Filed 7/28/26 P. v. Doan CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052907
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2304219)
v.
TIN DUC DOAN,
Defendant and Appellant.
A jury convicted defendant Tin Duc Doan of six sexual crimes
committed against his minor daughter, including four counts of forcible lewd
or lascivious act on a child under age 14 (Pen. Code,1 § 288, subd. (b)(1)
(§ 288(b)(1))). The trial court sentenced Doan to 52 years in prison.
On appeal, Doan contends the trial court erred by precluding cross-
examination of the victim about school absences and poor grades, instructing
the jury on unanimity using CALCRIM No. 3501 (CALCRIM 3501), and
imposing upper term sentences on the forcible lewd or lascivious act
convictions because the alleged aggravating circumstances constituted
elements of the charged offense. Doan further claims that his defense
1 All further unspecified statutory references are to the Penal Code.
counsel was prejudicially ineffective for not objecting to the court’s failure to
state its reasons for imposing a consecutive sentence on a conviction of
forcible sexual penetration (§ 289, subd. (a)(1)(A)). In supplemental briefing
filed upon this court’s request, Doan contends the 10-year upper term
sentences imposed on his forcible lewd or lascivious act convictions violate
the prohibition against ex post facto laws. The Attorney General agrees.
For the reasons explained below, we reject Doan’s claims of evidentiary
and instructional error. However, because Doan’s 10-year prison terms
constitute ex post facto punishment, we reverse the judgment, vacate Doan’s
sentence, and remand for a new sentencing hearing.
I. FACTS AND PROCEDURAL BACKGROUND
A. Charges
In October 2024, the Santa Clara County District Attorney filed a
second amended information (information) charging Doan with six sexual
crimes committed against N. Doe,2 namely, four counts of forcible lewd or
lascivious act on a child under age 14 (§ 288(b)(1); counts 1–4), attempted
forcible rape (§§ 261, subd. (a)(2), 664; count 5), and forcible sexual
penetration (§ 289, subd. (a)(1)(A); count 6). The offenses in counts 1 through
4 allegedly occurred about and between April 2007 and March 2015; the
offenses in counts 5 and 6 allegedly occurred between April 2017 and March
2018. The information further alleged in each count the aggravating
circumstances that Doan took advantage of a position of trust or confidence to
2 The information identified the minor victim by her first name and the
pseudonym “Doe.” We refer to the minor by the first initial of her first name
(and hereafter as Doe) and other persons by their initials to protect personal
privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4), (10)–(11).)
2
commit the offense (Cal. Rules of Court,3 rule 4.421(a)(11)), and that the
victim was particularly vulnerable (rule 4.421(a)(3)).
B. Prosecution Evidence at Trial4
Doan was born in 1970. His daughter, Doe, was born in 2001. At the
time of Doan’s trial in October 2024, Doe was 23 years old and about to
graduate from nursing school.
Doe testified that when she was two years old, she and her mother
moved to the United States from Vietnam and began living with Doan and
his extended family. Doe, her mother, and Doan eventually resided in a
house in San Jose with Doe’s paternal grandparents, her aunt and uncle, and
two cousins (one of whom is N.D.). Doe initially slept in a room with her
parents and later shared a bedroom with her cousins’ grandmother. Doe’s
mother worked many hours each day. Doan was Doe’s primary caretaker.
Doan would leave for work at 5:00 a.m. and return around 3:00 p.m.
Doe explained that her family primarily spoke Vietnamese at home, her
family’s culture was “very traditional,” and children were expected to defer
and listen to their elders.5 If Doe wanted a snack, she had to ask Doan for
permission. Doan was responsible for disciplining Doe. If Doe stayed on a
computer too long, failed to get good grades, or talked back, Doan would hit
Doe on her buttocks more than once with his hand, a coat hanger, or a stick.
This discipline happened once or twice a week. Doan sometimes threatened
3 All further unspecified rule references are to the California Rules of
Court.
4 Doan did not present any evidence in his defense.
5 Doe’s cousin N.D. likewise testified that Doe’s extended family was a
very traditional, conservative Vietnamese family in which “kids’ opinions
don’t really matter.”
3
to tell Doe’s mother about Doe’s misbehavior. Doan’s threats scared Doe
because she did not want to disappoint her mother.
When Doe was eight or nine years old and in the second (2008–2009
school year) or third grade (2009–2010 school year), Doan began sexually
abusing her. While tucking Doe into bed before her mother got home from
work, Doan would “go under [Doe’s] shirt and touch [her] breasts” with his
hand. Doan’s conduct “didn’t feel right” to Doe, but Doe loved and trusted
Doan and she was just “a kid” who thought Doan was “hugging” and
“playing” with her. This sort of touching occurred “[a]lmost every day.”
Later, when Doe was nine or 10 years old, Doan would sometimes lick
Doe’s nipples—in addition to touching her breasts. The licking made Doe feel
“weird.” Doan licked Doe’s nipples for a “couple minutes,” “[m]any times,”
almost daily until “[i]t stopped for a little bit when [Doe] was in middle
school.” Doe also testified that this sort of touching “occurred uninterrupted
essentially from the second or third grade through at least the sixth grade.”6
Doan was usually “grumpy,” but when Doan touched Doe, he “would laugh,
smile, [and] joke around.”
When Doe was in the fourth or fifth grade, she told her mother that she
(Doe) did not “like the way dad touches me.” Doe’s mother responded by
saying “it’s okay, [] it’s your dad. He’s probably just playing with you. You’re
taking it the wrong way.” This response made Doe feel like she was
“invisible.”
When Doe was in the fifth grade (2011–2012 school year), she told
Doan, “can you stop touching me.” Doe’s statement made Doan “kind of
6 On cross-examination, when defense counsel asked Doe how long the
“initial touching[ and] licking of [her] breast” lasted, Doe stated, “From when
I was in second or third grade to seventh, eighth grade middle school.”
4
upset,” which caused Doe to “feel like [she] was wrong” and “shouldn’t say
that to him.” Doan made Doe “feel stupid” for telling him to stop. Soon after
Doe told Doan to stop touching her, Doan ceased doing so for two or three
months. Thereafter, Doan resumed touching Doe’s breasts with his hands
and licking her nipples multiple times a week.
Doe recounted an incident of breast touching that occurred when she
was in the sixth grade (2012–2013 school year). Doan touched Doe’s breasts
while she was working on a computer in her room during daytime. Doan’s
conduct made Doe feel helpless. After Doe “began puberty” and had her first
menstrual cycle (when she was in the sixth grade), she had a greater
understanding of the sexual nature of the touching and was more
uncomfortable.
