Filed 7/13/26 P. v. Bautistadiaz CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052100
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1900296)
v.
MARTIMIANO BAUTISTADIAZ,
Defendant and Appellant.
This case involves a single incident of child sexual abuse, in which Martimiano
Bautistadiaz allegedly orally copulated his niece Y.D., who was then 11 years old, by
force. After a jury trial, Bautistadiaz was convicted of aggravated sexual assault on a
child in violation of Penal Code section 269 and of committing a lewd or lascivious act
on a child by force in violation of Penal Code section 288. On appeal, Bautistadiaz
challenges the admission of two sets of out-of-court statements by Y.D., one to her
mother and another during an interview with the police. He also contends that there was
insufficient evidence of force and that an instruction given the jury on Child Sexual
Abuse Accommodation Syndrome (CSAAS) was erroneous. As explained below, we
reject each of these challenges and affirm the judgment.
I. BACKGROUND
A. The Disclosure to Y.D.’s Mother
Y.D. was born in May 2007. In 2018, she lived with her mother C.B., her father,
and her two sisters. (To protect the privacy of the victim, we refer to her mother by the
mother’s initials and do not name other relatives. (See Cal. Rules of Court,
rule 8.90(b)(4), (11).)) Living with them were C.B.’s brother Bautistadiaz, C.B.’s other
brother, and the other brother’s daughter.
One day in January 2019, Y.D. came home from school crying. As Y.D. was being
bullied at school, this was not unusual. While Y.D. was at the table eating with her
mother and younger sister, her mother asked how things went in school. Y.D. responded
that “her uncle had pulled her pants down and he had sucked her ‘pucha,’ ” by which
Y.D. meant her “intimate part.”
After C.B. took Y.D. into a room away from her sister, Y.D. said that the incident
happened in the house in a hallway between the bathroom and the bedroom. Bautistadiaz
grabbed her hand and then he pulled down her pants. Y.D also said that, afterwards, she
kicked him and locked herself in a bedroom. When her mother asked Y.D. why she had
not said anything earlier, Y.D. said she was afraid, but she had decided to tell C.B. after
she heard that another girl at her school had been raped by her uncle.
C.B. told her other brother and their mother about the incident, but did not tell
Y.D.’s father or notify the police. C.B. told Y.D. that she would protect Y.D. and that
Bautistadiaz was going to move to Mexico to take care of their father, but she did not ask
Bautistadiaz to leave the apartment. Later, C.B. tried to talk to Y.D. about the incident,
but Y.D. refused.
B. The Investigation
Roughly three weeks after Y.D.’s disclosure to her mother, a guidance counselor at
Y.D.’s middle school heard that she had been sexually abused. When the counselor asked
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Y.D., Y.D. began crying and said her uncle was taking her clothes off and touching her
with his mouth. The guidance counselor, a mandated reporter, notified the police.
1. The Bautistadiaz Interview
That same day, police arrested Bautistadiaz, and an officer interviewed him.
Bautistadiaz volunteered that he and Y.D. played a game in which she pulled down his
pants. The officer asked when this had last happened, and Bautistadiaz said that several
weeks earlier Y.D. had pulled his shorts down, and he had pulled her shorts down in
response.
The officer then asked about Y.D.’s allegation that Bautistadiaz had licked her. At
first, Bautistadiaz said he did not remember, but then offered that maybe his mouth
touched her hip. Later, Bautistadiaz said that he could have licked her “lower area.” He
then motioned near his groin to indicate where he put his mouth on Y.D. He denied using
his tongue but said he “gave [Y.D] a kiss.” Finally, Bautistadiaz said he kissed Y.D.’s
vagina, immediately felt bad about it, and got off of her.
At the officer’s suggestion, Bautistadiaz wrote an apology letter to Y.D. In the
letter, as Officer Gonzalez translated, Bautistadiaz asked Y.D. to “forgive me. I don’t
know what happened to me, why I did that. I’m not like that. I’m full of regret.”
