Filed 7/2/26 P. v. Popoca CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D087444
Plaintiff and Respondent,
v. (Super. Ct. No. SWF2200481)
SIMEON HERNANDEZ POPOCA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Frederick Paul Dickerson III, Judge. Affirmed.
Rachel Varnell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A.
Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff
and Respondent.
Simeon Hernandez Popoca (Hernandez) was convicted by a jury of nine
felonies stemming from his sexual encounters with three girls no older than
14 years old, including one count of forcible rape. The evidence included
testimony from the victims, relatives to whom the victims reported
Hernandez’s conduct before disclosing it to the police, and an expert on
child sexual abuse accommodation syndrome (CSAAS or the syndrome).
Hernandez claims there was insufficient evidence that he used force as
required to convict him of rape, the jury was misinstructed how to use the
relatives’ testimony, and the CSAAS evidence was inadmissible. Disagreeing
in all respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2024, a Riverside County jury convicted Hernandez of
multiple offenses stemming from his sexual encounters more than 20 years
earlier with three girls, none of whom was older than 14: one count of
forcible rape of Jane Doe A.C. (Jane) that occurred between August 1989
and August 1990 (Pen. Code, § 261, former subd. (a)(2); see Stats. 1985,
ch. 283, § 1, p. 4592), seven counts of committing lewd acts on another minor
under the age of 14 from September 1987 to September 1995 (id., § 288, subd.
(a)), and one count of committing a lewd act on a third minor under the age
14 between May 2001 and May 2002 (ibid.). The court imposed a 24-year
sentence consisting of an eight-year upper term for the rape conviction and
consecutive two-year sentences (each one-third of the midterm) for the
remaining eight lewd act convictions.
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DISCUSSION
A. Sufficiency of the Evidence
1. Additional Background
In a criminal information filed in July 2023, the People alleged that
Hernandez, then 19 years old, forcibly raped Jane when she was around 11
years old. As Jane described the incident, Hernandez “came into the house.
I was sitting on the couch. And he came over, and he just started touching
me, trying to undress me.” He “unzipped [her] pants and rolled them down”
and opened her button-up shirt. At some point, Jane went from sitting on the
couch to lying on her back with Hernandez on top of her. Hernandez
penetrated Jane’s vagina with his penis, which caused her to “fe[el] some
pain,” “jump[],” and “yelp[].” Jane, who said that she “didn’t know what was
happening,” looked away from Hernandez during this encounter because she
“didn’t want to see.”
Hernandez did not use his arms or hands to pin Jane down. When
asked whether she struggled or fought back, Jane said that she “wasn’t doing
anything” and just “stayed there … limp.” She could not remember whether
they said anything to each other during this incident.
Sometime after Jane turned 15 years old, she told her parents about
this and other incidents involving Hernandez.1 In front of Jane and her
mother, Jane’s father confronted Hernandez about “touching” his daughter.
According to Jane, Hernandez initially denied doing so but ultimately
“shrugged in shame” and said, “ ‘Yes I did do it. But I’m sorry.’ ” As Jane’s
1 Jane testified that Hernandez occasionally touched her under her
clothes from the time she was eight or nine years old until she was 12, but
the charged incident was the only one that involved intercourse.
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mother characterized it, Hernandez admitted to “raping” her daughter but
did not apologize. Janes’s father testified Hernandez denied that he had
touched Jane but nonetheless apologized, although he told one detective
during the investigation that Hernandez admitted to sexually assaulting
Jane.
For his part, Hernandez testified that he lived at Jane’s house for a
few weeks in 1986 and 1987 and occasionally visited it thereafter. But he
denied ever touching Jane inappropriately or making the admissions or
apologies her parents described.
2. Hernandez’s Use of Force
To convict Hernandez of the charge of raping Jane, the People had to
prove beyond a reasonable doubt that he had sexual intercourse with her
against her will through “force, violence, or fear of immediate and unlawful
bodily injury on the person or another.” (Pen. Code, § 261, former subd. (2);
CALJIC No. 10.00.) According to Hernandez, Jane’s testimony failed to show
that he used any of these means to have sex with her. The People counter
that there was sufficient evidence that he used force to overcome Jane’s will.
When resolving a challenge to the sufficiency of the evidence, “we do
not determine the facts ourselves” nor do we “reweigh evidence or reevaluate
a witness’s credibility.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
“Rather, we ‘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.’ ” (Ibid.)