When Doe was a freshman in high school (2015–2016 school year; 14–
15 years old), she, her mother, and Doan moved into a house in Milpitas with
Doe’s mother’s coworker. There, Doe had her own bedroom. Doan resumed
his abuse of Doe when she was a sophomore, after finding out that she had a
boyfriend. One night, Doan tracked Doe’s cell phone, drove to her location at
a park, angrily confronted Doe and her boyfriend, and told Doe to leave with
Doan. Doan later threatened to tell Doe’s mother about the incident, call the
police on Doe’s boyfriend, and send Doe back to Vietnam. Doan also said to
Doe, “Why do you have to go outside and do that stuff? . . . [Y]ou can do it
with me.”
A few days later (in April 2017), Doan sexually abused Doe on the bed
in Doan’s room. Doan pulled down Doe’s pants and underwear, spread her
legs apart, touched her labia and clitoris with his hands, and penetrated her
vaginal canal with his finger. Doan also touched Doe’s breasts and licked her
nipples. Doe was afraid. She told Doan to stop and pushed him off her when
5
she felt his penis on her labia. Doan responded by “saying it’s okay. We’ll do
it next time.”
Later that day, when Doe was in her own bed, Doan entered Doe’s room
and “went up” her shirt and shorts with his hand. Doe “pushed [Doan] off
before he could get under [her] underwear.” Doan became “[v]ery angry” and
threatened Doe. The incident scared Doe.
That same night, Doe sent a message to her cousin N.D.’s girlfriend
(T.L.) about Doan’s misconduct. At the time that Doe messaged T.L., Doe felt
helpless and as though she would probably kill herself if an assault were to
happen again.7
T.L. testified that she was in Vietnam with N.D. when she received
Doe’s message about the molestation. T.L. was “shocked” and thought about
getting Doe “to safety.” T.L. and N.D. attempted to arrange for N.D.’s
parents to help get Doe away from Doan. T.L. and N.D. returned home from
Vietnam a week or two later.
A few days after T.L. returned from Vietnam, Doe and T.L. met with
Doe’s mother outside her workplace (a restaurant). T.L. spoke to Doe’s
mother first while Doe waited in a car. T.L. told Doe’s mother that she (T.L.)
had something “very heartbreaking” to share, but T.L. wanted Doe’s mother
to know what was “going on under [her] roof.” T.L. relayed that Doan was
“molesting his child and he tried to rape her.” Doe’s mother “was calm, and
she said she was going to handle it.” T.L. was pleased to hear that response,
and left Doe with her mother to talk.
Doe told her mother about Doan’s sexual abuse. Doe’s mother did not
believe Doe, called her a “liar,” “ho,” and “slut,” and said Doan “would never
7 T.L. had previously shared with Doe that she (T.L.) had been
molested.
6
do that.” During the conversation, Doe’s mother summoned Doan, who
arrived and denied “everything.” Doe was disappointed but not surprised by
her mother’s reaction. Doe explained that while she was growing up, she did
not have a relationship with her mother, and her mother was very dependent
on Doan.
After Doe talked with her mother, Doe messaged T.L. In response, T.L.
and N.D. drove to a location a few miles away from the restaurant to pick up
Doe. There, T.L. found Doe and her parents. Doan’s demeanor was
“defensive and sporadic.” T.L. told Doe to get out of Doan’s car. Doan
responded by telling T.L. she “can’t do that,” insinuating that T.L. was taking
away his child. Doe was scared and crying.
Doe lived at her aunt’s house for the rest of her sophomore year. Doe
spent the summer of 2017 in Sacramento with her cousin N.D. and T.L.8 Doe
tried to stay in Sacramento for the following school year, but she ended up
returning to her family’s home. By that point, a meeting of Doe’s extended
family had occurred, and Doan had moved out of the house. Doe had no
relationship with Doan thereafter.
Members of Doe’s extended family “acted like nothing happened,” and
Doe “felt like they were judging [her]” and did not believe her. In February
2023, Doe was at her grandmother’s house for a holiday gathering when
Doan arrived. Doe’s grandmother and, later, Doe’s mother asked Doe why
she would not say hi to or acknowledge Doan. After this occurred, Doe felt
“like it was unfair for [her] to not say anything.” She also felt that Doan was
being treated normally, while she was being treated as the “bad guy.”
8 N.D. testified that while Doe was staying with him and T.L. in
Sacramento, Doan called N.D. and told N.D. that what was happening was
none of his business and he needed to return Doe to her parents.
7
On February 13, 2023, Doe reported Doan’s sexual abuse to the police.
Shortly before calling the police, Doe sent text messages to six members of
her extended family. In the first message, Doe stated, inter alia, that Doan
had “sexually assaulted” her, “ ‘wanted to rape’ ” her, and “ ‘kept walking into
[her] room and always try [sic] to touch [her].’ ” In a subsequent message,
Doe told the family members to give Doan “hugs and kisses” while they could
because she was going to the police station. Doe further warned her family
members that if they were to tell Doan about her messages, Doe would let the
police know that they were cooperating with Doan.
Thereafter, Doe’s extended family “basically excluded” her and she no
longer had contact with them. Doe felt “stronger” by reporting Doan to the
police because she was seeking justice for herself. Doe denied making up
allegations of abuse out of anger at Doan for being strict with her.
On cross-examination, Doe admitted that she had snuck out of her
house on the night that her father tracked her and her boyfriend to the park.
Doe also admitted to having left home at night to see her boyfriend three or
four times a week for a couple of months before Doan found her at the park.
Doe explained that her parents were “too strict” and would not let her “hang
out with [her] friends after school.” Doe agreed with Doan’s defense counsel
that “the Vietnamese and Asian people want their kids to get good grades.”
After Doan moved out of the Milpitas house and Doe moved back from
Sacramento, Doe had the “freedom to go []out with [her] friends after school.”
Additionally, Doe admitted that she had incorrectly testified three months
8
earlier (at Doan’s preliminary hearing) that Doan tried to rape her “three or
four times.”9
C. Verdicts and Sentence
The jury convicted Doan on all six counts as charged.
In a bifurcated court trial, the trial court found true the two
aggravating circumstances alleged as to each count of conviction.
On January 6, 2025, the trial court sentenced Doan to an aggregate
term of 52 years in state prison, comprising four years (upper term) for the
attempted forcible rape conviction (§§ 261, subd. (a)(2), 664; count 5),
consecutive to 10 years (upper term) for each of the forcible lewd or lascivious
act convictions (§ 288(b)(1); counts 1–4) and eight years (upper term) for the
forcible sexual penetration conviction (§ 289, subd. (a)(1)(A); count 6).
II. DISCUSSION
Doan raises two claims of error regarding his convictions: (1) the trial
court abused its discretion and violated his constitutional rights by
precluding cross-examination of Doe about school absences and poor grades;
and (2) the court erred when instructing on unanimity with CALCRIM 3501
for the lewd or lascivious act charges (counts 1–4).
We address Doan’s two challenges to his convictions, followed by his
three sentencing claims.
9 In addition to the evidence described ante, the prosecution presented
expert testimony from psychologist Dr. Dawn Blacker on child sexual abuse
accommodation syndrome.