Bautistadiaz also said that “[i]t’s not right what I did” and “[i]t wasn’t my intention to do
that.”
2. The Y.D. Interview
The officer who interviewed Bautistadiaz also interviewed Y.D. The officer began
the interview, which took place the day after Bautistadiaz’s interview, by warning Y.D.
that she should tell him if she did not know the answer to a question and testing her
understanding of that warning. The officer then asked Y.D. about her uncle and why she
was there. Y.D. replied that “he licked my private part,” which Y.D. explained to the
officer meant her vagina.
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Y.D. told the officer that, when she went to wash her hands, Bautistadiaz asked her
to come over, as he did when playing with her. Then, Y.D. continued, Bautistadiaz
“caught me by the arm, put me on the ground gently, he pulled down my pants, and he
did it.” Y.D. also added that, when Bautistadiaz pulled down her pants, he “grabbed [my]
arms.” Y.D. said that Bautistadiaz pulled down her underwear, that she was scared, and
that she did not feel that she could get away.
Finally, Y.D. said that this incident was the first time that Bautistadiaz had abused
her and that he did not abuse her any other time.
C. The Charges and the Preliminary Hearing
In January 2019, a complaint charged Bautistidiaz with aggravated sexual assault
of a child under 14 years old and more than seven years younger than him (Pen. Code,
§ 269, subd. (a)(4); count 1) and committing a lewd and lascivious act on a child by
force, violence, duress, menace, and fear (id., § 288, subd. (b)(1); count 2).
In October 2019, a preliminary hearing was held. The prosecution presented Y.D.
as a witness, but she did not recount the events that she had described to her mother and
the police. Instead, after recounting the games that she played with Bautistadiaz, Y.D.
began crying. After a break, she explained that she “really miss[ed] [her] uncle” and felt
guilty about him no longer living with the rest of the family because she had lied about
what happened. After another break, Y.D. said she did not want to testify. However,
after still another break, when the prosecutor asked if she had told her friend that her
uncle touched her inappropriately, Y.D. admitted “A little.” But, when the prosecutor
asked if she had said her uncle touched her vagina, Y.D. again refused to testify.
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The hearing was continued, but the next day Y.D refused to testify. However,
after the prosecutor played a video recording of her interview with the police, Y.D.
confirmed the transcript reflected the video, but said she did not remember telling the
officer what she had said in the video. Additionally, on cross-examination, Y.D. said
Bautistadiaz simply fell onto her, and his mouth landed near her vagina.
The magistrate held the interview video admissible under Evidence Code
section 1235 as a prior inconsistent statement and under Evidence Code section 1360
because it had sufficient indicia of reliability. The court then held that there was
sufficient evidence to believe that Bautistadiaz had committed both aggravated sexual
assault and a lewd or lascivious act upon a child by force. A week later, the district
attorney filed an information charging Bautistadiaz with one count of aggravated sexual
assault against a child and one count of a committing a lewd or lascivious act against a
child by force.
D. The Trial
The case went to trial in July 2023 and spanned seven days.
Although the prosecution called Y.D. as a witness, Y.D. repeatedly refused to
answer the prosecutor’s questions, and the trial court found she was unavailable to testify
given her refusals. The prosecutor then moved to admit Y.D.’s preliminary hearing
testimony, which the trial court granted, reasoning that Y.D. was unavailable as a witness
and Bautistadiaz had an opportunity to cross-examine her at the hearing. The trial court
admitted testimony from Y.D.’s mother concerning Y.D.’s disclosure to her, ruling this
evidence admissible under Evidence Code section 1360 because it had sufficient indicia
of reliability. The trial court also allowed the prosecution to present a video of Y.D.’s
interview with the police under Evidence Code section 1294 because it had been properly
admitted at the preliminary hearing under Evidence Code section 1235.
