Filed 10/23/26 P. v. Ramirez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102962
Plaintiff and Respondent,
(Super. Ct. No. 22FE008274)
v.
JUAN ALEJANDRO RAMIREZ,
Defendant and Appellant.
A jury found defendant Juan Alejandro Ramirez guilty of 18 of counts of lewd or
lascivious acts upon or with a child who was under the age of 14 years, by use of “force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person,” under Penal Code section 288, subdivision (b)(1). The jury also
found true all three alleged factors in aggravation under California Rules of Court, rule
4.421(a): to wit, the victim was particularly vulnerable; the manner in which the crime
was carried out indicates planning, sophistication, or professionalism; and the defendant
took advantage of a position of trust or confidence to commit the offense. (Cal. Rules of
Court, rule 4.421(a)(3), (8) & (11).) All citations to rules in this decision are to the
California Rules of Court. The jury also found true that defendant had substantial sexual
contact with a victim under the age of 14, within the meaning of Penal Code section
1203.066, subdivision (a)(8), on all but three of the alleged counts. The victim in all
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counts was defendant’s stepdaughter, M., who was between the ages of 11 and 13 when
defendant sexually abused her.
The trial court imposed the maximum sentence under Penal Code section 288,
subdivision (b)(1), of 10 years for each count, to be served consecutively, for an
aggregate term of 180 years.
On appeal, defendant raises three arguments. First, he argues the trial court
improperly and prejudicially admitted expert testimony regarding child sexual abuse
accommodation syndrome (CSAAS). Second, he argues that the pattern jury instruction
the court used to instruct the jury on the use of CSAAS evidence, CALCRIM No. 1193,
improperly instructed the jury that it could consider CSAAS evidence to prove the truth
of the charges. Finally, defendant argues his upper term sentence must be reversed and
the middle term imposed because the trial court indicated it believed it would impose the
midterm sentence until defendant asserted his innocence during the sentencing hearing.
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The Prosecution’s Evidence
M.’s Testimony
M. was born in late October 2008.
Defendant began dating M.’s mother, R., when M. was between seven and eight.
M. has a half-sister, A., through her mother who is about three years younger. Defendant
began living with R., M., and A. before he married R., when M. was in about the fourth
grade.
When defendant started living with them, they would go places, like San Francisco
as a family. M. had never been to San Francisco before. It made her happy to try new
things. The whole family was trying to learn Thai and “Laos,” because defendant liked
those languages.
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Defendant also taught M. some cooking and housekeeping skills. At first, they
were kind of like friends. M. felt she finally had a father figure in her life, which made
her happy. M. did not know her biological father at the time.
Defendant and R. married and had two children together who are approximately
11 and 9 years younger than M.
Defendant was the disciplinarian in the home, and M. estimates she was
disciplined about once or three times a week. There were a lot of rules. M. would get in
trouble for minor things like talking when she was not supposed to, eating before
defendant, or not wiping off the counter; and this made her afraid.
Sometimes, when M. got in trouble, she would have to stand in a corner for three
hours or be locked in a small closet. Standing that long made her legs hurt and the closet
was scary. Her siblings faced these punishments too. Defendant would also hit M. with
a bamboo stick, “bo staff,” or “nun chucks” as punishment. He had these items for
martial arts. Child protective services (CPS) came to the home multiple times, but M.
and her siblings were never removed.
Defendant was teaching M. and A. martial arts. M. did not like that instead of
using a dummy he would use her as a dummy and hit her. It hurt and she would have
bruises. M. told defendant she did not want to serve as his dummy, but he would get
mad.
Defendant would use the tools for punishment if M. was not listening or was doing
something she was not supposed to. Once she begged for something at the store after he
said no, and she got hit with the bamboo stick when they got home. M. testified
defendant hit her with these tools “[e]very day a week.” There was no saying “no” to
defendant in the home. You had to listen to defendant or face punishment. M. felt the
discipline was too harsh and inappropriate.