9
A. Challenge to Restriction of Cross-Examination
1. Additional Background
a. In limine motion proceedings
The prosecutor moved in limine to exclude any character evidence,
prior bad acts, or sexual history of the victim under Evidence Code sections
1101, 352, and 782.
At a pretrial hearing on the in limine motions, Doan’s defense counsel
explained that the event which precipitated Doe’s accusations of abuse
involved Doe being “caught in a car during school hours with a boy, having
sex.” (Italics added.) Counsel argued he “should be able to at least talk about
that aspect of what happened and the fact that she’s cutting class and
. . . [that] not going to school has an impact on what her motivation is to
make this claim.” Counsel noted that Doe had said she did not “want her
mom to find out because she really doesn’t want to hurt her mom.” Counsel
claimed that “a lot of these things will come out if [he is] allowed to at least
examine [Doe] as it relates to cutting school, sneaking out of the house at
night, [and] spending the night at other people’s houses without telling her
parents.”
After some discussion of the rape shield law (Evid. Code, § 782), the
trial court stated that “one way that we can address both [parties’] interests
is, as [defense counsel] proffered, getting into the fact that the alleged victim
was cutting school, had a boyfriend, other circumstances that you listed, but
not necessarily getting into the ‘having sex’ part. That would be a violation of
the rape shield law.” The court added that defense counsel could ask Doe
about having a boyfriend and her motives for not wanting to tell her mother
about that fact, but that counsel could not ask Doe about sexual relations.
10
Later in the hearing, the prosecutor argued that “the issues of [Doe]
potentially cutting class or being with her boyfriend when she should have
been in class, that doesn’t pertain to any issue of, for instance, moral
turpitude.” The prosecutor also argued that such evidence would be
inadmissible under Evidence Code section 352 because it “would be
substantially more prejudicial than probative.” After the trial court asked
defense counsel for more specificity regarding the evidence he wished to
introduce, counsel requested additional time to respond to the court’s inquiry.
In a subsequent pretrial proceeding, the parties and the trial court
revisited the character evidence issue. Defense counsel stated that he wished
to introduce evidence through Doe’s mother “who had testified that, during
[Doe’s] years in high school, she was cutting class, sneaking out at night, and
spending the night at a friend’s house without telling her parents.” Counsel
explained that in 2017, Doan caught Doe at a park “during the middle of the
day in a vehicle with a boy. She was cutting school.”10 (Italics added.)
Counsel also explained that within two weeks of that incident, Doe accused
Doan of abuse. Counsel detailed some events that followed Doe’s accusation,
including Doe disclosing the abuse to her mother, moving out of the family’s
house for a time, and sending text messages to her extended family before
she reported Doan to the police in February 2023.
The prosecutor objected to the proffered evidence from Doe’s mother as
improper character evidence and potentially hearsay. The prosecutor
asserted that “the only basis for relevancy of eliciting information that Ms.
Doe skipped class seven years ago would be to inflame the jury’s passions
against her and make [the jury] think that maybe she was some kind of bad
10 Defense counsel did not express a desire to introduce evidence about
Doe’s grades.
11
kid for skipping class when skipping class in and of itself is not a crime.” The
prosecutor added that it was not known “whether [Doe] was, in fact, skipping
class,” skipping classes itself had no bearing on her honesty or veracity, and
the proffered evidence was inadmissible under Evidence Code sections 352
and 786.11
The trial court acknowledged that Doan’s discovery of Doe and her
boyfriend at the park was evidence of Doe’s “potential motive to fabricate.”
The court stated it would “not take that away from the defense,” and defense
counsel could address the incident through cross-examination of Doe. The
court further stated that counsel could ask Doe if she was “cutting class” or
coming home “late in the middle of the night.” The court added, “I see the
relevance of the -- potentially, the disclosure to the cousin soon after [Doe]
may have been caught with a boy in a car. [¶] But I don’t think that the jury
would find it compelling that seven years later, she’s going to the police and
raising such huge allegations against her dad for something that never
happened, unless it happened.”
Defense counsel explained Doe’s potential motives for being “mad at”
and reporting Doan, including that he had threatened to send Doe to
Vietnam in 2017 and Doe was upset because the family continued to treat
Doan with respect and did not believe Doe had been victimized. The trial
court stated that it would let counsel “explore that to a limited amount,” but
it did not “want to have a trial within a trial.” The court added that the
proposed evidence was not subject to Evidence Code section 1101, subdivision
11 Evidence Code section 786 provides: “Evidence of traits of his
character other than honesty or veracity, or their opposites, is inadmissible to
attack or support the credibility of a witness.”
12
(b), “[b]ecause the character that [counsel was] seeking is character for
cutting class.”
The trial court ultimately ruled as follows: “All in all, I do think that
[cutting class] has some relevance in terms of [Doe’s] motivation for possibly
fabricating these charges. I think it goes to the heart of the issue for defense.
[¶] So I am not going to render it inadmissible. But for the time being, I’m
limiting the introduction of that evidence through cross-examination of Ms.
N[.] Doe herself, not through the mother, unless [defense counsel] convince[s]
me otherwise.” The court continued, “[T]o respond to the People, on their
[Evidence Code section] 352 objection, I think its probative value exceeds its
prejudicial effect. I don’t think the conduct is that prejudicial. [¶] Even if
she was in a car with a boy during her teenage years, I don’t think it’s that
prejudicial compared to the probative value for the defense such that it might
serve as the complaining witness’s motivation to fabricate charges.”
b. Cross-examination of Doe
During cross-examination of Doe at trial, defense counsel asked Doe
whether she had told the police that, in April 2017, Doan discovered she had
a boyfriend. Doe answered yes, and the following exchange occurred:
“Q And the way he found out you had a boyfriend is he tracked your
phone and found you in [the park] with your boyfriend; correct?
“A Yes.
“Q And that was when you were cutting school?
“A No.
“Q It was at night?
“A It was at night.
“Q So you snuck out of the house to get there?
“A Yes.
13
“Q And during this time would you often sneak out of the house?
“A Yes.
“Q And would you cut classes during that timeframe as well?
“[PROSECUTOR]: Object to relevance.” (Italics added.)
Defense counsel asked to approach the bench. Following an off the
record sidebar discussion, the trial court sustained the prosecutor’s
objection.12
Defense counsel next asked Doe about Doan having tracked her
through her cell phone and finding Doe at the park with her boyfriend.
Counsel continued:
“Q And you were concerned about that information getting over to your
mom; correct?
“A Yes.
“Q You had indicated that you didn’t have much relationship with your
mom; is that true?
“A Yes.
“Q Why were you worried about her finding out if you didn’t have
much of a relationship?
“A Because I didn’t want to disappoint her.
“Q What were your grades like?
“[PROSECUTOR]: Objection. Relevance.
