offenses is insufficient to prove
47

defendant’s guilt of the charged offenses beyond a reasonable doubt, jurors necessarily
understand that they must consider all the other evidence before convicting defendant.”
(Id. at p. 1015.) 21
CALCRIM No. 1191 includes similar language in addition to other important
admonitions. In addressing when and how juries may consider evidence of prior acts of
sexual misconduct under section 1108, CALCRIM No. 1191 tells jurors: (1) they may
not even consider the evidence unless it is proved by a preponderance of the evidence; (2)
if they decide that standard is met, they “may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit sexual offenses”; (3)
based on that decision, they may conclude that the defendant was likely to commit the
charged offenses (not that he did commit the charged offenses); (4) the determination the
defendant committed the prior misconduct “is only one factor to consider along with all
the other evidence”; (5) the determination the defendant committed the prior acts is “not
sufficient by itself to prove that the defendant is guilty of” the charged offenses; and (6)
“[t]he People must still prove” the charge “beyond a reasonable doubt.” (Italics added.)
Consistent with Reliford, CALCRIM No. 1191 cautions jurors that the propensity
inference is not sufficient to prove the charged offenses; it also does not include the “and
did commit” language the Frazier court found so problematic.
Moreover, our high court’s discussion in Reliford concerning the circumstantial
evidence instruction convinces us that defendant’s position lacks merit. In sanctioning
the preponderance of the evidence standard for considering section 1108 evidence, the
court in Reliford actually relied upon the fact that the jury had been given instructions on

21

Later, in Loy, another case reviewing a section 1108 instruction that included the “and
did commit” language, our high court observed that, while “[i]t is no doubt useful to
admonish the jury specifically that evidence of the prior sexual offense alone is not
sufficient to convict,” it is not critical. (People v. Loy (2011) 52 Cal.4th 46, 74 (Loy).)
48

circumstantial evidence and the burden of proof regarding the charged offenses.
“Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence
standard for anything other than the preliminary determination whether defendant
committed a prior sexual offense . . . . The instructions instead explained that, in all other
respects, the People had the burden of proving defendant guilty ‘beyond a reasonable
doubt.’ [Citations.] . . . In addition, the jury was told that circumstantial evidence could
support a finding of guilt of the charged offenses only if the proved circumstances could
not be reconciled with any other rational conclusion [citation]—which is merely another
way of restating the reasonable-doubt standard. [Citation.] The jury thus would have
understood that a conviction that relied on inferences to be drawn from defendant’s prior
offense would have to be proved beyond a reasonable doubt.” (Reliford, supra, 29
Cal.4th at p. 1016.) Thus, it is apparent our high court saw no conflict between the
section 1108 instruction and the circumstantial evidence instruction.
In Loy, supra, 52 Cal.4th 46, our high court further discussed circumstantial
evidence in the context of approving a section 1108 evidence instruction. The court
observed that the earlier version of CALJIC No. 2.50.01 under consideration there,
“merely told the jury it could ‘infer’ from defendant’s prior sexual crimes that he
committed the charged crime. It did not say such an inference itself constituted proof
beyond a reasonable doubt. The jury was also instructed that ‘an inference is a deduction
of fact that can logically and reasonably be drawn from another fact or group of facts
established by the evidence.’ [Citation.] But a logical deduction is not the same as proof
beyond a reasonable doubt. No reasonable jury would assume that this inference, i.e.,
this logical deduction, substituted for proof beyond a reasonable doubt. The instructions
given ‘provide only that an inference of guilt may be drawn from prior offenses that have
been proved by a preponderance of evidence. They do not suggest that an inference so
drawn is sufficient for a finding of guilt.’ [Citation.] The jury still had to find that the

49

facts of the charged crime had been proved beyond a reasonable doubt.” (Loy, at p. 75.)
The same could be said for CALCRIM No. 1191.
Our high court’s discussion of the circumstantial evidence instruction in Reliford
and circumstantial evidence in general in Loy is consistent with the court’s more recent
discussion specific to the circumstantial evidence instruction and the preponderance
standard as it relates to section 1101, subdivision (b), uncharged misconduct evidence. 22
Our high court has explained that the beyond a reasonable doubt standard of proof
applicable to circumstantial evidence generally and the preponderance of the evidence
standard applicable to other crimes evidence “are reconciled by the different purposes for
which the evidence is used. When evidence of uncharged misconduct is admitted for the
purpose of establishing identity or intent, we have explained that the crimes are mere
‘evidentiary facts.’ [Citation.] The jury cannot consider them at all unless they find them
proven by a preponderance of the evidence. ‘If the jury finds by a preponderance of the
evidence that defendant committed the other crimes, the evidence is clearly relevant and
may therefore be considered. [Citations.]’ [Citation.] If the jury finds the facts
sufficiently proven for consideration, it must still decide whether the facts are sufficient,
taken with all the other evidence, to prove the defendant’s guilt beyond a reasonable
doubt.” (People v. Virgil (2011) 51 Cal.4th 1210, 1259-1260 (Virgil), citing People v.
Medina (1995) 11 Cal.4th 694, 763 & People v. Foster (2010) 50 Cal.4th 1301, 13471348 (Foster).) In Virgil, Foster, and Medina, the uncharged misconduct evidence was
admitted to prove identity. (Virgil, at p. 1258; Foster, at pp. 1346-1348; Medina, at pp.
747-748.) Identity is an ultimate fact, as are the elements of the crime which must be