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R. saw defendant disciplining M. and her siblings, but R. had no say. One time, R.
said something to defendant about his discipline methods, but the methods continued
because he did not listen.
Defendant first began molesting M. around when she turned 11, about two years
after he married R. The prosecutor noticed M. hesitated when he asked her when the
abuse started, and she said that was because she does not remember the dates of the
abuse, but she knew it was around her 11th birthday.
The first incident happened on a day M. was grounded. She came home and did
some chores and was writing sentences as part of her punishment. Defendant told M. to
go to his and R.’s bedroom, where he massaged her back and shoulders. It was normal
for defendant to massage M.’s back. He told her he was going to massage her, and he
told her to lie down; so, she did. R. was not home and her siblings were in the living
room. M. wondered why they could not do the massage in the living room, but she was
afraid of getting in trouble and did not confront defendant about doing the massage in the
bedroom.
M. lay on the bed on her stomach, and defendant sat on her back during the
massage. The door was shut. Defendant was wearing boxers, and she was clothed. It
was normal for defendant to just wear boxers at home. Defendant put his hands under M.
and squeezed her breasts. This was on top of her clothing. Neither of them said anything
about him touching M.’s breasts, but she thought it was weird and not normal. M. did not
try to get away for about two minutes, because defendant was strong and on her back, and
she did not want to get hit for resisting. He did not say he was going to hit her, but she
would get hit for minor things. She stopped it by saying she had to go finish the dishes
and had homework. He said, “ ‘[j]ust go do them.’ ” She got up, closed the door,
brushed it off, and did her homework and chores, then watched her siblings.
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M. said nothing to R. after the incident, because defendant was around R. She did
not tell anyone else what happened because she was afraid they would tell defendant or
make fun of her.
M. believes the second incident of sexual abuse happened about one month after
the first. R. was at work. She believes her siblings were in the living room. She and
defendant were in his bedroom. She does not remember how she got in the room. She
thinks the door was shut, but she is not sure. Defendant was massaging her, and she fell
asleep. M. woke up with no pants on. Defendant had his fingers inside of her vagina.
She does not recall if she said anything. M. would try to move, but defendant’s fingers
were inside her, and every time he would tighten his hand. He would tense his arm, and
because he was too strong for her, she would not move. She was lying on her back, and
he was on his side, and she thinks he only had his boxers on. She said stop, and she
thinks defendant laughed, but she does not remember because “[i]t was just kind of
blurry.” He didn’t say anything. She believes this went on for 15 to 30 minutes. When
M. tried to move, defendant would tense up his arm and hold her in place. This happened
every time he put his hand in her vagina. Defendant also kissed M. on the lips and told
her if he kissed her with tongue it would be wrong. He then kissed her with tongue
during some incident of sexual touching, but she does not remember when. When
defendant removed his fingers, M. put her clothes on and went into the living room. M.
did not tell other adults about this abuse. She didn’t really trust anyone. On cross-
examination M. said she did not go to her mother, a trusted teacher at school, CPS, a
police resource, or anyone. Defendant never threatened to do anything to M., her
siblings, or R. if she told someone, and she admitted her fear that he would do something
to her was in her mind.
Two months after the vaginal touching, defendant added another form of sexual
touching. This was another incident that started with a massage in his room and
progressed to defendant putting his fingers in M.’s vagina. Defendant was lying next to
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M. on the bed and had his fingers in her vagina. He then grabbed her hand and put it on
his penis. She tried to resist, but he was too strong and yanked her hand. He had her
stroke his penis by grabbing her hand and moving it up and down. He was holding the
back of her hand. This ended when he ejaculated onto his boxers. Defendant kissed M.
on the lips during this incident.
Other incidents of sexual abuse occurred in defendant’s car. The car was a two-
door and had dark tinted windows all around which prevented others seeing into the car.