“[DEFENSE COUNSEL]: She already testified --
“THE COURT: Objection is sustained.” (Italics added.)
After asking Doe questions about her sneaking out at night and hiding
that fact from her parents, defense counsel asked about Doe’s parents being
12 Neither the trial court nor counsel for the parties summarized the
sidebar discussion for the record.
14
strict and not letting Doe go out with friends, including after school. Defense
counsel next asked:
“Q [] Is part of that the cultural situation where they want you to get
good grades?
“A Because I was Vietnamese, they wanted me to get good grades?
“Q Well, that’s a cultural situation. I mean, you’ve talked about there
being a cultural divide. That was one of them, right, that as a culture, the
Vietnamese and Asian people want their kids to get good grades; right?
“A Yes.
“Q And you weren’t getting good grades, were you?
“[PROSECUTOR]: Objection. Relevance.
“THE COURT: Sustained.
“Q (BY [DEFENSE COUNSEL]) They kept you from getting out and
playing with your friends because you weren’t getting good grades; right?
“[PROSECUTOR]: Objection. Relevance.
“THE COURT: Sustained.” (Italics added.)
2. Legal Principles
All relevant evidence is admissible except as otherwise provided by
statute. (Evid. Code, §§ 350, 351.) Relevant evidence includes “evidence
relevant to the credibility of a witness . . . having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210; see also id., § 780.)
Generally, “[a] party may cross-examine a witness about the witness’s
motive and bias.” (People v. Villa (2020) 55 Cal.App.5th 1042, 1050 (Villa),
citing Evid. Code, § 780, subd. (f).) “ ‘[T]he cross-examiner has traditionally
been allowed to impeach, i.e., discredit, the witness,’ including by ‘cross-
examination directed toward revealing possible biases, prejudices, or ulterior
15
motives of the witness.’ [Citation.] ‘The partiality of a witness is subject to
exploration at trial, and is “always relevant as discrediting the witness and
affecting the weight of his testimony.” ’ ” (Villa, at p. 1051.)
“However, the right to cross-examine a witness on potential bias,
prejudice, or ulterior motive isn’t absolute. ‘A trial court may restrict defense
cross-examination of an adverse witness on the grounds stated in Evidence
Code section 352.’ ” (Villa, supra, 55 Cal.App.5th at p. 1051.) “Trial courts
have broad latitude under [Evidence Code] section 352 to exclude such
impeachment evidence, which helps ‘ “prevent criminal trials from
degenerating into nitpicking wars of attrition over collateral credibility
issues.” ’ ” (Ibid.)
“A criminal defendant’s constitutional right to confront witnesses is
violated when the court prohibits the defendant from conducting otherwise
appropriate cross-examination designed to show a prototypical kind of bias on
the witness’s part, and thereby provide the jury with facts from which it could
appropriately draw inferences regarding the witness’s reliability. But not
every restriction on a defendant’s cross-examination violates the
Constitution. The trial court retains wide latitude to restrict repetitive,
prejudicial, confusing, or marginally relevant cross-examination. Unless the
defendant can show that the prohibited cross-examination would have
created a significantly different impression of the witness’s credibility, the
trial court’s exercise of discretion to restrict cross-examination does not
violate the constitutional right of confrontation.” (People v. Sánchez (2016) 63
Cal.4th 411, 450–451 (Sánchez) [citing, among other cases, Delaware v. Van
Arsdall (1986) 475 U.S. 673, 680]; see also Olden v. Kentucky (1988) 488 U.S.
227, 232; People v. Brown (2003) 31 Cal.4th 518, 545.)
16
On appeal, we presume the trial court’s evidentiary ruling is correct,
and the appellant bears the burden of demonstrating error. (People v.
Anthony (2019) 32 Cal.App.5th 1102, 1139–1140.) Generally, “[a] trial court’s
ruling to admit or exclude evidence offered for impeachment is reviewed for
abuse of discretion and will be upheld unless the trial court ‘exercised its
discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” (People v. Ledesma (2006) 39
Cal.4th 641, 705; see also People v. Clark (2011) 52 Cal.4th 856, 932.)
“ ‘ “[W]e review the [trial court’s] ruling, not the court’s reasoning and, if the
ruling was correct on any ground, we affirm.” ’ ” (People v. Brooks (2017) 3
Cal.5th 1, 39.)
A “ ‘miscarriage of justice’ should be declared only when the court,
‘after an examination of the entire cause, including the evidence,’ is of the
‘opinion’ that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
3. Analysis
Doan contends the trial court abused its discretion and violated Doan’s
constitutional right to confront witnesses by sustaining the prosecutor’s
objections to defense counsel’s question about Doe cutting classes and two
questions about Doe’s grades. Doan argues, “[i]t was not enough to give ad
hoc explanations of [Doe]’s 2017 report to [T.L.] based on her father’s
discovery of a boyfriend, but the broader context of [Doe]’s poor performance
in school was a part and parcel of the evidence that could motivate a strong
enough bias to produce a fabrication of so momentous a charge.” Doan
further notes the apparent change in the court’s “mind about cutting classes”
between its pretrial ruling and Doe’s cross-examination at trial. Doan
17
contends that the curtailment of his cross-examination of Doe was prejudicial
under the standard for constitutional error (Chapman v. California (1967)
386 U.S. 18, 23–24) as well as the standard for state law error (Watson,
supra, 46 Cal.2d at p. 836).
As a preliminary matter, we agree with the Attorney General that the
trial court’s pretrial ruling permitting defense counsel to ask Doe if she was
cutting class did not prevent the court from changing its ruling during trial.
(See People v. McVey (2018) 24 Cal.App.5th 405, 413–414, italics omitted
[“[T]he trial ‘judge is free, in the exercise of sound judicial discretion, to alter
a previous in limine ruling.’ ”].) In addition, during the pretrial hearings,
Doan’s defense counsel repeatedly referred to Doe cutting class in the context
of her being discovered by Doan at the park during daytime. Given Doe’s
subsequent testimony that the park incident occurred at night, the trial court
might have reasonably decided that the probative value of any generalized
class cutting (a relatively mundane act for a teenager) was substantially
outweighed by the potential of an undue consumption of time about whether
Doe was, in fact, cutting classes. Likewise, the court might have reasonably
decided that the probative value of Doe’s grades was minimal as to her
credibility and may have resulted in an undue consumption of time to
determine the exact state of Doe’s grades. Thus, we are not persuaded that
the court acted in an arbitrary, capricious, or patently absurd manner when
it sustained the prosecutor’s objections to the questions about class cutting
and grades.
Even assuming arguendo that the trial court abused its discretion by
curtailing Doan’s cross-examination about possible class cutting and bad
grades, Doan fails to demonstrate any violation of his constitutional
confrontation right and that the state law evidentiary error was prejudicial.