“We presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.” (Ibid.) “ ‘[I]f the circumstances
reasonably justify the jury’s findings, the judgment may not be reversed
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simply because the circumstances might also reasonably be reconciled with
a contrary finding.’ ” (Ibid.)
“ ‘Force’ ” as used in the rape statute means that “ ‘the defendant used
physical force of a degree sufficient to support a finding that the act of sexual
intercourse was against the will of the [victim].’ ” (People v. Griffin (2004) 33
Cal.4th 1015, 1023–1024.) Accordingly, “in a forcible rape prosecution the
jury determines whether the use of force served to overcome the will of the
victim to thwart or resist the attack, not whether the use of such force
physically facilitated sexual penetration or prevented the victim from
physically resisting her attacker.” (Id. at p. 1027.) This means that “even
conduct which might normally attend sexual intercourse, when engaged in
with force sufficient to overcome the victim’s will, can support a forcible rape
conviction.” (Ibid.)
We agree with the People that the evidence viewed in the light most
favorable to the judgment supported a finding that Hernandez used force.
Jane testified that she went from sitting to lying on her back while
Hernandez touched and undressed her, looked away from him and went
limp when he was on top of her, and was startled when he penetrated her
vagina because she did not know what was happening. These facts supported
an inference that the encounter was against Jane’s will. She also testified to
facts showing that “ ‘some force was used by defendant in the penetration and
physical movement involved and, at least in the beginning, it was painful for
her,’ ” evidence that “supported a finding that a rape had been against the
victim’s will.” (In re Jose P. (2005) 131 CalApp.4th 110, 117.) The finding is
also supported by testimony that Hernandez admitted and apologized to
Jane’s parents for the abuse.
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B. CSAAS Evidence
1. Additional Background
The People moved in limine to admit expert testimony of psychologist
Dr. Jody Ward about CSAAS in their case-in-chief. CSAAS was developed in
1983 in an attempt to explain the seemingly counterintuitive behaviors
exhibited by child victims of ongoing sexual abuse.2 California courts have
admitted evidence about the syndrome “for the limited purpose of disabusing
the fact finder of common misconceptions it might have about how child
victims react to sexual abuse” (In re S.C. (2006) 138 Cal.App.4th 396, 418),
such as a delay in reporting (People v. Patino (1994) 26 Cal.App.4th 1737,
1744–1745 (Patino)) or certain other “seemingly self-impeaching behavior”
(People v. McAlpin (1991) 53 Cal.3d 1289, 1301 (McAlpin)).
Dr. Ward’s testimony was admissible, the People argued, because the
victims delayed disclosing Hernandez’s sexual abuse to law enforcement and,
by the time the court heard their motion, evidence had been elicited of other
conduct consistent with the syndrome. Ward, who did not know any of the
facts of the case, was expected to testify about the CSAAS behaviors
corresponding to this conduct. Hernandez contended that expert testimony
was not needed because the same misconceptions about the behavior of child
sex abuse victims that existed when the syndrome was identified had not
2 These behaviors—also called “ ‘myths’ ” or “misconceptions” (People v.
Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias))—are: (1) secrecy,
(2) helplessness, (3) “entrapment and accommodation,” (4) delayed
“unconvincing” disclosure, and (5) retraction or recantation.
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been shown to persist today. He also asserted that CSAAS evidence does not
satisfy the Kelly3 test for admissibility.
The court granted the People’s motion and allowed Dr. Ward to testify
about four of the five CSAAS myths. In addition to discussing those myths,
Ward cautioned that “we can’t take these behaviors and try to diagnose
whether or not sexual abuse occurred because many of these behaviors are
seen in other dysfunctional family situations.” And consistent with this
limitation, Ward did not offer any opinion as to Hernandez’s guilt.
After Dr. Ward was excused, the court read CALCRIM No. 1193 to the
jurors to limit their use of her testimony. They were instructed that CSAAS
evidence is “only offered to explain certain behavior of an alleged victim of
child sexual abuse” for the purpose of evaluating the believability of
Hernandez’s victims. They were also warned that Ward’s testimony was “not
evidence that the defendant committed any of the crimes charged against
him or any conduct or crimes with which he was not charged.” (CALCRIM
No. 1193.) Although this instruction was not repeated after the close of
evidence, the judge reminded jurors then that “certain evidence was admitted
for a limited purpose.” (CALCRIM No. 303.) The prosecutor referred to these
instructions during her closing argument before telling the jury, “Dr. Ward
can’t come in and tell you, ‘Yes, these women are telling the truth.’ ”
3 See People v. Kelly (1976) 17 Cal.3d 24. Once known as the “Kelly/Frye
test” (see Frye v. United States (D.C. Cir. 1923) 293 F. 1013), it is now “the
Kelly rule in California after changes to the Federal Rules of Evidence that
superseded Frye.” (People v. Nieves (2021) 11 Cal.5th 404, 442, fn. 8.) Under
the Kelly test, “when expert testimony based on a new scientific technique is
offered, the proponent of the testimony must first establish the reliability of
the method and the qualifications of the witness.” (People v. Harlan (1990)