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In addition to the testimony from Y.D.’s mother and the police interview, the
prosecution presented testimony from the police officer who interviewed Bautistadiaz
and a video of the interview in which Bautistadiaz admitted, among other things, to
putting his mouth on Y.D.’s vagina.
Finally, the prosecution presented testimony from Dr. Blake Carmichael, a
CSAAS expert. Dr. Carmichael testified that he knew nothing about the case and could
offer no opinion about the specific facts or any ultimate conclusion. Instead, he testified
to various counterintuitive behaviors exhibited by some victims of child sexual abuse,
including that children “may share different details or different aspects of what happened
depending on who they’re talking to” and depending on how comfortable they are with
the audience. He also testified that some victims will recant or retract disclosures of
abuse, especially when the abuser is a family member and the disclosure causes anger
and other negative consequences.
Bautistadiaz testified in his defense. He recalled playing games with his three
nieces and said that they sometimes pulled his pants down. He also remembered the
incident in the hallway, but said that Y.D. fell and then he fell on top of her while helping
her up. At one point he admitted pulling Y.D.’s pants down, but elsewhere said he had
not or at least did not remember doing so. Y.D.’s brother and his brother’s daughter, who
lived with Y.D. and Bautistadiaz, both testified on Bautistadiaz’s behalf, and both denied
seeing Bautistadiaz touch Y.D. inappropriately or that he was the type of person who
would molest children.
The jury convicted Bautistadiaz of both aggravated sexual assault and committing
a forcible lewd and lascivious act. The trial court subsequently sentenced him to 15 years
to life in prison for the aggravated sexual assault and imposed but then stayed a sentence
of five years for the forcible lewd act.
Bautistadiaz filed a timely notice of appeal.
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II. DISCUSSION
On appeal, Bautistadiaz challenges the admission of the testimony of Y.D.’s
mother concerning Y.D.’s disclosure of Bautistadiaz’s abuse to her mother and the
admission of Y.D.’s interview with the police. Bautistadiaz also challenges the
sufficiency of the evidence presented and the CSAAS jury instruction. Each of these
challenges is discussed below.
A. Y.D.’s Disclosure to Her Mother
Bautistadiaz contends the trial court should not have admitted the testimony of
Y.D.’s mother about Y.D.’s January 2019 disclosure that Bautistadiaz had molested her.
Bautistadiaz argues the statements described by Y.D.’s mother were hearsay and lacked
the indicia of reliability needed for admission under Evidence Code section 1360.
Because Bautistadiaz does not argue that admission of this testimony violated the
Confrontation Clause, and argues that due process was violated only by improper
admission of this evidence, we review admission of the testimony for abuse of discretion.
(People v. Alvarez (2025) 18 Cal.5th 387, 462.)
1. Evidence Code Section 1360
The Evidence Code contains a special provision concerning hearsay statements by
children who are victims of child abuse or neglect. Section 1360 of the Evidence Code
provides that in a criminal prosecution where the victim is a minor, the hearsay rule does
not bar “a statement made by the victim when under the age of 12 describing any act of
child abuse or neglect performed with or on the child by another” if certain conditions are
met. (Evid. Code, § 1360, subd. (a).) Those conditions are: “(1) the court finds that the
time, content, and circumstances of the statement provide sufficient indicia of reliability;
(2) the child either testifies at the hearing or there is corroborating evidence of the
hearsay statements; and (3) the proponent of the statement gives notice to the adverse
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party that it intends to use the statement at trial.” (People v. Brodit (1998) 61 Cal.App.4th
1312, 1329 (Brodit); see In re Cindy L. (1997) 17 Cal.4th 15, 29 (Cindy L.).)