The first touching incident in the car happened when M. and defendant went to a
laundromat in Davis. There were no other cars in the lot. It was nighttime. Defendant
ordered M. to get in the back of the car. When M. said no and asked why she needed to
get in back, defendant said, “ ‘[c]ause I said so.’ ” In the back, defendant pulled down
M.’s underwear and put his tongue on her vagina. M. kept quiet and said nothing
because she was afraid of what might happen if she said something. This was the first
time defendant put his mouth on M.’s vagina. M. felt that the prior incidents were not too
bad, but when he put his mouth on her vagina it had gone too far.
Defendant made M. orally copulate him for the first time in the car in an empty lot
near their apartment. He was teaching her to drive. She thinks they had just gone to the
store. He grabbed the back of her head and pushed it down on his penis. She felt she
could not choose to resist. She kind of resisted by tensing her head and neck, but he just
shoved her head down more. He then moved her head up and down. He ejaculated
outside of her mouth. She said this happened right after her 12th birthday.
Defendant also forced M. to orally copulate him once in the car near their
apartment a time when they had gone to get pizza and he was teaching her to drive. M.
believes the last time defendant forced her to orally copulate him in the car was about one
month before she left the defendant.
Another incident occurred in the car when M. and defendant went to the “Foods
Co.” or possibly a Walmart. M. had trouble remembering the specifics, saying it was
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either the Walmart or Foods Co., suggesting there was an incident of sexual touching in
the car outside each store. When the prosecutor tried to home in on the details of the
Foods Co. incident, M. said, “[b]efore we went shopping, he did the same thing as usual,
which is either I would, you know, masturbate him, or he would have me in the back and
he would put his mouth on my vagina.” The prosecutor then referred her to her interview
with a detective to refresh her recollection. She then testified that at the Foods Co. or
FoodMaxx, defendant ordered her into the back of the car, and when she did not want to
go, he yelled at her, and she felt she had no choice. So, she went in the back. He put a
condom on and rubbed his penis into her stomach. That was all that happened in that
incident. He wrapped the condom up and placed it on a space under the radio. They then
went shopping. When the prosecutor suggested M. could have just gotten out of the car
and ran away, M. said, “[y]eah, but I was too scared.” On cross, she said if she left the
car defendant would have just dragged her back.
In the middle of the time span during which defendant sexually abused M., he
touched her vagina with his penis. This happened in defendant’s bedroom. Defendant
“did the regular massage,” and M. fell asleep with her clothes on. When she woke up,
she was lying naked on her back, and defendant was trying to put his penis in her vagina.
When she testified, all M. could remember about defendant’s position is that he was
“sitting below” her and trying to force his penis into her vagina. It hurt. Only the tip
went in. He tried for about five minutes. M. had trouble recalling how the incident
ended, and she could not remember if defendant wore a condom. She stated, “[i]t’s all a
blur.” The prosecutor used a transcript of an interview M. gave with a detective closer to
the time of the abuse, when M. agreed her memory would have been clearer, to refresh
her recollection. She acknowledged she told the interviewer that during the incident her
legs were on top of defendant’s shoulders. She had forgotten this detail by the time of
the trial. After defendant stopped trying to force his penis into M.’s vagina, he had her
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masturbate him until he ejaculated. This was the only time defendant tried to put his
penis in M.’s vagina.
M. testified that she would go with defendant to pick up his daughter in Stockton.
On one trip, he made her watch anime porn on his phone. This was in the “middle” of
the timeline of abuse.
The last incident happened when M. was 13. One morning in the beginning of
2022—she guessed January—when R. was home, M. got up, brushed her teeth, and did
some chores. She went to go to her room to get ready for school when defendant grabbed
her and pulled her onto the couch. She wound up lying with her back against his
stomach. He began rubbing her stomach under her shirt and then her breasts over a bra.