222 Cal.App.3d 439, 448 (Harlan).)
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2. Dr. Ward’s Testimony Was Appropriately Admitted
Hernandez’s main argument as to Dr. Ward’s testimony is that CSAAS
evidence, as a rule, should be deemed inadmissible in California. He offers
three justifications: (1) CSAAS does not satisfy the Kelly test, (2) the
syndrome’s misconceptions are now within jurors’ common knowledge and
thus an expert is not needed to explain them, and (3) expert testimony about
the syndrome will be always be misused by the jury “as evidence that the
victim’s allegations must be true.” Hernandez contends he was prejudiced by
the erroneous admission of this evidence because it improperly bolstered the
victims’ credibility. The People retort that the law is settled in California
that CSAAS evidence is admissible without the need to satisfy the Kelly test,
but in any event there is no reason to believe that the jury disregarded the
court’s, Ward’s, and the prosecutor’s admonishments not to misuse it.
Thirty-five years ago, our Supreme Court determined that CSAAS
evidence “ ‘is needed to disabuse jurors of commonly held misconceptions
about child sexual abuse, and to explain the emotional antecedents of abused
children’s seemingly self-impeaching behavior.’ ” (McAlpin, supra, 53 Cal.3d
at p. 1301.) Although it “is not admissible to prove that the complaining
witness has in fact been sexually abused; it is admissible to rehabilitate such
witness’s credibility when the defendant suggests that the child’s conduct
after the incident—e.g., a delay in reporting—is inconsistent with his or her
testimony claiming molestation.” (Id. at p. 1300.) The high court supported
this conclusion by citing with approval Harlan, supra, 222 Cal.App.3d at
pages 449–450, where the Court of Appeal stated that “[t]he Kelly/Frye rule
does not apply to this type of evidence.” (Harlan, at p. 449; see also McAlpin,
at p. 1301 & fn. 4.)
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Since then, CSAAS evidence “has been ruled to be properly admitted by
the courts of this state,” as they “have long recognized the well-established
relevance, necessity, reliability, and importance of this evidence.” (People v.
Munch (2020) 52 Cal.App.5th 464, 472 (Munch).) And for just as long, it has
been the law in California that CSAAS evidence need not satisfy the Kelly
rule. (People v. Stoll (1989) 49 Cal.3d 1136, 1161; Lapenias, supra, 67
Cal.App.5th at p. 173.) Although, as Hernandez points out, a few other states
have rejected CSAAS testimony, the fact “[t]hat other jurisdictions may
disagree with [McAlpin] does not change [its] impact on California cases.”4
(Munch, at p. 468.) Binding precedent, therefore, requires us to reject
Hernandez’s argument that CSAAS testimony is per se inadmissible.
So, too, do other settled principles. We think it is safe to continue to
assume that “[m]ost jurors, fortunately, have been spared the experience of
being the parent of a sexually molested child.” (McAlpin, supra, 53
Cal.App.3d at p. 1302; accord Munch, supra, 52 Cal.App.5th at p. 469
[“ ‘ “[m]ost jurors would not be aware, in their everyday experiences, of how
sexually abused children might respond to abuse” ’ ”].) CSAAS evidence,
therefore, is a proper subject for expert testimony even if, as Hernandez
surmises, some of the myths it addresses may be known by potential jurors.
(McAlpin, at p. 1300 [“even if the jury has some knowledge of the matter,
expert opinion may be admitted if it would ‘assist’ the jury” in “at least
some degree”]; accord Evid. Code, § 801, subd. (a).) And we are unpersuaded
by his suggestion that jurors always misuse CSAAS evidence as proof the
sexual abuse occurred, considering that we presume they will follow the
4 As of 2020, California was among the 41 states allowing CSAAS
testimony for at least some purpose. (Munch, supra, 52 Cal.App.5th at
p. 472.)
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corresponding limiting instruction defendants may request. (People v.