Our Supreme Court has identified five factors to be considered in determining the
reliability of statements by child victims of abuse or neglect. Four factors are drawn from
federal Confrontation Clause decisions: “ (1) spontaneity and consistent repetition;
(2) the mental state of declarant; (3) use of terminology unexpected of a child of a similar
age; and (4) lack of motive to fabricate.” (Cindy L., supra, 17 Cal.4th at p. 30, citing
Idaho v. Wright (1990) 497 U.S. 805, 821-822, overruled on other grounds by Crawford
v. Washington (2004) 541 U.S. 36, 60-62.) In addition, our Supreme Court has identified
another factor to be considered: “the child’s ability to understand the duty to tell the truth
and to distinguish between truth and falsity.” (Id. at p. 30; see also id. at p. 29 [noting
that this list of factors is “nonexhaustive”].)
2. Application
Bautistadiaz challenges admission of Y.D.’s disclosures to her mother solely on the
ground that the disclosures lacked sufficient indicia of reliability. As explained below, we
find no abuse of discretion in the trial court’s conclusion to the contrary. Indeed, the
relevant factors either favor admission or are neutral.
First, Y.D. made the disclosure spontaneously. She arrived home from school.
Y.D. was crying when she returned, and later when she was eating with her mother, her
mother asked how things went at school. Then, Y.D. disclosed that her uncle had kissed
her on the vagina. Although Y.D.’s mother certainly prompted Y.D. to speak, there is no
evidence that she prompted Y.D. to speak about the incident with her uncle, and Y.D. later
refused to talk about that incident. As a consequence, the trial court had solid grounds for
finding that Y.N.’s disclosure to her mother was spontaneous.
Bautistadiaz notes that Y.D.’s disclosure was made six weeks after the incident
with him. That sequence shows that the disclosure was not made immediately. However,
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it does not undermine the conclusion that disclosure of the abuse was made without
prompting, and the lapse of six weeks does not cast any doubt on Y.D.’s ability to
recollect accurately what happened. Bautistadiaz also notes that Y.D. heard that another
girl at school was raped by her uncle. While that fact suggests that Y.D. may have been
thinking about sexual abuse, it does not undermine the spontaneity of Y.D.’s disclosure of
the incident to her mother and thus did not preclude the trial court from finding that the
disclosure was spontaneous. Furthermore, Y.D.’s account of the abuse contains concrete
details that lend credibility to the account: According to Y.D., Bautistadiaz called her
over as if they were about to play a game, he made oral contact, and Y.D. kicked him as
she escaped.
Second, as the trial court found, Y.D.’s mental state was consistent with the mental
state of a child who had been sexually abused. Her mother testified that, when she made
the disclosure, she was crying. That is exactly the sort of mental anguish that one would
expect from a child who had been abused. Bautistadiaz points out that Y.D. frequently
came home from school crying because she was being bullied at school. However, that
fact does not undermine the trial court’s conclusion that Y.D.’s mental state was
consistent with the mental state which one would expect a victim of abuse to have.
Third, there is no evidence that Y.D. used any terminology inconsistent with her
age. To the contrary, her mother testified that Y.D. said that Bautistadiaz had “kissed her
in her part,” and that this was the word Y.D. used for “her private part.”
Fourth, Y.D. had no motive to fabricate the accusation against Bautistadiaz. To the
contrary, Y.D.’s mother later testified that Y.D. got along well with Bautistadiaz before
the incident, which shows that there was “no factor of revenge or hostility in play.”
(People v. Eccleston (2001) 89 Cal.App.4th 436, 448 (Eccleston); see also People v.
Roberto V. (2001) 93 Cal.App.4th 1350, 1375 [noting that the record suggested no
motive to fabricate given the victim’s “affection for appellant”].)
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Fifth and finally, when the court decided to admit Y.N.’s disclosure, there was no
reason to doubt Y.N.’s ability to distinguish between truth and falsity. Y.N. was not a
small child at that point; to the contrary, at the time of the disclosure in January 2019, she
was 11 years old. Bautistadiaz notes testimony from Y.D.’s mother that Y.D. had done or
said things that left her mother wondering if they were true and that she was not sure that
the incident disclosed by Y.D. was true. However, this testimony was not before the court
when it admitted Y.D.’s disclosure to her mother. Moreover, while the testimony casts
some doubt on Y.N.’s credibility, the trial court reasonably concluded that other indicia of
reliability outweigh these doubts.