22

Section 1101, subdivision (b), provides prior misconduct may be admitted for a
noncharacter purpose such as “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith
believe that the victim consented.”
50

proved beyond a reasonable doubt. (People v. Thompson (1980) 27 Cal.3d 303, 315,
fn. 13.) Propensity is considered an intermediate fact. (Id. at p. 317, fn. 17.) An
intermediate fact is a fact from which the existence of an ultimate fact may be drawn.
(Id. at p. 315.) Unlike ultimate facts, the prosecution is under no obligation to prove
intermediate facts to establish the charged offenses. We see no reason why the reasoning
from Virgil, Foster, and Medina concerning the section 1101, subdivision (b), instruction
pertaining to the ultimate fact of the identity of the perpetrator should not apply to section
1108 evidence admitted to show the intermediate fact of propensity, a fact the
prosecution is not required to prove to establish the charged offenses.
Lastly, the final sentence in CALCRIM No. 1191 tells jurors, “[t]he People must
still prove” the charge “beyond a reasonable doubt.” (Italics added.) Thus, the jurors are
effectively admonished that, even if they find defendant committed the uncharged sexual
misconduct, the reasonable doubt standard “still” applies to the charged offenses. 23
We conclude that the jurors could readily understand the distinction drawn, and
the differing burdens of proof attached to CALCRIM Nos. 224 and 1191. We further
conclude that it is not reasonably likely a jury would conclude that the lower standard of
proof applicable to the uncharged offenses would apply to the proof of the charged
offenses. (Reliford, supra, 29 Cal.4th at pp. 1012-1016.)
To the extent that defendant’s contentions are not foreclosed by binding precedent
from our high court, we conclude that they lack merit.

23

We may also consider the argument of counsel in determining the effect on a jury of
purported confusion or ambiguity in jury instructions. We note the prosecutor said
nothing that would cause the jury to convict of the charged offenses based solely on the
propensity evidence or to convict him of the charged offenses based on the
preponderance of the evidence standard.
51

III. Child Sexual Abuse Accommodation Syndrome Evidence
A. Additional Background
Dr. Anthony Urquiza testified as an expert for the prosecution on the topic of
CSAAS. CSAAS consists of five emotional behaviors that have been observed in
children who have experienced sexual abuse: (1) secrecy; (2) helplessness;
(3) entrapment and accommodation; (4) delayed disclosure; and (5) retraction.
(See People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker).)
Urquiza testified that that CSAAS, established by Roland Summit in 1983, serves
the purpose of educating therapists who are treating children who have been sexually
abused in an effort to teach them “about the context in which abuse happens, what are the
common characteristics, common behaviors, common things that abused children -sexually abused children do, and to dispel any misperceptions or myths that those
therapists may have had about sexual abuse.” Urquiza testified that CSAAS “is an
educational tool initially designed to educate therapists about common characteristics of
sexual abuse” and “[i]t is not and should not be used as a diagnosis of any type.” On
cross-examination, Urquiza acknowledged that CSAAS starts with the premise that the
child has been sexually abused, and is used to better understand the victim. Urquiza
testified that there are five components of CSAAS.
The first component, secrecy, addresses why a child would keep sexual abuse a
secret. Among the ways someone may coerce a sexually abused child to keep the abuse
secret are overt threats, intimidation, and affection, in which the perpetrator may provide
the victim with “special attention, gifts, favors, affection, make them feel really good and
wanted, sometimes maybe even make them feel loved.” Perpetrators may make
statements to dissuade the victims from disclosing the abuse, such as indicating that
disclosure could lead to breaking up the family, the child would be sent to foster care, and
the child would not be believed. Urquiza testified that abusers sexually abuse victims
while others are in the house “all the time.” He testified: “That’s part of what sexual
52

abuse is about, keeping the secret, not allowing other people to know what’s going on.
And other family members, mom, siblings, usually don’t know what goes on.”
The second component is helplessness. Because sexual abusers of children are
often in a preexisting, ongoing relationship with the child, the abuser has power and
control over the child, and there is “really nothing you can do.” In such circumstances, it
is not reasonable to expect the victims to initiate self-protective behavior.
The third component is entrapment and accommodation. Entrapment, according
to Urquiza, essentially refers to the fact that the victim is “stuck” in the situation; the
victim cannot tell anyone, cannot do anything about the fact that they are going to be
abused again, and are helpless. Additionally, Urquiza testified that there is “lots of guilt
involved in being sexually abused.” He continued: “We know that in a perpetratorvictim relationship, the person who’s responsible is the perpetrator. But that’s not clear
in the mind of the victim when they’re being abused. They think maybe there’s
something that they did that contributed to the abuse or they should have done something.
So they often get confused about guilt and responsibility.” Victims have to try to learn
how to cope with the circumstances. Among the coping mechanisms, Urquiza discussed
dissociation.
The fourth component is delayed and unconvincing disclosure. According to
Urquiza, because of the factors at work, it is reasonable for there to be a lengthy delay in
reporting instances of sexual abuse. Urquiza testified that most victims do not disclose
for months or years, and delayed disclosure is pretty common. Further, because some
children may make an initial disclosure, and, if the response is supportive, make
successively more detailed disclosures, the disclosure may seem unconvincing because
there are many versions of the disclosure.
The final component of CSAAS is retraction. According to Urquiza, 20 to 25
percent of children who have been sexually abused and disclose the abuse retract the
allegations. Among the factors that can contribute to retraction include pressure exerted
53