Waidla (2000) 22 Cal.4th 690, 725 [jurors presumed to follow limiting
instructions]; People v. Mateo (2016) 243 Cal.App.4th 1063, 1073–1074
[no sua sponte duty to read CALCRIM No. 1193].)
Against this backdrop, we find no abuse of the court’s “broad discretion”
to admit Dr. Ward’s testimony. (People v. McDowell (2012) 54 Cal.4th 395,
426 [standard of review].) As required, the People identified the CSAAS
misconceptions Ward would generally address (People v. Bowker (1988) 203
Cal.App.3d 385, 394) based on evidence that had been elicited about the
victims’ “paradoxical behavior” (Patino, supra, 26 Cal.App.4th at pp. 1744–
1745). Finding nothing arbitrary, capricious, or patently absurd about
allowing Ward’s testimony under these circumstances, there was no error
we must examine for prejudice.
C. Prior Disclosure Jury Instruction
Under the modern interpretation of what has historically been known
as the “ ‘fresh complaint’ ” doctrine—but which is more aptly characterized as
the “ ‘prior disclosure’ ” doctrine (People v. Flores (2024) 101 Cal.App.5th 438,
443 (Flores))—“proof of an extrajudicial complaint, made by the victim of a
sexual offense, disclosing the alleged assault, may be admitted for a limited
nonhearsay purpose” (People v. Brown (1994) 8 Cal.4th 746, 749–750
(Brown)). Thus, the court may admit evidence of the victim’s out-of-court
statement “to establish the fact of, and the circumstances surrounding, the
victim’s disclosure of the assault to others—whenever the fact that the
disclosure was made and the circumstances under which it was made are
relevant to the trier of fact’s determination as to whether the offense
occurred.” (Id. at p. 750.)
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In a ruling unchallenged on appeal, the court admitted testimony by
the victims’ relatives about prior disclosures by the victims regarding
Hernandez’s sexual abuse. Either before or after each relative testified, the
court read this limiting instruction that the prosecutor drafted and
Hernandez approved:5
“During the trial, certain evidence will be admitted for
a limited purpose. You may consider that evidence only for
that purpose and for no other.
“For example, witnesses [names omitted] may testify
about disclosures [victim] made to her regarding the
alleged sexual conduct prior to the trial and prior to a
report to law enforcement. You may consider that evidence
in two ways: as corroboration to [victim]’s statements, and
to establish the fact of, and the circumstances surrounding,
[victims]’s disclosure to others at the time it was made.
It is up to you what weight to give the disclosure and its
relevancy to your determination as to whether the offenses
occurred.” (Italics added.)
Hernandez now asserts that the italicized portion of the instruction
misstated the law in that it invited jurors to use the evidence to directly
prove the crimes occurred. Because these disclosures could not be used for
this purpose, he argues that it was wrong for the court to suggest they had
any relevance to that question.
The jury may consider the evidence of an extrajudicial disclosure and
its surrounding circumstances not directly to prove the truth of the matter
asserted, but indirectly “ ‘for the purpose of corroborating the victim’s
5 The parties agree that review is appropriate in the absence of an
objection because Hernandez contends that the court misstated the law.
(People v. Hudson (2006) 38 Cal.4th 1002, 1012.) All the instructions were
substantially the same.
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testimony.’ ” (People v. Manning (2008) 165 Cal.App.4th 870, 880.) For
example, evidence of prior disclosures “along with CSAAS testimony” may
“help[] ‘shed light upon the reasons’ for [a victim’s] delayed disclosure and
‘tend[] to forestall any erroneous inferences that might [arise] in the absence
of that evidence,’ ” such as that the accusations were fabricated. (Flores,
supra, 101 Cal.App.5th at p. 451.) Ultimately, of course, even this indirect
testimony regarding a victim’s prior disclosure may only be admitted when it
is “relevant to the trier of fact’s determination as to whether the offense
occurred.” (Brown, supra, 8 Cal.4th at p. 750, italics added.)
Although perhaps not a model of clarity, the instruction was a correct
statement of the law. When read as a whole and in context, it simply told the
jurors to give this potentially corroborative testimony—which under Brown
was relevant to whether the offenses occurred—the weight they saw fit when
deciding Hernandez’s guilt. To the extent Hernandez believes that the
instruction was unclear or could have been misconstrued, his failure to
request clarification forfeits the issue. (People v. Lee (2011) 51 Cal.4th 620,
638.) Because our de novo review reveals no instructional error, we need not
address Hernandez’s claims of prejudice. (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088 [standard of review].)
DISPOSITION
The judgment is affirmed.
DATO, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
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