A. was getting ready for school in the room she and M. shared, and R. was sleeping in her
room. R. came in and yelled at defendant, asking what he was doing. Defendant pushed
M. off the couch. M. went to the bathroom as defendant and R. yelled and argued. M.
got ready for school and went to school when R. told her to.
M. and R. texted throughout the day. They also had a phone call. M. eventually
told R. some of what had been going on. M. reviewed and testified regarding some of the
text messages from that day.
R. wrote, “ ‘[M.], I need you to tell me what’s going on, because if I’m getting
mad at your Paw for no reason, then I need you to tell me, and I’m not mad at you.... and
I love you, and it’s my job to protect you; so please tell me the truth. I don’t want to
make a decision without you telling me that everything is okay or not, and it’s okay to tell
me.’ ” R. asked, “ ‘[s]o what’s going on?’ ” M. replied, “ ‘[h]e has been doing this since
you worked at Ace. At first, he was, like, “I’ll give you a massage,” and he started to
touch me and I felt uncomfortable. I was stupid and couldn’t bail out, but then he made
me give him a blow job, then he would make me watch porn—anime porn, then I started
to bail out only.’ ” When R. asked M. why she never told her about the abuse, M.
responded, “ ‘I didn’t want to tell you because I was uncomfortable, and I don’t know.’ ”
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M. later called R. on a lunch break and discussed details about what had been happening.
M. felt a weight lifted from her shoulders but was nervous about telling R. She was
afraid R. would get angry or yell at her. She had seen documentaries where parents got
angry with their children and accused them of lying when they reported sexual abuse.
M. admitted she told a detective that when the abuse started, she and defendant
were not that close. She admitted it was fair to say she told the detective, “ ‘I don’t like
him at all.’ ” She agreed it was fair to say she told the detective R.’s prior relationship
had been abusive, and M. doesn’t like anyone who tries to get close to R.
On cross-examination, M. said defendant was abusive towards R. She disagreed
with the defense’s characterization that she did not like defendant at all before the sexual
abuse, and stated she said she didn’t like him when she spoke to detectives because,
“[t]hat was the time where I didn’t like him because I felt disgusted.”
On redirect examination, M. explained she did not like defendant at the time of the
interview, but she still did care for him. He was “kind of” a father figure to her. She
didn’t love him, but he had a place in her heart.
At some point, M. discovered defendant was cheating on R. after going through
his phone. This made M. angry because she was close to R. She told R., who asked her
to send screenshots.
M. agreed that R. and defendant argued all the time. Later she clarified it was not
all the time. R. had tried to leave defendant multiple times, but defendant always came
looking for her.
M. admitted she told a detective during the investigations that the abuse started in
February 2021. She would have been 12 at that time. She then insisted she said it was
after her 11th birthday. M. also admitted she never told the first police officer she spoke
with or a detective who interviewed her about being hit with martial arts weapons. She
reasoned this was because the point of the interviews was to talk about molestation.
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M.’s testimony regarding the number of times defendant engaged in any specific
form of lewd or lascivious conduct was not consistent. For example, when M. was asked
how often defendant touched her vagina, she first said maybe twice a week. Then, when
asked to estimate if it was more or less than 10 times, she said less than 10. Then, when
the prosecutor explained to M. that if it happened twice a week over about two years, that
would be a lot more than 10, she said she thought it was more than 10. She then said it
happened about 15 times. On cross, she said it was three times. When defense counsel
asked M. why she told a detective defendant touched her vagina with his fingers one
time, she said it was because “that’s what I figure happened because some of them are a
blur.” She characterized saying it happened one time was “an estimate.” When asked the
next time—after the second incident of sexual touching where he touched her vagina—a
sexual touching happened, M. said she did not remember, because it happened too many
times.
R.’s Testimony
R. testified she began dating defendant in 2016, and they moved in together in
2016. They married in December 2017. He acted like a father figure to M. and A. When
defendant and R. first married, he and M. got along really good and seemed like father
and daughter. She characterized her relationship with M. as “really close” and believes
M. would come to her with personal problems.
Defendant put children in the corner or made them write sentences for discipline.