18
A trial court does not infringe on a defendant’s confrontation right by
excluding impeachment regarding a matter that has only slight probative
value on the issue of credibility. (See Sánchez, supra, 63 Cal.4th at p. 451.)
The fact that Doe might have been cutting class and receiving poor grades
would have had a marginal effect on the jury’s view of Doe’s credibility under
the instant circumstances. The trial court gave Doan’s defense counsel wide
latitude in cross-examining Doe about the park incident and Doe’s concern
that her mother would learn about it. In addition, counsel was permitted to
elicit from Doe that she often sneaked out of the house at night and believed
that her mother and father would be angry at her for doing so. Doe further
acknowledged that Vietnamese people generally “want their kids to get good
grades” and that Doe’s mother wanted Doe to “get an education and work
hard.” Hence, through cross-examination, Doan’s counsel was able to give
substance to his proffered theory that Doe was incredible because “it’s a
situation where, when this all came down [in 2017], she was mad at dad.”
That Doe may have cut class and received poor grades would not have
created a significantly different impression of Doe’s alleged bias against Doan
or her motivation to fabricate sexual abuse allegations. We thus discern no
violation of Doan’s constitutional right to confront and cross-examine Doe.
(See People v. Jennings (1991) 53 Cal.3d 334, 372 [no constitutional violation
when the evidence “would impeach the witnesses on collateral matters and
was only slightly probative of their veracity”].)
Having concluded that Doan has not shown any constitutional violation
in the curtailment of his cross-examination of Doe, and assuming arguendo
that the trial court erred under state law in precluding defense counsel from
asking questions about Doe’s class cutting and grades, we decide that Doan
19
fails to demonstrate he was prejudiced by the court’s rulings under the
Watson standard.
The jury heard a significant amount of evidence about the events
surrounding Doe’s disclosure of abuse in 2017, as well as her ultimate report
of Doan’s abuse to the police in 2023. Additionally, during closing argument,
defense counsel extensively attacked Doe’s credibility. For example, counsel
claimed that Doe had fabricated the abuse allegations to “turn the tables on
the person who wants to send them to Vietnam.” Counsel further argued
that because Doe’s mother would have known Doe was “getting bad grades”
and “sneaking out at night,” Doe’s claim that she was concerned about
upsetting her mother “just does not ring true.” Counsel added: “I would
submit to you sneaking out at night, not doing well in school, hanging out
with friends when you’re not supposed to, disobeying rules, you are a bad kid.
You’re not a good kid in the sense that you get good grades, which is what the
Vietnamese culture and Asian culture would like. [¶] They would like their
kids and children to succeed. They want them to get good grades. And
maybe that’s what [Doe] is -- kind of doesn’t want to conform to that and
blames everything on that culture.” When urging the jurors to acquit Doan of
all charges, counsel advised the jurors not to “be fooled by the fact that we
have a young woman testifying about things that are pretty ugly. Nothing
happened.”
Considering all the evidence and argument presented to the jury
regarding Doe’s credibility and the charged offenses, we conclude it is not
reasonably probable that a result more favorable to Doan would have
resulted in the absence of the complained of curtailment of cross-
examination.
20
B. Challenge to Unanimity Instruction (CALCRIM 3501)
Doan contends the trial court erred by instructing the jurors with
CALCRIM 3501 regarding counts 1 through 4 because the condition
precedent for this instruction as stated in People v. Jones (1990) 51 Cal.3d
294, 321–322 (Jones) was not met. Doan further asserts that the alleged
instructional error amounts to state and federal constitutional error that was
prejudicial.
The Attorney General responds that Doan’s claim of error is forfeited
because he failed to object to the instruction at trial. The Attorney General
further contends the trial court properly instructed the jurors with CALCRIM
3501 because Doe provided generic testimony regarding hundreds of
incidents that could constitute a forcible lewd or lascivious act on a child
under age 14. The Attorney General also argues that if any error occurred, it
was harmless.
1. Additional Background
During trial, the trial court and counsel for the parties discussed the
jury instructions off the record. The court subsequently stated on the record
that its packet of final jury instructions “was stipulated by all.” The court
asked the parties if they wished to place anything on the record regarding
their discussion of the instructions. Defense counsel declined the invitation
and did not state any objections to the stipulated instructions.
Regarding the four forcible lewd or lascivious act charges (counts 1–4),
the trial court instructed the jurors on unanimity with CALCRIM 3501 as
follows: “The defendant is charged with [l]ewd or [l]ascivious [a]ct by [f]orce
or [f]ear on a [c]hild [u]nder 14 [y]ears in [c]ounts 1-4 sometime during the
period of April 1, 2007 to March 31, 2015. [¶] The People have presented
evidence of more than one act to prove that the defendant committed these
21
offenses. You must not find the defendant guilty unless: [¶] 1. You all agree
that the People have proved that the defendant committed at least one of
these acts and you all agree on which act he committed for each offense; [¶]
OR [¶] 2. You all agree that the People have proved that the defendant
committed all the acts alleged to have occurred during this time period and
have proved that the defendant committed at least the number of offenses
charged.”
The trial court further instructed the jurors with CALCRIM No. 3515,
stating, “Each of the counts charged in this case is a separate crime. You
must consider each count separately and return a separate verdict for each
one.”
Regarding the “force, violence, duress, menace, or fear” element of
counts 1 through 4 (force or fear element), the trial court instructed that
“[d]uress means a direct or implied threat of force, violence, danger, hardship,
or retribution that causes a reasonable person to do or submit to something
that he or she would not otherwise do or submit to. When deciding whether
the act was accomplished by duress, consider all the circumstances, including
the age of the child and her relationship to the defendant.” (Italics omitted.)
The court also instructed that “[a]n act is accomplished by fear if the child is
actually and reasonably afraid. It is not a defense that the child may have
consented to the act.” (Italics omitted.)
In closing argument, regarding counts 1 through 4, the prosecutor
contended that Doe had “described for [the jurors] hundreds of such acts” of
touching that “was a near nightly occurrence for about three years.” The
prosecutor focused on Doe’s fear of Doan and her helplessness during this
period.
22
Seemingly referring to CALCRIM 3501, the prosecutor explained: “You
need to look at this instruction. You need to decide which of one or two
categories we’re in. And it’s the People’s position that we’re in [c]ategory 2.
The evidence is overwhelming. It is overwhelming. And the defendant is
charged with four counts. [¶] And, again, I won’t spend too much time on
this, but, again, hundreds of times, hundreds of individual offenses night
after night after night. [¶] The defendant is guilty of [c]ounts 1 through 4
and the lesser included.”
Defense counsel did not address the unanimity instruction in his
closing argument. Regarding counts 1 through 4, counsel asserted, “If you
believe [Doe], if anything happened, there was certainly no force or violence
used.” Counsel additionally mentioned that the jury instructions provided for
the lesser offense under section 288(a)(1), which does not include a force or
fear element and argued that “the People have not proven that there was any
force or fear used.” Counsel further challenged Doe’s credibility stating, inter
alia, “There was nothing. Nothing to support or corroborate [Doe]’s testimony
that . . . these things happened.”