Accordingly, we conclude that the trial court did not abuse its discretion in
concluding that Y.N.’s disclosure to her mother had sufficient indicia of reliability and
admitting the evidence under Evidence Code section 1360. (See Cindy L., supra, 17
Cal.4th at p. 35.)
B. Y.D.’s Interview with the Police
In addition to challenging admission of Y.N.’s disclosure to her mother,
Bautistadiaz challenges admission of Y.D.’s police interview, once again on the ground
that the statements in question lacked sufficient indicia of reliability for admission under
Evidence Code section 1360. Although the trial court admitted the video under Evidence
Code section 1294, the Attorney General argues that we may affirm based on either
section. As we may affirm on any proper ground (see People v. Blacksher (2011) 52
Cal.4th 769, 806, fn. 21 [“ ‘If a judgment rests on admissible evidence it will not be
reversed because the trial court admitted that evidence upon a different theory . . . .’ ”]),
we choose to do so based on Evidence Code section 1360 because, here again, the factors
relating to reliability either favor admission of the interview or are neutral.
First, although Y.D.’s statements to the police were not spontaneous, they showed
“consistent repetition.” (Cindy L., supra, 17 Cal.4th at p. 30.) Y.D. disclosed to her
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mother that Bautistadiaz accosted her in the hallway, pulled down her pants, and made
oral contact with her vagina. In her interview with the police, Y.D. said the same. This
repetition gives Y.D.’s statements in the interview credibility and favors admission.
(Brodit, supra, 61 Cal.App.4th at p. 1330; see also Eccleston, supra, 89 Cal.App.4th at
p. 446 [holding consistent repetition factor satisfied because “the general outline of
abuse . . . remained constant”].)
Second, although Y.D. was not crying and her mental state was not distraught
during the interview, she did tell her interviewer that she was nervous, as one would
expect a victim of sexual abuse to be. As a consequence, Y.D.’s mental state slightly
favors admission.
Third, during the interview with the police, Y.D. did not use any terminology that
would be unexpected for her age and cast doubt on her reliability. To the contrary, she
told the police that Bautistadiaz had licked “my private part,” which as noted above is the
term she used with her mother and a girl of her age is likely to use. When the police offer
asked her what she meant by that, she did refer to her “vagina.” However, Y.D. was
11 years old by the time of the interview, and it is not surprising that by that age she
would know the formal term for this part of her anatomy. Accordingly, we conclude that
the terminology factor favors admission.
Fourth, Y.D.’s interview with the police showed no motive to lie about
Bautistadiaz abusing her. To the contrary, during her interview she said she had a
positive relationship with him: She told the police that she used to play regularly with
her and that he never punished her even though he was allowed to do so. Moreover, her
subsequent refusals to testify against Bautistadiaz suggest that she had strong incentives
not to inculpate him. As a consequence, the motive factor also favors admission.
Fifth, Y.D. showed an ability to understand that she should tell the truth and to
distinguish between truth and falsehood. At the beginning of the interview, the officer
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interviewing Y.D. told her that, if she did not know the answer to a question, she should
say that she did not know. Then, the officer asked Y.D. the name of his dog, and she
answered she did not know. Similarly, when the officer asked what is a patella, she
answered that she did not know. She also told the officer that he was wrong when he told
her that she was 30 years old. Thus, while the officer never told Y.D. that it was
important that she tell the truth, the trial court nonetheless had grounds for concluding
that she knew the difference between truth and falsity and that she was trying to testify
truthfully.