She saw defendant hit M. with a stick used for martial arts one time; saw him use it on A.
more than once; and saw him use nun chucks on A. a couple times, but not on M. The
one time she saw him hit M. with the stick, it was because M. did not do the dishes, and
R. stepped in. M. would be in the room when he hit A. with the tools. When she tried to
talk to defendant about this, he said M. and A. needed to be disciplined. After R.
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expressed she did not care for this type of discipline, it would stop for a while, but then
he would do it when she was not there.
During the marriage, defendant and R. would sometimes argue in front of the
children. Defendant was physically abusive towards R. in front of the children at least
once.
M. told R. about seeing something on defendant’s phone that indicated he was
seeing other women.
R., defendant, and her four children moved into an apartment in February 2019.
R. had various jobs when they lived in the apartment, including one for Ace Hardware,
where she began working in September. Her hours at Ace were from 2 p.m. to 11 p.m.
five days a week. When she worked, her children were home with defendant. She left
her job at Ace Hardware in July 2021 and was then home full time.
Defendant had a car with tinted windows all around, and defendant and M.
frequently left to go somewhere in the car. R. said while they lived together, sometimes
defendant was a good father, and sometimes he was abusive.
On February 17, 2022, at around 7 a.m., defendant had just returned from work.
He changed while R. lay on the bed. Defendant went into the living room and she
expected him to come back to the bedroom, but he did not. After 10 minutes, R. had a
weird feeling and got up and slowly left the room and went into the hallway. She saw
defendant lying on the couch face up, with M. on top of him with her back facing his. M.
was rubbing her fingers in defendant’s hair, and defendant was rubbing M.’s stomach
under her clothing. M.’s shirt was pulled up to right under her breasts.
R. said, “ ‘[w]hat the F is going on?’ ” Defendant threw M. off him and onto the
floor, and M. ran to the bathroom. M. looked scared. Defendant followed them. He
looked surprised. She locked the door to the bathroom and asked M. what was going on.
M. did not say anything and just looked scared. Defendant banged on the door and said,
“ ‘[s]he’s lying.’ ”
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R. sent M. to school and went into her bedroom. Defendant followed her. She told him
to leave. Eventually he left. As she and defendant went back and forth about him
leaving, he kept telling her she had not seen anything. Later in the day she texted and had
a phone call with M.
Before their text exchange that day, M. had never told R. anything unusual was
happening with defendant. R. said that M. was normally a happy kid. Before the
incident, R. had never seen any inappropriate conduct between defendant and M. She did
not notice a change in M.’s behavior during her marriage to defendant.
R. took the kids to her mother’s. She contacted the police the next day.
When R. spoke with the detective, she said part of the reason she left the house
and wanted to get all the kids out was because defendant was abusive towards her. She
had previously tried to leave defendant, and she would take him back because he
promised to get better. He did not get better.
R. called defendant with the detective present. She understood the call was being
recorded. The recording was played for the jury and admitted into evidence. During the
call, defendant claimed to be shocked by allegations that he sexually abused M. He
questioned why R. was making such a big deal out of what she saw, and claimed he was
just rocking M. like a baby. He said they were play fighting, she was poking him, and he
picked her up like a baby. He said M. is a good liar sometimes, when she wants
something. He said he was rubbing M. because M. has stomach problems.
Detective Cynthia Bohrer’s Testimony and the Forensic Interview
Detective Cynthia Bohrer was the lead investigator on defendant’s case. She
arranged for a forensic interview of M. on February 28, 2022. The interview was played
for the jury.
While the forms of lewd or lascivious conduct described were largely consistent,
there were some differences between M.’s description of the peripheral details of the
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abuse as described in her trial testimony and as described in the interview. For example,
M. described an instance when defendant forced her to orally copulate him as occurring
in the bedroom, where at trial she testified about these incidents occurring in the car.