on the victim, affection for or closeness to the perpetrator, and awareness that the
perpetrator will face negative consequences as a result of the disclosure.
On cross-examination, Urquiza testified that, while rare, false allegations of child
sex abuse do happen. He testified that such false allegations occur in a range of one to
six percent of cases.
In her closing argument, defense counsel asserted that Urquiza’s testimony was
“pretty much inapplicable when we’re talking about false accusations. And he said that
himself. He said the center [sic] he discusses doesn’t apply to cases of false accusations.”
The prosecutor, in her rebuttal closing argument, also mentioned Urquiza’s
testimony, specifically in the context of describing factors that increase the likelihood
that a victim will recant.
B. Defendant’s Contentions
Defendant asserts that the trial court abused its discretion in admitting CSAAS
evidence which, according to defendant, was irrelevant and unduly prejudicial in
violation of his right to due process and a fair trial. Defendant asserts that the behaviors
allegedly indicative of CSAAS are equally consistent with individuals making false
accusations and can easily be misconstrued as corroboration of victim claims. Defendant
asserts that “CSAAS testimony lacks foundation, is misleading, involves an undue
consumption of time, and misleads and confuses the jury.” According to defendant, no
witness had recanted, and if delayed reporting was not a misconception held by the jury,
there was no basis for the introduction of CSAAS evidence. Defendant also asserts, more
broadly, that the reason that CSAAS testimony was once warranted no longer exists, as it
is now common knowledge that children recant, delay in reporting, and do not report.
Defendant asserts that CSAAS testimony amounts to “pseudoscience” designed to secure
convictions in that it merely bolsters the credibility of child victims. Defendant further
asserts that other jurisdictions have found CSAAS evidence inadmissible, and that

54

CSAAS evidence does not satisfy the Kelly/Frye test for admissibility. 24 However,
defendant does recognize that California courts have routinely admitted CSAAS
evidence.
C. Forfeiture
Ordinarily, the failure to object to the admission of evidence, including expert
testimony, forfeits a claim on appeal that the evidence was improperly admitted. (§ 353,
subd. (a); People v. Stevens (2015) 62 Cal.4th 325, 333.) Defendant acknowledges that
he did not object to the admission of the CSAAS evidence in the trial court, thus
forfeiting his contention on appeal. (See People v. Dykes (2009) 46 Cal.4th 731, 756
[“numerous decisions by this court have established the general rule that trial counsel’s
failure to object to claimed evidentiary error on the same ground asserted on appeal
results in a forfeiture of the issue on appeal”].) Under a separate heading, defendant
asserts that, on this basis too, he was denied the constitutionally effective assistance of
counsel.
D. Ineffective Assistance of Counsel
In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our high court approved
of the decisions of Courts of Appeal that had held that CSAAS testimony is admissible
for some purposes. (Id. at p. 1300.) McAlpin was followed by People v. Brown (2004)
33 Cal.4th 892, which upheld the use of expert testimony concerning battered women’s
syndrome and which expressly did so based on similar reasoning to that in McAlpin.
(Brown, at pp. 905-907.) It is well-settled that CSAAS evidence is admissible for the
limited purpose it was admitted for in this case. (McAlpin, at pp. 1300-1301.) We are
bound by our high court’s reasoning in these cases. (See Auto Equity Sales, supra, 57
Cal.2d 450; see also People v. Perez (2010) 182 Cal.App.4th 231, 245 (Perez).)

24

People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F.
1013.
55

While CSAAS testimony is inadmissible to prove that a molestation occurred, it is
nevertheless admissible “ ‘to rehabilitate [the molestation victim’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. Sandoval
(2008) 164 Cal.App.4th 994, 1001, quoting McAlpin, supra, 53 Cal.3d at pp. 1300-1301.)
CSAAS evidence has been held admissible “ ‘ “to disabuse jurors of commonly held
misconceptions about child sexual abuse, and to explain the emotional antecedents of
abused children’s seemingly self-impeaching behavior.” ’ ” (Sandoval, at p. 1002,
quoting McAlpin, at p. 1301.) “ ‘For instance, where a child delays a significant period of
time before reporting an incident or pattern of abuse, an expert could testify that such
delayed reporting is not inconsistent with the secretive environment often created by an
abuser who occupies a position of trust. Where an alleged victim recants his [or her]
story in whole or in part, a psychologist could testify on the basis of past research that
such behavior is not an uncommon response for an abused child who is seeking to
remove himself or herself from the pressure created by police investigations and
subsequent court proceedings. In the typical criminal case . . . , it is the People’s burden
to identify the myth or misconception the evidence is designed to rebut.’ ” (Sandoval, at
p. 1002, quoting Bowker, supra, 203 Cal.App.3d at p. 394.)
“Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the
prosecution to expressly state on the record the evidence which is inconsistent with the
finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to
the paradoxical behavior, including a delay in reporting a molestation.” (People v. Patino
(1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) Inconsistencies in the victim’s
statements may also support the use of CSAAS evidence. (Perez, supra, 182 Cal.App.4th
at p. 245.) Additionally, “[a]dmission of evidence such as CSAAS is not error merely
because it was introduced as part of the prosecution’s case-in-chief rather than in rebuttal.