2. Legal Principles
The state and federal constitutions require unanimous verdicts.
(People v. Russo (2001) 25 Cal.4th 1124, 1132; Ramos v. Louisiana (2020) 590
U.S. 83, 93.) “[T]he jury must agree unanimously the defendant is guilty of a
specific crime.” (Russo, at p. 1132, italics omitted.) “Therefore, cases have
long held that when the evidence suggests more than one discrete crime,
either the prosecution must elect among the crimes or the court must require
the jury to agree on the same criminal act.” (Ibid.) The unanimity
requirement “ ‘is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the
23
defendant committed.’ ” (Ibid.) Where it is warranted, the court must give a
unanimity instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153,
1199.)
In Jones, our Supreme Court addressed unanimity when “nonspecific
or ‘generic’ ” testimony is presented in a child molestation case. (Jones,
supra, 51 Cal.3d at p. 299.) The court observed that generic testimony often
occurs when the defendant “lives with his victim” and the victim “testifies to
repeated acts of molestation occurring over a substantial period of time but,
lacking any meaningful point of reference, is unable to furnish many specific
details, dates or distinguishing characteristics as to individual acts or
assaults.” (Ibid.)
Regarding the sufficiency of generic testimony, the California Supreme
Court explained that the victim “must describe the kind of act or acts
committed with sufficient specificity, both to assure that unlawful conduct
indeed has occurred and to differentiate between the various types of
proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or
sodomy). Moreover, the victim must describe the number of acts committed
with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., ‘twice a month’ or ‘every time we went
camping’). Finally, the victim must be able to describe the general time
period in which these acts occurred (e.g., ‘the summer before my fourth
grade,’ or ‘during each Sunday morning after he came to live with us’), to
assure the acts were committed within the applicable limitation period.”
(Jones, supra, 51 Cal.3d at p. 316.)
The Jones court “reject[ed] the contention that jury unanimity is
necessarily unattainable where testimony regarding repeated identical
offenses is presented in child molestation cases. In such cases, although the
24
jury may not be able to readily distinguish between the various acts, it is
certainly capable of unanimously agreeing that they took place in the number
and manner described.” (Jones, supra, 51 Cal.3d at p. 321.)
The Jones court announced the following rule for unanimity
instructions in cases involving generic testimony: “In a case in which the
evidence indicates the jurors might disagree as to the particular act
defendant committed, the standard unanimity instruction should be given.
[Citation.] But when there is no reasonable likelihood of juror disagreement
as to particular acts, and the only question is whether or not the defendant in
fact committed all of them, the jury should be given a modified unanimity
instruction which, in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction if the jury
unanimously agrees the defendant committed all the acts described by the
victim.” (Jones, supra, 51 Cal.3d at pp. 321–322.)
CALCRIM 3501 is a “modified instruction” based on the unanimity
principles described in Jones. (People v. Fernandez (2013) 216 Cal.App.4th
540, 555 (Fernandez).) CALCRIM 3501 “is an alternative instruction to” the
standard unanimity instruction, CALCRIM No. 3500. (Fernandez, at p. 556.)
“CALCRIM No. 3501 affords two different approaches for the jury to reach
the required unanimity. The first is the same as that set forth in CALCRIM
No. 3500: agreement as to the acts constituting each offense. But unanimity
may also be found under CALCRIM No. 3501 if the jury agrees ‘that the
People have proved that the defendant committed all the acts alleged to have
occurred during this time period [and have proved the defendant committed
at least the number of offenses charged].’ ” (Ibid.)
CALCRIM No. 3500 should be given when “ ‘the evidence indicates the
jurors might disagree as to the particular act defendant committed.’ ”
25
(Fernandez, supra, 216 Cal.App.4th at p. 555.) CALCRIM 3501 should be
given “ ‘when there is no reasonable likelihood of juror disagreement as to
particular acts, and the only question is whether or not the defendant in fact
committed all of them.’ ” (Fernandez, at pp. 555–556.)
“We review assertions of instructional error de novo. [Citation.]
Whether the trial court should have given a ‘particular instruction in any
particular case entails the resolution of a mixed question of law and fact,’
which is ‘predominantly legal.’ [Citation.] Accordingly, we examine the issue
without deference.” (People v. Selivanov (2016) 5 Cal.App.5th 726, 751.)
3. Analysis
We need not consider whether Doan’s failure to object to CALCRIM
3501 forfeited his claim of instructional error because, assuming arguendo
that Doan did not forfeit his claim, the trial court did not err by instructing
the jurors with CALCRIM 3501.
Doan asserts that the “evidence of force or duress” for the entire period
of alleged sexual abuse “was not strong,” and it was “even slighter” for the
“pre-pubescent, pre-menstruation period of time.” He further asserts that the
jurors “could indeed entertain a reasonable doubt that any of the touchings
occurring before [Doe] was in the sixth grade were in fact forcible or under
duress. There was, therefore, a reasonable likelihood of disagreement about
the totality of the acts attested by [Doe], and it was inappropriate to give the
second Jones alternative in CALCRIM No. 3501 in this case.” Additionally,
Doan claims that under CALCRIM 3501, the jurors might not have returned
unanimous verdicts because “one or more jurors who rejected the
prepubescent acts as constituting the crimes charged in counts 1 through 4
could vote for guilt along with the other jurors who believed all the acts were
committed as charged in counts 1 through 4.”
26
We are not persuaded that the trial court erred under Jones. On this
record, there is no reasonable likelihood of juror disagreement regarding the
particular acts Doan committed for counts 1 through 4. As detailed ante
(pt. I.B.), Doe testified generally that, beginning when she was eight or nine
years old and in the second (2008–2009 school year) or third grade (2009–
2010 school year), Doan touched her breasts almost daily while tucking her
into bed. He also licked her breasts many times until she was at least in
sixth grade (2012–2013 school year). Doe testified further about an incident
of breast touching that occurred during the daytime when she was in the
sixth grade. Doe additionally described the corporal punishment that Doan
perpetrated against her, his threats to tell Doe’s mother about any
misbehavior, Doan’s upset when Doe asked Doan to stop touching her when
she was in the fifth grade, and Doe’s feeling of helplessness in the face of
Doan’s abuse.
For his part, Doan offered no evidence to distinguish the acts of
molestation. He argued principally that Doe was lying about all the alleged
molestation and, alternatively, that the prosecution had not proved the force
or fear element for counts 1 through 4. The jurors rejected the lesser,
nonforcible offense (§ 288(a)(1)) and found Doan guilty as charged.