With respect to the incident described during trial as likely at the Foods Co.,
during the interview M. referred to the FoodMaxx or Food 4 Less. M. also described
defendant as forcefully pushing her into the back seat of the car after she said no to going
to the back, when at trial she testified he got her in the back seat by yelling at her.
When asked to provide some details about the assaults—like what grade she was
in and how old her siblings were—she said she had trouble remembering because it was
“a little blurry.” She mentioned how the first time he made her masturbate him it was
blurry because she “just woke up from my blackout.”
She believed the abuse moved from the bedroom to the car when her mother
stopped working for Ace Hardware.
Expert’s Testimony
Dr. Tiffany Anderson is a psychologist. As part of her job duties, she works with
children who have experienced sexual abuse and keeps up on the current research and
issues regarding child sexual abuse. The trial court allowed her to testify as an expert
about child sexual abuse and the effects of child sexual abuse on children.
Dr. Anderson said CSAAS is relevant because it provides a convenient model for
helping think about or conceptualize behaviors that are often seen when children have
been sexually abused. She testified that when one looks at the behaviors of children and
sexual abuse, some behaviors that may occur are counterintuitive to adults. She testified
CSAAS is not used to “diagnose somebody with having been sexually abused.” She did
not know any facts or details about the case.
The first area Dr. Anderson addressed where behaviors may be counterintuitive
was disclosure. She stated that some people expect a child to report abuse right away or
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soon after it occurs, but many children do not tell right away. Some children wait weeks,
months, or even years. She also testified that adults often expect that when a child does
disclose, the child would be able to give a quite detailed account. But, in reality,
sometimes when a child discloses, it may be unconvincing to the adult hearing the
disclosure, because there is a lack of details, or the child shares some details in one
instance but not another, or the child backtracks on something they did share. The
research says this type of disclosure is not inconsistent with a child being abused.
There are various reasons for incremental disclosure. One reason is dissociation.
When a child was not paying attention to all the details in the moment, it may take time
for things to come back to them. But as victims expose themselves by talking about the
abuse, additional information will likely come up.
Dr. Anderson testified that while it is possible for children to disdain or dislike
their abusers, oftentimes the children have ambivalent feelings, or even loving feelings
towards their perpetrators. Usually, the relationship is an ongoing one, and the caregiver
is in a position of authority over the child. There are often positive parts to the
relationship. The abuser may be responsible for the child’s financial well-being and put
food on the table.
Dr. Anderson testified that often when children experience sexual abuse, the
people in their life are unaware that the abuse has occurred. Parents are often shocked
and surprised when an allegation is made. “Children are quite good at, sort of,
maintaining the status quo, and appearing as though everything is fine, even when the
abuse is occurring in secret.” Dr. Anderson testified that even if the abuse is upsetting,
hurtful, or distressing, a child may attempt to make their environment stay calm and
appear as if nothing is wrong. They may take active steps to ensure the abuse is not
found out, because of fears they have that something will happen if the abuse comes out.
Children might worry about something bad happening to the perpetrator. They may
worry about the person being removed and taken to jail, or about CPS getting involved.
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Dr. Anderson discussed different reactions children who are being abused might
have during the abuse. Some may try to fight back, cry out, or run away. But the most
common response is a freeze response.
Dr. Anderson testified about the concept of helplessness. In these abuse scenarios,
the perpetrator is an adult who is bigger, stronger, and more powerful than the child.
This child has inherent vulnerabilities. You cannot expect a child to ensure their own
sexual safety in that dynamic. Sometimes when a child does try to stop the abuse—by
fighting back, running away, or telling someone right away—and it continues to happen,
the child will feel helpless. This is so because they tried to stop it and it did not work.
They feel nothing they do will matter. This leads them to sometimes feel it is easier to
just let the abuse happen.