56

The testimony is pertinent and admissible if an issue has been raised as to the victim’s
credibility.” (Patino, at p. 1745.)
“[T]he decision of a trial court to admit expert testimony ‘will not be disturbed on
appeal unless a manifest abuse of discretion is shown.’ ” (McAlpin, supra, 53 Cal.3d at
p. 1299.)
Defendant concedes that “California courts have generally admitted CSAAS
evidence to ‘dispel myths’ concerning the behavior of child molestation victims.”
However, defendant asserts that CSAAS evidence does not meet the legal requirements
for the admissibility of scientific evidence and should not have been admitted at his trial.
As stated ante, we are bound by our high court’s reasoning in cases such as McAlpin,
supra, 53 Cal.3d 1289, concluding that CSAAS evidence is admissible for some
purposes. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.) Defendant’s contention
that the myths no longer exist is not supported by any evidence in the record whatsoever.
Thus, his arguments that CSAAS testimony was once warranted but the underlying
reason for such testimony no longer exists, and that it is now “common knowledge” that
children recant, delay in reporting, and do not report are insufficient to counter binding
precedent from our high court. Similarly, in the face of binding precedent from our high
court, the fact that other jurisdictions may exclude CSAAS evidence does not affect our
determination.
Moreover, the purposes for which CSAAS evidence may be properly admitted
were very much at issue in this case. Here, the defense raised in its opening statement
Ja.’s early inconsistent statements about whether defendant was molesting her, telling R.
that he was and then telling law enforcement that he was not. Also in its opening
statement, the defense emphasized that the witnesses had “given inconsistent statements.”
The victims’ substantial delay in reporting the abuse (with the exception of L.) and their
inconsistent statements were at issue and raised throughout trial.

57

As for defendant’s Kelly/Frye challenge, that contention has been rejected by
California courts. (People v. Housley (1992) 6 Cal.App.4th 947, 954-956 (Housley);
Bowker, supra, 203 Cal.App.3d at pp. 391-394.) The Kelly/Frye test does not prohibit
the use of CSAAS evidence in the manner it was employed in this case. (People v.
Harlan (1990) 222 Cal.App.3d 439, 448-449.)
The trial court instructed the jury with CALCRIM No. 1193, 25 stating in relevant
part: “Dr. Urquiza’s testimony about child sexual abuse accommodation syndrome is not
evidence that the defendant committed any of the crimes charged against him. [¶] You
may consider this evidence only in deciding whether or not the conduct of [J., L., Ja.,
Ra.,] and/or [P.] was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of that person’s testimony.” 26 “We of
course presume ‘that jurors understand and follow the court’s instructions.’ ” (People v.
Wilson, supra, 44 Cal.4th at p. 803 (Wilson).)
The admission of CSAAS evidence did not render defendant’s trial fundamentally
unfair in violation of due process. (Patino, supra, 26 Cal.App.4th at p. 1747.) Since the
CSAAS testimony was properly admitted under California law and did not violate
defendant’s due process rights, trial counsel’s performance cannot be said to be deficient
for failing to object on those grounds. (Cudjo, supra, 6 Cal.4th at p. 616.) 27

25

We discuss CALCRIM No. 1193 further in part IV. of the Discussion, post.

26

The trial court gave the jury a similar instruction immediately prior to Urquiza’s
testimony.
27

Although defendant does not cite section 352 in his argument concerning CSAAS, he
does assert that CSAAS testimony, among other things, “involves an undue consumption
of time, and misleads and confuses the jury.” Contrary to defendant’s contentions, this
evidence did not necessitate an undue consumption of time or mislead or confuse the
jury. Urquiza testified for just over two hours. Urquiza made very clear on crossexamination that he was only testifying about CSAAS generally, and was not offering
any opinion about defendant, the alleged victims, or whether the allegations were true. In
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IV. CALCRIM No. 1193
A. Additional Background
Defense counsel did not object to CALCRIM No. 1193, concerning CSAAS, at
the jury instruction conference or at any other time.
B. Defendant’s Contentions
Defendant asserts on appeal that CALCRIM No. 1193 impermissibly allowed the
jury to use the CSAAS evidence to evaluate the believability of the victims’ testimony.
Defendant asserts that, if CSAAS is properly admissible, it is only for the limited purpose
of determining whether the alleged victim’s reactions were not inconsistent with
molestation. He asserts that CALCRIM No. 1193 improperly instructs the jury that it
may use this evidence “to corroborate the claims of abuse.” This, he argues, reduced the
prosecution’s burden of proof in violation of his federal and state constitutional rights to
due process and a fair trial. 28 Defendant emphasizes that the predecessor to CALCRIM
No. 1193, CALJIC No. 10.64, did not include language instructing the jury that it could
consider CSAAS evidence to determine the victims’ credibility. Defendant asserts that,
like his contention concerning CALCRIM No. 1191, he may assert this argument