Bautistadiaz contends that about half a dozen of the officer’s questions were
suggestive. However, most of the questions cited by Bautistadiaz concern whether
something like the incident at issue in the case occurred another time or whether Y.D.
kept secrets. Only one question at the end of the interview—“did he do that to any other
part of your body”—suggested any sexual abuse, and Y.D. answered that question “No.”
As a consequence, the police officer’s questions do not cast any doubt on the reliability of
Y.D.’s statements during the interview.
Bautistadiaz points out that there was no physical evidence to corroborate Y.D.’s
statements in the interview. However, Evidence Code section 1360 does not require
corroborating physical evidence. Instead, section 1360 provides that when a child victim
is “unavailable as a witness,” there must be “evidence of the child abuse or neglect that
corroborates the statement made by the child.” (Evid. Code, § 1360, subd. (a)(3)(B).)
There was such evidence here. First, in his interview with the police, Bautistadiaz
admitted that he pulled down YD.’s pants and that he kissed her groin area. Second,
Bautistadiaz wrote Y.D. a letter in which he said that it was “not right what I did” and
asked her to forgive him.
Accordingly, we conclude that the trial court did not abuse its discretion under
Evidence Code section 1360 in admitting Y.D.’s statements in the police interview. In
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light of this conclusion we need not reach the Attorney General’s argument that those
statements were admissible as prior inconsistent statements under Evidence Code
section 1294.
C. Substantial Evidence
Bautistadiaz was convicted of aggravated sexual assault of a child under 14 years
in violation of Penal Code section 269, subdivision (a)(4) and committing a lewd or
lascivious act on a child under 14 by force, violence, duress, menace or fear in violation
of Penal Code section 288, subdivision (b). The jury was instructed that the assault
charge required proof that Bautistadiaz committed oral copulation “by force, fear or
threats” and that the lewd act charge required an act of oral copulation “by force,
violence, duress, menace, or fear of immediate and unlawful bodily injury.” Bautistadiaz
contends there was insufficient evidence to support these requirements. As explained
below, we disagree.
1. The Substantial Evidence Standard
In arguing that the jury’s verdict was not supported by substantial evidence,
Bautistadiaz “ ‘ “bears a heavy burden.” ’ ” (People v. Powell (2011) 194 Cal.App.4th
1268, 1287.) “In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kraft (2000)
23 Cal.4th 978, 1053 (Kraft); see also People v. Stacy (2010) 183 Cal.App.4th 1229,
1234 [analyzing whether “ ‘ “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt” ’ ”].) Because the substantial evidence
standard examines whether a rational trier of fact could have found the defendant guilty, a
court applying the standard does not evaluate witness credibility or resolve conflicts in
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the evidence (People v. Young (2005) 34 Cal.4th 1149, 1181) and “ ‘must accept logical
inferences that the jury might have drawn from the evidence even if the court would have
concluded otherwise’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1015). Indeed, in
applying the substantial evidence standard, a reviewing court “presumes in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citations.]” (Kraft, at p. 1053.) As a consequence, “[a] reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support” ’ the jury’s verdict. [Citation].” (People v.
Zamudio (2008) 43 Cal.4th 327, 357; see also ibid. [“ ‘Conflicts and even testimony
[that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends.’ ”].)
2. Application
The record contains substantial evidence of force sufficient to support both the
verdicts against Bautistadiaz.
To satisfy an assault charge under Penal Code section 269, the prosecution must
prove that the defendant used force “sufficient to overcome the victim’s will.” (People v.
Guido (2005) 125 Cal.App.4th 566, 576).) Although violence is one way to overcome a
victim’s will, it is not required. Nor is it necessary that the force physically facilitated the
sexual act at issue or prevented the victim from physically resisting, only that “ ‘the use
of force served to overcome the will of the victim to thwart or resist the attack.’ ” (Ibid.)