Under the instant factual circumstances, “it is unlikely that the jury
would have a reasonable disagreement with respect to any particular act or
instance of abuse, or could reasonably conclude that some of the victims’
testimony was true but other parts were not.” (Fernandez, supra, 216
Cal.App.4th at p. 558.) Doe provided generic testimony about repeated,
indistinguishable acts of molestation by Doan as he put her to bed and
specific testimony about a touching that occurred while Doe was using a
computer. The evidence presented the jurors with the choice of either
27
believing that Doan committed all the numerous, repetitive acts described by
Doe or disbelieving Doe’s testimony completely.
That Doan also may have touched Doe after her first menstrual cycle in
the sixth grade—which caused Doe to have a greater understanding of and
discomfort with the touching—does not indicate that the jurors might have
disagreed about the acts Doan committed. Doan’s repetitive acts of touching
were of the same nature and committed in a manner that sufficiently proved
the force or fear element as to all his acts. (See People v. Soto (2011) 51
Cal.4th 229, 246 [“Because duress is measured by a purely objective
standard, a jury could find that the defendant used threats or intimidation to
commit a lewd act without resolving how the victim subjectively perceived or
responded to this behavior.”]; People v. Thomas (2017) 15 Cal.App.5th 1063,
1072–1073 [“When the victim is young and is molested by her father in the
family home, duress will be present in all but the rarest cases.”].)
Accordingly, we conclude the trial court properly instructed the jurors
using CALCRIM 3501 for counts 1 through 4. (See Fernandez, supra, 216
Cal.App.4th at pp. 557–558.)
C. Sentencing Claims
In his initial appellate briefing, Doan challenges the trial court’s
imposition of upper term sentences on counts 1 through 4, alleging that the
aggravating circumstances constituted elements of the charged offense. Doan
additionally claims that his defense counsel was prejudicially ineffective for
not objecting to the court’s failure to state its reasons for imposing a
consecutive sentence on count 6.
28
In response to this court’s request for supplemental briefing,13 Doan
contends the 10-year upper term sentences imposed on counts 1 through 4
violate the prohibition against ex post facto laws. The Attorney General
agrees.
For the reasons below, we decide that the sentences on counts 1
through 4 violate the ex post facto prohibition and this matter should be
remanded for a full resentencing. Given that decision, we need not consider
Doan’s ineffective assistance of counsel claim; that claim has been rendered
moot. However, for the benefit of the trial court and parties on remand, we
address Doan’s challenge to the imposition of upper terms on counts 1
through 4 and conclude that the aggravating circumstances do not constitute
elements of the charged offense. Hence, on remand, the court may—if it
elects to do so—rely on the aggravating circumstances to impose upper terms
on counts 1 through 4.
1. Ex Post Facto Violation (Counts 1–4)
Former section 288(b)(1) provided a sentencing triad of three, six, or
eight years. (See Stats. 2004, ch. 823, § 7, eff. Jan 1, 2005–Sept. 8, 2010.)
Effective September 9, 2010, the Legislature amended section 288(b)(1) to
increase the triad to five, eight, or 10 years. (Stats. 2010, ch. 219, § 7.)
The trial court instructed the jurors that the offenses charged in counts
1 through 4 (§ 288(b)(1)) allegedly occurred sometime between April 1, 2007,
13 We asked the parties to address whether: (1) the 10-year prison
terms imposed on counts 1 through 4 violated the prohibition against ex post
facto laws because the applicable sentencing triad increased from three, six,
or eight years to five, eight, or 10 years during the period of the charged
offenses (Apr. 1, 2007–Mar. 31, 2015); and (2) the matter should be remanded
to the trial court for a new sentencing hearing.
29
and March 31, 2015. The jurors made no specific finding about the dates of
the acts on which they convicted Doan for counts 1 through 4.
At Doan’s sentencing hearing, the trial court imposed an aggregate
prison term of 52 years, which included four, consecutive 10-year sentences
for the forcible lewd or lascivious act convictions.
Doan and the Attorney General agree that the 10-year prison terms
imposed on counts 1 through 4 violated the prohibition against ex post facto
laws, as do we.
The jury made no finding that the offenses in counts 1 through 4
occurred before the Legislature increased the sentencing triad on September
9, 2010. In addition, the record does not establish that the jury must have
based its verdicts on acts occurring after that date. Thus, we conclude the
trial court violated the prohibition against ex post facto laws by imposing 10-
year terms for Doan’s convictions on counts 1 through 4. (See People v.
Hiscox (2006) 136 Cal.App.4th 253, 257–262 (Hiscox).)
As to the remedy for the ex post facto violation, we exercise our
discretion to vacate Doan’s sentence and remand the matter for full
resentencing. (See Hiscox, supra, 136 Cal.App.4th at p. 262; see also People
v. Buycks (2018) 5 Cal.5th 857, 893; § 1260.) On remand, the trial court
should impose prison terms on counts 1 through 4 in accordance with the
triad provided in former section 228(b)(1) (i.e., three, six, or eight years).
(Stats. 2004, ch. 823, § 7.)
2. Challenge to Aggravating Circumstances (Counts 1–4)
Notwithstanding our decision to vacate Doan’s sentence and remand
this matter for resentencing, we address Doan’s additional claim that the
trial court erred and violated his due process rights by imposing upper terms
for his convictions on counts 1 through 4. Doan contends the two aggravating
30
circumstances used to authorize the upper terms—that Doe “was particularly
vulnerable” (rule 4.421(a)(3)) and Doan “took advantage of a position of trust
or confidence to commit the offense” (rule 4.421(a)(11))—were subsumed by
the duress element of section 288(b)(1).
As noted ante (pt. I.C.), in a bifurcated proceeding, the trial court found
true both aggravating circumstances. In support of the aggravators, the
prosecutor argued that “between the ages of approximately [eight] or [nine] to
12, [Doe] was systemically, over the course of three years, almost nightly,
subjected to sexual abuse by her father” and “isolated in a bedroom,” and
“these offenses happened at night when other members of the family were not
there.” The prosecutor added that Doe “was subjected to very strict and
harsh discipline in that house notwithstanding the sexual abuse,” “was at her
father’s mercy” because her mother was at work, and “was not in a position
whatsoever to resist, certainly not physically or even via words, verbally,
towards her father who, again, exercised such stern discipline over her.”
Defense counsel argued that the aggravating circumstances should be
disallowed because “they’re part and parcel of the charges themselves” and
Doan did not “use excessive force in any way to get [Doe] to comply.”
The trial court rejected defense counsel’s argument stating, “factually,
the [c]ourt does find the fact that the victim was particularly vulnerable to be
true and the fact that Mr. Doan took advantage of a position of trust or
confidence to commit the offense is true based on the facts articulated by the
People.” At sentencing, the trial court noted the two aggravating factors and
imposed upper terms on counts 1 through 4.