any event, defendant forfeited any section 352 objection to the CSAAS evidence by
failing to raise it in the trial court. (People v. Valdez (2012) 55 Cal.4th 82, 138.)
Furthermore, given that defendant does not actually even raise section 352 in reference to
the CSAAS evidence, he apparently does not claim that his trial counsel was
constitutionally ineffective for failing to make an objection to that evidence on section
352 grounds.
28

Defendant also asserts, in cursory fashion, that “ ‘[e]qual protection’ requires that
persons similarly situated receive equal treatment.” However, he otherwise does not
develop this argument, cite supporting authority, identify similarly situated groups or
individuals, suggest how he has been treated differently, or even mention the concept of
equal protection again in his briefing. Any equal protection claim has been forfeited.
(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [appellant forfeits any
point not supported by reasoned argument and citations to authority].)
59

notwithstanding the absence of an objection to the instruction in the trial court because
the instruction violated his substantial rights. (Pen. Code, § 1259.) 29
C. Analysis
As with defendant’s contention concerning CALCRIM No. 1191, defendant did
not object to this instruction in the trial court. For the same reasons set forth in part II.C.
of the Discussion, ante, we shall address the merits of defendant’s contentions. (See Pen.
Code, § 1259; Ramos, supra, 163 Cal.App.4th at p. 1087.)
“In assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the jury was
misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.)
CALCRIM No. 1193, as given, was explicit in stating that Urquiza’s testimony “is
not evidence that the defendant committed any of the crimes charged against him.” It
further delineated the only permissible uses for the testimony, which were to determine
whether the victims’ conduct was not inconsistent with the conduct of someone who has
been molested, and to evaluate the believability of their testimony. This provided a clear
and correct statement of the law. (See McAlpin, supra, 53 Cal.3d at p. 1300.)
Contrary to defendant’s contention, a jury may rely on CSAAS evidence to
evaluate a child witness’s credibility; CSAAS evidence is admissible to rehabilitate a
child victim’s credibility when the defendant raises the possibility that the victim’s
behavior—such as failure to report, delays in reporting, or recanting—is inconsistent with
actually having been abused. (McAlpin, supra, 53 Cal.3d at p. 1300.) Our high court has
expressly stated that CSAAS evidence, used appropriately and as intended, may assist the
trier of fact, “by giving the jurors information they need[] to objectively evaluate” the

29

Here, defendant also purports to rely on Penal Code section 1469. However, that
section applies to appeals in misdemeanor and infraction cases, not felony cases such as
this.
60

credibility of alleged victims. (McAlpin, at p. 1302.) Under the appropriate
circumstances, CSAAS evidence is “properly admitted to rehabilitate [a child victim]’s
credibility and to explain the pressures that sometimes cause molestation victims to
falsely recant their claims of abuse.” (Housley, supra, 6 Cal.App.4th at p. 956.)
CALCRIM No. 1193 instructs the jury on this permissible use of CSAAS evidence.
We disagree with defendant’s contention that CALCRIM No. 1193 erroneously
instructs the jury it may use the CSAAS evidence to “corroborate” claims of abuse.
CALCRIM No. 1193 does no such thing. Instead, it makes clear that CSAAS testimony
“is not evidence that the defendant committed any of the crimes charged against him.”
A reasonable juror would understand CALCRIM No. 1193 to mean that the jury
could use Urquiza’s testimony to conclude that the victims’ behavior does not mean that
they lied when they claimed, belatedly and/or inconsistently, that they were abused. The
jury also would understand that it could not use Urquiza’s testimony to conclude that any
of the victims were, in fact, molested. “The CSAAS evidence simply neutralizes the
victim’s apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror
who believes [an expert]’s testimony will find both that [the victim]’s apparently selfimpeaching behavior does not affect [his or] her believability one way or the other, and
that the CSAAS evidence does not show [he or] she had been molested. There is no
conflict in the instruction.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 504.)
When considered in context with the instructions as a whole, we conclude there is
no reasonable likelihood the jury misapplied CALCRIM No. 1193 to reduce the
prosecution’s burden of proof. The instruction informs the jury that expert CSAAS
testimony “is not evidence that the defendant committed any of the crimes charged
against him.” It also informs the jury that CSAAS testimony may only be used to decide
whether the victims’ behavior was not inconsistent with the behavior of someone who
has been molested, and to evaluate their credibility. The instruction did not permit the
jury to find any of the victims credible based solely on the opinion of Urquiza, who
61