The force element of the lewd act count is slightly different: It requires proof that a
defendant used “ ‘compulsion or constraint against the victim other than, or in addition
to, the physical contact which is inherent in the prohibited act.’ ” (People v. Morales
(2018) 29 Cal.App.5th 471, 480 (Morales).) As a consequence, “ ‘an act is forcible if
force facilitated the act rather than being merely incidental’ ” to it, which means that
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“ ‘[a]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts
themselves’ are sufficient to support a finding that the lewd act was committed by means
of force.” (Ibid.)
The evidence was plainly sufficient to satisfy this latter requirement. Contrary to
Bautistadiaz’s assertion, the evidence did not merely show that he placed Y.D. on the
ground and pulled down her pants and underpants, arguably acts inherent in orally
copulating Y.D.. Bautistadiaz also caught Y.D. by the arm before putting her on the
ground, and he grabbed her arms so that she did not feel that she could get away. Based
on this evidence, a reasonable jury easily could find that, by “ ‘[a]cts of grabbing, holding
and restraining,’ ” Bautistadiaz used physical compulsion beyond that inherent in the
lewd act committed to facilitate the act, thereby satisfying the force requirement for the
lewd act conviction. (Morales, supra, 29 Cal.App.5th at p. 480.)
In addition, although the evidence is not quite so compelling, a reasonable jury
could have found based on that evidence that Bautistadiaz used force sufficient to
overcome Y.D.’s will and thus satisfied the force requirement for his sexual assault
conviction. In her interview, Y.D. said that she did not feel like she could get away from
Bautistadiaz, and she told her mother that she kicked Bautistadiaz before locking herself
in a bedroom. As Bautistadiaz was 31 and Y.D. only 11 at the time, and therefore
Bautistadiaz was taller, heavier, and stronger, a reasonable jury could infer that, when
Bautistadiaz caught Y.D. by the arm at the outset and then grabbed her arms while she
was on the ground, Y.D. did not feel that she could resist him, and that her will was
overcome. Indeed, the fact that Y.D. kicked Bautistadiaz as she fled suggests that she
believed violence was needed to ensure her escape.
In arguing that the evidence in the record was insufficient to establish the force
needed for his convictions, Bautistadiaz ignores the size and age difference between Y.D.
and himself as well as Y.D.’s testimony that he caught her by the arm and then grabbed
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both of her arms. Instead, he focuses on Y.D.’s statement that he “put [me] on the ground
gently.” However, a defendant need not continuously brutalize a victim in order to use
force beyond that necessary to commit a lewd act or to overcome the victim’s will.
Accordingly, we conclude that the jury’s verdicts are supported by substantial
evidence.
D. Instructional Error
Bautistadiaz contends the trial court erred by instructing the jurors on CSAAS
using CALCRIM No. 1193, the standard instruction developed by the Judicial Council,
because the instruction did not convey necessary limitations on the use of CSAAS
evidence. Reviewing the instruction de novo (People v. Mitchell (2019) 7 Cal.5th 561,
579), we disagree.
“ ‘ “A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant.” ’ ” (People v. Hin
(2025) 17 Cal.5th 401, 492 (Hin).) In determining whether a jury may have erroneously
interpreted an instruction, we assume that “ ‘ “ ‘jurors are intelligent persons and capable
of understanding and correlating all jury instructions which are given.’ ” ’ ” (People v.
Sattiewhite (2014) 59 Cal.4th 446, 475.)
CALCRIM No. 1193 states that CSAAS testimony is “not evidence that the
defendant committed any of the crimes charged against [him],” but may be considered
“only” in determining whether a witness’s conduct was “consistent” with having been
abused. (CALCRIM No. 1193 (2023 ed.).) A prior version was slightly different: It
referred to whether the conduct was “not inconsistent” (CALCRIM No. 1193 (2022 ed.)),
but this was changed to “consistent” to make the instruction easier to understand.