We are not persuaded by Doan’s argument that the trial court erred in
relying on the aggravating circumstances to impose upper terms on counts 1
through 4. A court may impose an upper term sentence based on a single
31
properly proven aggravating circumstance. (See People v. Lynch (2024) 16
Cal.5th 730, 764.) Rule 4.420(h) provides, “A fact that is an element of the
crime on which punishment is being imposed may not be used to impose a
particular term.” (See also People v. Clark (1992) 12 Cal.App.4th 663, 666
(Clark); People v. Wilks (1978) 21 Cal.3d 460, 470.) “A sentencing factor is
only an element of the offense, however, if the crime as defined by statute
cannot be accomplished without performance of the acts which constitute
such factor.” (People v. Burbine (2003) 106 Cal.App.4th 1250, 1262; see also
People v. Zamora (1991) 230 Cal.App.3d 1627, 1636 [The phrase “ ‘element of
the offense’ ” refers to “an essential component of the legal definition of the
crime considered in the abstract.”].) “[W]here the facts surrounding the
charged offense exceed the minimum necessary to establish the elements of
the crime, the trial court can use such evidence to aggravate the sentence.
[Citation.] Stated another way, rule 420(d)[14] does not preclude a court from
using facts to aggravate a sentence when those facts establish elements not
required for the underlying crime.” (People v. Castorena (1996) 51
Cal.App.4th 558, 562, italics & boldface omitted (Castorena).)
Section 288(b)(1) provides, “A person who commits an act described in
subdivision (a) [i.e., a lewd or lascivious act on a child under 14] by use of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person, is guilty of a felony.” “ ‘ “ ‘[D]uress’ ” ’
as used in section 288, subdivision (b)(1), ‘ “means a direct or implied threat
of force, violence, danger, hardship or retribution sufficient to coerce a
reasonable person of ordinary susceptibilities to perform an act which
14 A precursor to rule 4.420(h), former rule 420(d) provided, “A fact that
is an element of the crime shall not be used to impose the upper term.” (See
rule 420(d), as adopted Jan. 1, 1991.)
32
otherwise would not have been performed, or acquiesce in an act to which one
otherwise would not have submitted.” ’ [Citations.] ‘[D]uress is measured by
a purely objective standard . . .. [T]he focus must be on the defendant’s
wrongful act, not the victim’s response to it.’ ” (People v. Martinez (2024) 105
Cal.App.5th 178, 189.) “Fear” as defined in section 288(b)(1) means: “ ‘(1) “A
feeling of alarm or disquiet caused by the expectation of danger, pain,
disaster, or the like; terror; dread; apprehension” [citation] and (2) “Extreme
reverence or awe, as toward a supreme power.” ’ ” (People v. Cardenas (1994)
21 Cal.App.4th 927, 939–940; see also CALCRIM No. 1111, italics omitted
[“An act is accomplished by fear if the child is actually and reasonably afraid
[or (he/she) is actually but unreasonably afraid and the defendant knows of
(his/her) fear and takes advantage of it].”].)
“[F]or purposes of finding the aggravating factor of particular
vulnerability, ‘ “[p]articularly . . . means in a special or unusual degree, to an
extent greater than in other cases. Vulnerability means defenseless,
unguarded, unprotected, accessible, assailable, one who is susceptible to the
defendant’s criminal act.” [Citation.]’ [Citation.] Thus, a crime victim can be
deemed particularly vulnerable as an aggravating factor ‘for reasons not
based solely on age, including the victim’s relationship with the defendant
and his abuse of a position of trust.’ ” (People v. DeHoyos (2013) 57 Cal.4th 79,
154; see also CALCRIM No. 3226.) “ ‘[P]articular vulnerability’ is determined
in light of the ‘total milieu in which the commission of the crime occurred.’ ”
(People v. Dancer (1996) 45 Cal.App.4th 1677, 1694 (Dancer), disapproved on
another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) “[A]
victim’s extremely young age together with other circumstances like the time
and location of the offense can establish ‘particular vulnerability’ as an
aggravating factor.” (Dancer, at p. 1694.)
33
The aggravating factor for taking “advantage of a position of trust or
confidence to commit the offense” (rule 4.421(a)(11)) focuses on the
defendant’s “ ‘ “special status” ’ vis-à-vis” the victim. (Dancer, supra, 45
Cal.App.4th at p. 1694.) The CALCRIM instruction for this aggravating
factor provides in pertinent part: “To prove this allegation, the People must
prove that: [¶] 1. (Prior to/During) the commission of the crime, the
defendant (had/developed) a relationship with [the victim]; [¶] 2. This
relationship allowed the defendant to occupy a position of trust or caused [the
victim] to have confidence in the defendant; [¶] AND [¶] 3. The defendant
took advantage of this position of trust or confidence to commit the crime.”
(CALCRIM No. 3233.)
The aggravating circumstances found true in this case were not
identical to the elements of the forcible lewd or lascivious act offenses and
thus could be properly considered in aggravation for sentencing. A
reasonable jury could find duress and fear under section 288(b)(1) without
regard to whether the victim was unusually susceptible to the defendant’s
criminal act or had a relationship with the defendant that allowed the
defendant to occupy a position of trust or caused the victim to have
confidence. (See Burbine, supra, 106 Cal.App.4th at pp. 1262–1263; Clark,
supra, 12 Cal.App.4th at p. 666.) Likewise, the evidence described by the
prosecutor at the bifurcated court trial provided sufficient grounds for the
trial court to find that the aggravating facts surrounding counts 1 through 4
“exceed[ed] the minimum necessary to establish the elements of the crime.”
(Castorena, supra, 51 Cal.App.4th at p. 562.)
We are not persuaded by Doan’s assertion that the aggravating factors
“comprised a single factor that was subsumed into the element of duress.”
For this assertion, Doan cites People v. Fernandez (1990) 226 Cal.App.3d 669.
34
That decision, however, is factually inapposite. The trial court in Fernandez
imposed a sentence of 330 years in prison, supported only by its incorporation
by reference of the aggravating factors listed in the probation report, which
contained a verbatim list of the factors stated in the California Rules of
Court. (Id. at pp. 677–681.) By contrast, the trial court in the instant case
rendered its true findings based on specific facts described at the bifurcated
court trial which demonstrate that the aggravating factors are not
coextensive with each other or the duress element.
We conclude the trial court did not err in relying on its findings that
Doe was particularly vulnerable and Doan took advantage of a position of
trust or confidence to commit the offense when imposing sentences on counts
1 through 4. At Doan’s resentencing, the court may (if it elects to do so) rely
on the aggravating circumstances that it found true to impose upper terms on
counts 1 through 4. We express no opinion on which term the court should
impose.
III. DISPOSITION
The judgment is reversed, Doan’s sentence is vacated, and the matter is
remanded for a new sentencing hearing consistent with the views expressed
herein. Doan’s convictions are affirmed.
35
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P. J.
____________________________________
Chung, J.
H052907
People v. Doan
Judge of the Santa Clara County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.