expressed no opinion concerning the victims, their credibility, or the specific allegations
of the case. The jury was also properly instructed on the burden of proof and the
reasonable doubt standard (CALCRIM No. 220), and the factors it should consider in
evaluating a witness’s credibility (CALCRIM No. 226). Additionally, the jury was
instructed with CALCRIM No. 303, as follows: “During the trial, certain evidence was
admitted for a limited purpose. You may consider that evidence only for that purpose
and for no other.” We presume the jury understood and applied all of these instructions.
(Wilson, supra, 44 Cal.4th at p. 803.) Read as a whole, the instructions did not lower the
prosecution’s burden of proof or allow the jury to use CSAAS testimony for an improper
purpose. We conclude that defendant has failed to demonstrate that the trial court’s
CALCRIM No. 1193 instruction was erroneous.
V. Cumulative Error
Defendant asserts that the judgment should be reversed due to cumulative error.
According to defendant, even if we find the errors to be harmless individually, the
cumulative effect of these asserted errors discussed in parts I. through IV. of the
Discussion, ante, deprived him of a fair trial. We reject this contention.
The premise behind the cumulative error doctrine is that, while a number of errors
may be harmless taken individually, their cumulative effect may require reversal.
(People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) We have reviewed all of
defendant’s claims and find no error; thus, there is no cumulative prejudicial error
warranting reversal.
VI. Consecutive Sentences on Counts One and Two
A. Defendant’s Contentions
Defendant asserts that the trial court failed to exercise its discretion, and abused its
discretion, in imposing consecutive sentences on counts one and two, assertedly violating
his due process rights. Defendant argues that the crimes in counts one and two were
committed at the same time against the same victim. Defendant contends that, because
62

the trial court incorrectly concluded that these crimes were committed on separate
occasions against different victims, the court abused its discretion in imposing
consecutive sentences. According to defendant, sentencing in this manner was “an abuse
of discretion because . . . it showed that [the trial] court, rather than looking at the
individual offender, had decided that [defendant] was to receive the maximum possible
sentence without regard to the circumstances of each of his convictions.” Therefore,
defendant argues that we should remand for resentencing. We agree that remand is
appropriate.
B. Additional Background
In sentencing defendant, the trial court stated: “First of all, I found the testimony
of the victims who testified in the trial to be very credible. I know [defendant] contends
that, basically, he has been framed and falsely accused. I find that to be outrageous under
the circumstances. I found the testimony of the victims was very credible. [¶] I feel that
throughout this case that I presided over for many, many months and more than just the
trial, I have gotten some insight into [defendant]’s character. He is a relentlessly
manipulative person. He just keeps coming. He doesn’t stop. There’s no end to his
attempts to manipulate other individuals weaker than himself to serve his own selfish
interests. [¶] I am going to impose the maximum sentence on this matter. The probation
report for the most part is accurate; but I find that [its] omission, the failure to reference
the uncharged victims, P. and Ra., to be a deficiency. [¶] I am amazed that the testing
that was done on [defendant] somehow reflects that he is at low risk to re-offend. I think
my intuition suggests otherwise. [¶] [Defendant] has not acknowledged any
responsibility for any of his acts and multiple victims, multiple young women that have
been victimized by him. [¶] I am going to follow the recommendation of the Probation
Department and choose Count 32, the charge of furnishing ecstasy to a minor, Ja., to be
the principal term and impose the upper term of nine years. [¶] I choose the upper term
because the evidence demonstrated that there were multiple incidences of that crime
63

having been committed; and I agree that [defendant] should be incarcerated for the
maximum term that the law permits, so I impose the upper term of nine years for that
count. [¶] The remaining crimes and convictions, I intend to impose consecutive
sentencing as permitted by law. Count 33, a violation of [section] 11380 of the Health
and Safety Code, I impose the midterm, reduced by two-thirds, and run consecutive
because that’s a separate offense committed on a separate occasion. [¶] Actually, there
were multiple occasions when that offense was committed as well, like Count 32. [¶]
Regarding Count 1, violation of [Penal Code section] 289(i), again, I impose one-third of
the midterm, which amounts to eight months, and order that to be run consecutive. [¶]
Likewise, Count 2, violation of [Penal Code section] 288a(b), another eight months,
which is one-third the midterm. [¶] Counts 3, 4 and 16 through 31 are all violations of
Penal Code Section 288(c)(1). As recommended by the Probation Department, I order
the defendant to be sentenced to one-third the midterm as to each count, which in total is
12 years. [¶] Each of those crimes was committed on a separate occasion against
several victims, and they warrant consecutive sentencing. [¶] Counts 5 through 15 are
all violations of [Penal Code section] 288(a). As recommended by the Probation
Department, I impose an additional 22 years, calculated as one-third the midterm for each
count. [¶] It was clear to me from the testimony that the crimes for which the defendant
was found guilty by the jury, based on the charges by the prosecution, represent actually
only a portion of the number of instances in which he victimized young women. [¶] The
aggregate prison term is 46 years and four months.” (Italics added.)
C. Analysis
Penal Code section 669 “grants the trial court broad discretion to impose
consecutive sentences when a person is convicted of two or more crimes.” (People v.
Shaw (2004) 122 Cal.App.4th 453, 458.) “The sentencing rules specify several criteria to
guide the trial court’s determination whether to impose consecutive or concurrent terms.”
(Ibid.) California Rules of Court, rule 4.425, sets forth factors to be considered by the
64