(Judicial Council of Cal., Advisory Com. on Criminal Jury Instructions Rep., Jury
Instructions: Criminal Jury Instructions (Sept. 20, 2022) pp. 4, 86.) Accordingly, the trial
16
court was instructed the jury: “You’ve heard testimony from Dr. Blake Carmichael
regarding child sexual abuse accommodation syndrome. . . . Testimony as to the
accommodation syndrome is offered only to explain certain behavior of an alleged victim
of child sexual abuse. Dr. Blake Carmichael’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
[Y.D.’s] conduct was consistent with the conduct of someone who has been molested and
in evaluating the believability of the alleged victim.”
Bautistadiaz argues that the instruction impermissible allowed jurors to use
CSAAS evidence as proof of sexual abuse. (See , e.g., People v. Housely (1992) 6
Cal.App.4th 947, 959 [holding that CSAAS evidence is “admissible solely for the
purpose of showing the victim’s reactions as demonstrated by the evidence are not
inconsistent with having been molested” and “should not be used to determine whether
the victim’s molestation claim is true”].) However, the instruction expressly warned the
jury that Dr. Carmichael’s CSAAS testimony “is not evidence that the defendant
committed any of the crimes charged against him.” (Italics added.) While the instruction
subsequently told the jury that it could use the evidence “in evaluating the believability of
the alleged victim,” in light of the earlier statement that the CSAAS testimony is not
evidence that the defendant committed any crime, no reasonable jury would understand
the instruction to authorize it to use CSAAS evidence as proof of sexual abuse.
Accordingly, courts have repeatedly upheld CALCRIM No. 1193. (See, e.g., People v.
Ramirez (2023) 98 Cal.App.5th 175, 219; People v. Ortiz (2023) 96 Cal.App.5th 768,
816; People v. Gonzales (2017) 16 Cal.App.5th 494, 504.)
This conclusion is reinforced by Dr. Carmichael’s testimony. Far from suggesting
that his testimony could be used to prove that Bautistadiaz abused Y.D., Dr. Carmichael
testified that he did not know anything about the facts of the case, did not know the
17
charges, had not interviewed anyone involved in the case, and did not know Bautistadiaz,
so he had no opinion about the facts of the case. In the face of this testimony, there was
no reasonable probability of the jury misinterpreting the instruction in the way
Bautistadiaz suggests. (See Hin, supra, 17 Cal.5th at p. 492.)
Bautistadiaz argues that courts have approved CSAAS testimony to show that
complainants’ behavior was “not inconsistent” with molestation, but not, as stated in the
current version of the instruction used here, that the behavior was “consistent” with
molestation. (See, e.g., People v. Sedano (2023) 88 Cal.App.5th 474, 485.) In fact, at
least one Court of Appeal decision has held that the phrase “ ‘consistent with’ ” complies
with the requirement to instruct that CSAAS can show an alleged victim’s reactions are
“ ‘not inconsistent with’ ” abuse, given the various limiting phrases in the instruction
cautioning the jurors not to use CSAAS as proof of guilt. (People v. Page (2025) 114
Cal.App.5th 1022, 1031-1032 (Page).) Moreover, we are unaware of any decision to the
contrary. Indeed, the phrases “ ‘consistent with’ ” and “ ‘not inconsistent with’ ” are
functionally equivalent. (Id. at pp. 1031-1032.)
We therefore conclude that the trial court did not err by instructing the jury with
the standard language of CALCRIM No. 1193.
E. Cumulative Error
Finally, Bautistadiaz contends that the judgment should be vacated based on the
cumulative prejudice from the errors asserted. (See In re Reno (2012) 55 Cal.4th 428,
483, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th
720, 728.) However, we have found no errors, and therefore “there is no prejudice to
cumulate.” (People v. Jimenez (2019) 35 Cal.App.5th 373, 391.)
III. DISPOSITION
The judgment is affirmed.
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____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
GREENWOOD, P. J.
____________________________________
DANNER, J.
People v. Bautistadiaz
H052100