trial court in deciding whether to impose consecutive or concurrent sentences. 30 “Only
one criterion or factor in aggravation is necessary to support a consecutive sentence.”
(People v. Davis (1995) 10 Cal.4th 463, 552.) We review the trial court’s determination
to impose consecutive sentences for abuse of discretion. (People v. Bradford (1976) 17
Cal.3d 8, 20.) “Discretion is abused when the court exceeds the bounds of reason, all of
the circumstances being considered.” (Ibid.)
“The court shall state the reasons for its sentence choice on the record at the time
of sentencing.” (Pen. Code, § 1170, subd. (c).) Thus, generally, when a trial court
chooses to impose consecutive sentences, it is required to state its reasons for doing so.
(Rule 4.406(b)(5).) “If the sentencing judge is required to give reasons for a sentence
choice, the judge must state in simple language the primary factor or factors that support
the exercise of discretion. The statement need not be in the language of the statute or
these rules. It must be delivered orally on the record. The court may give a single
statement explaining the reason or reasons for imposing a particular sentence or the
exercise of judicial discretion, if the statement identifies the sentencing choices where
discretion is exercised and there is no impermissible dual use of facts.” (Rule 4.406(a),
boldface omitted.)

30

“Factors affecting the decision to impose consecutive rather than concurrent
sentences include: [¶] (a) Facts relating to crimes [¶] Facts relating to the crimes,
including whether or not: [¶] (1) The crimes and their objectives were predominantly
independent of each other; [¶] (2) The crimes involved separate acts of violence or
threats of violence; or [¶] (3) 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. [¶] (b) Other facts and limitations [¶] Any circumstances
in aggravation or mitigation may be considered in deciding whether to impose
consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the
upper term; [¶] (2) A fact used to otherwise enhance the defendant’s sentence in prison
or county jail under section 1170(h); and [¶] (3) A fact that is an element of the crime
may not be used to impose consecutive sentences.” (Cal. Rules of Court, rule 4.425.)
Further undesignated citations to rules are to the California Rules of Court.
65

Referencing rule 4.425(a)(3), the probation report stated, “The crimes in Counts 133 were committed at different times or separate places, rather than being committed so
close in time and place as to indicate a single period of aberrant behavior.” The
probation report further stated that consecutive sentencing was “being recommended
relative to Rule 4.425(a)(3)” for the same reasons.
Counts one and two both involved J. as the victim. Defendant was found guilty on
count one of sexual penetration of J., a victim under 16 years of age (Pen. Code, § 289,
subd. (i)), and, on count two, of oral copulation with J., a victim under 16 years of age
(Pen. Code, § 288a, subd. (b)(2)). With regard to the allegations in these counts, J.
testified that, one day when she was 14, she took a shower and then, wearing only a
towel, she went into a bedroom to get dressed. Defendant entered the room, started
touching J., and tried to get her towel off. J. told defendant to stop, but defendant
reassured her that he was not going to hurt her. Defendant eventually got J.’s towel off,
laid her on the bed, touched her breasts, opened her legs, caressed her vagina, and
performed oral sex on her. Defendant also inserted two fingers in J.’s vagina. Defendant
attempted to place his penis in J.’s vagina. J. said no. Defendant’s penis pushed against
J.’s vagina “but it wouldn’t go and then [J.] told [defendant] that [she] wasn’t ready and
then he stopped.” Defendant then left the room.
In sentencing defendant, the trial court stated, “Each of those crimes was
committed on a separate occasion against several victims, and they warrant consecutive
sentencing.” Defendant, assuming that this statement contemplates counts one and two
as well as other counts, asserts that the trial court was incorrect on this point, because the
two counts involving J. were committed at the same time against the same victim.
Additionally, defendant points out that defense counsel raised this issue prior to the trial
court’s imposition of sentence, encouraging the trial court to impose concurrent terms on
“the counts that happened at the same time and place, such as the counts in Count 1 and 2
and the counts involving” J. and L.
66

The People assert that “there is no indication that the trial court believed
consecutive sentences were statutorily mandated due to counts 1 and 2 being committed
on separate occasions,” and that “review of the record demonstrates that the trial court
exercised its discretion in determining that the sentences on counts I and II should run
consecutively and did not premise this sentence on an assumption they were committed
on separate occasions. While the trial court did state that ‘Each of those crimes was
committed on a separate occasion against several victims, and they warrant consecutive
sentencing,’ it is clear that this finding was in relation to counts III, IV and XVI through
XXXI as specifically stated by the court.” The People further insist that the trial court
“made no such finding as to counts I and II.” The People’s position is that the trial court
“simply stated that it intended to impose consecutive sentencing as to the remaining
convictions as permitted by law.”
We conclude that it is not clear from the record why the trial court imposed
consecutive terms on counts one and two. It is possible, as the People assert, that the trial
court’s statement that “[e]ach of those crimes was committed on a separate occasion
against several victims, and they warrant consecutive sentencing,” was not meant to
encompass counts one and two and the reasons for imposing consecutive sentences on
those counts, but rather that statement only addressed counts three, four, and sixteen
through thirty-one. The single-sentence paragraph in which the trial court made this
statement immediately follows a paragraph addressing counts three, four, and sixteen
through thirty-one.
On the other hand, the paragraph in which the trial court made this statement is not
so limited by its terms and could address counts one and two as well. Additionally, it is
worth reiterating here that the sole basis in the probation report for the recommendation
of imposing consecutive terms on all counts, with reference to rule 4.425(a)(3), is that
“[t]he crimes in Counts 1-33 were committed at different times or separate places, rather

67

than being committed so close in time and place as to indicate a single period of aberrant
behavior.”
If the trial court was indeed relying on the grounds set forth in the probation report
as supporting consecutive sentences—that these 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”—it failed to sufficiently articulate its
findings in this regard as to counts one and two. The crimes charged in those counts were
committed against the same victim at the same location. However, as the People assert,
consecutive terms may be imposed for separate acts committed during a single episode of
sexual assault. (See, e.g., People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [a defendant
sentenced, in part, to consecutive terms for three separate violations of same child
molestation statute based on single incident during which the defendant fondled three
separate portions of victim’s body]; People v. Harrison (1989) 48 Cal.3d 321, 324-326
[consecutive sentences for separate acts of penetration during sexual assault].) Based on
proper findings, it may be possible for the court to impose consecutive sentences on
counts one and two. The People thus maintain that the trial court may have imposed
consecutive sentences because the “crimes involved separate acts of violence or threats of
violence.” (Rule 4.425(a)(2).) However, if this was the basis for the trial court’s
decision, it is not clear from the transcript of the sentencing hearing.
Of course, the trial court may have elected to impose consecutive sentences on
counts one and two for different reasons. These reasons could be other factors set forth
in rule 4.425 or other reasons reasonably related to the sentencing decision.
(Rule 4.408(a).) However, such reasons are not set forth in the record.
Accordingly, we shall vacate the sentences imposed on counts one and two and
remand the matter to the trial court for resentencing on those counts, at which the trial
court shall impose concurrent or consecutive sentences and if it chooses to impose
consecutive sentences, articulate the reasons for its choice.
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VII. Fines and Fees
We note that, during the oral pronouncement of sentence, the trial court did not
clearly impose a court operations assessment and a criminal conviction assessment on
each count, although it did state at one point, “I order the mandatory -- any other
mandatory charges, including penalty assessments and surcharges and lab analysis fees, if
appropriate.” The abstract of judgment does not indicate that the trial court imposed the
court operations assessments and criminal convictions assessments. To the extent that
the trial court at sentencing could be deemed not to have imposed these fees, this was
error. Both of these fees are statutorily mandated. (Pen. Code, § 1465.8, subd. (a)(1);
Gov. Code, § 70373, subd. (a)(1); see also People v. Alford (2007) 42 Cal.4th 749, 754
[court operations assessment is mandatory for all convictions]; People v. Robinson (2012)
209 Cal.App.4th 401, 405 [court operations and criminal conviction assessments “are a
required part of [a] defendant’s sentence and may be corrected on appeal”].) Failure to
impose mandatory fees, fines, penalties, and assessments constitutes an unauthorized
sentence, which may be corrected by an appellate court even in the absence of an
objection or argument below. (People v. Turner (2002) 96 Cal.App.4th 1409, 14131415.) At defendant’s resentencing, we direct the trial court to clearly impose a court
operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) and a criminal conviction
assessment (Gov. Code, § 70373, subd. (a)(1)) for each conviction.
DISPOSITION
The sentences imposed on counts one and two are vacated and the matter is
remanded to the trial court for resentencing on those counts, at which the trial court shall
choose to impose concurrent or consecutive sentences, articulate the reasons for its
choice if it chooses to impose consecutive sentences, and impose a court operations
assessment and a criminal conviction assessment on each of the 33 counts as stated
herein. The trial court is then directed to prepare an amended abstract of judgment and

69

forward a copy of the amended abstract of judgment to the Department of Corrections
and Rehabilitation. As so modified, the judgment is affirmed.

MURRAY, Acting P. J.

We concur:

HOCH, J.

RENNER, J.

70

IN THE

Court of Appeal of the State of California
IN AND FOR THE

THIRD APPELLATE DISTRICT
MAILING LIST
Re:

The People v. Phea
C080488
Sacramento County
No.
13F01371

Copies of this document have been sent by mail to the parties checked below unless they were
noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is
not checked below, service was not required.
Angelo S. Edralin
Office of the State Attorney General
P.O. Box 944255
Sacramento, CA 94244-2550
Office of the State Attorney General
P.O. Box 944255
Sacramento, CA 94244-2550
Malanje Phea
CDC #: AY0622
DOB: 03/19/1970
Kern Valley State Prison
P.O. Box 3130
Delano, CA 93216
Allen G. Weinberg
Attorney at Law
9454 Wilshire Boulevard, Suite 600
Beverly Hills, CA 90212
Central California Appellate Program
2150 River Plaza Drive, Suite 300
Sacramento, CA 95833
Honorable Timothy M. Frawley
Judge of the
Sacramento County Superior Court
720 Ninth Street
Sacramento, CA 95814