Dr. Anderson testified about the concept of accommodation, which is about
coping. Children cope in a variety of ways. Acquiescing is a form of coping—just get
through and past the abusive time.
The most common form of coping is dissociation. Dissociation is the mental
process where the brain disconnects and removes itself from the present moment.
Children will say they blanked out or were numb. This makes it harder to remember
specific details. They know the abuse is occurring; they’re just not focused on the tiny
details.
Dr. Anderson testified about the concept of secrecy, and how child sexual abuse
occurs in secret. Some perpetrators use outward methods like threats or physical
aggression, but many times that is not necessary. The child does not need outward
methods to have a sense that bad things will happen if the abuse is discovered.
Sometimes, the child may have seen their abuser be physically aggressive with someone
else. For example, a mother’s boyfriend may have beaten up the mother. This can make
the child fearful it will happen to them. Children may fear CPS involvement or negative
consequences to the perpetrator. They may be worried they won’t be believed. They
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may be afraid the information will spread to their family members or peers, which may
cause them shame, fear, or guilt.
In Dr. Anderson’s experience and in the research, it is not uncommon for children
to keep sexual abuse a secret when it has been happening for multiple years. It happens
frequently even when the perpetrator never tells the victim not to tell anyone. It is not
uncommon to keep the secret even when the perpetrator has not demanded it.
Dr. Anderson testified that, with respect to children’s memory in general, they’re
not good with abstract things like periods of time, frequency, or dates. You are not likely
to get an accurate answer if you ask a child how often the abuse occurred. It is a case-by-
case basis as to if a child can remember specific details as opposed to others. She would
not expect a child to remember every incidence of abuse that occurred.
According to Dr. Anderson, when children talk about their abuse, most of them
display a flat effect. Everybody reacts differently. There is not one cut-and-dried way a
child who has been abused should respond.
The Defense Evidence
Defendant testified that none of the sexual abuse happened.
Defendant’s mother testified the family lived with her before they moved into their
apartment in 2019. She also testified about spending a lot of time around the family after
they moved out. She described defendant as the primary caretaker for the children, with
M. providing a lot to care for the two youngest children after they were born. She
described R. as always in her bedroom when they lived together, taking little part in the
care of the children. She described defendant as taking on the role of a father figure to
M., treating M. and A. the same as his biological children. She testified that defendant
left all his martial arts equipment at her house. She testified she never saw anything
happen between defendant and M. that she felt was inappropriate.
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Defendant’s younger sister testified. She described him as pretty chill and even-
keeled. She testified he was never violent with her growing up, and he never touched her
or did anything that made her uncomfortable. She testified she has never seen him do or
say anything to his children or stepchildren that would make her feel uncomfortable. She
said defendant and M. got along well.
Defendant’s father also testified. He testified defendant, R., and the children lived
with him for 10 months to a year. He too suggested defendant was the one responsible
for parenting the children, and made M. do the cooking, cleaning, and diaper changing.
He testified defendant was good with M. and A. and would discipline them if needed, but
he never struck them. He has never seen defendant be inappropriate with or
inappropriately touch children.
DISCUSSION
I
CSAAS Testimony
During motions in limine, the People asked to introduce expert CSAAS testimony.
The People argued they anticipated that defense counsel would attack M.’s credibility
and admission of CSAAS evidence would allow the People to rehabilitate her credibility.
The People argued that the expert testimony would assist the People in dispelling
common misconceptions the jury might have regarding how sexually abused children
react to abuse. They said that the expert testimony would include testimony regarding
delayed reporting, unconvincing disclosures, secrecy, helplessness, entrapment, and
accommodation, all which they stated were present in the current case.
The defense requested CSAAS evidence be excluded at trial.
During oral argument on the motion, defense counsel stated that while he was
aware that the California Supreme Court has given its approval for the admission of
CSAAS evidence, “some courts are starting to recognize that CSAAS is nothing more
17
than junk science.” Defendant argued the “New Jersey Supreme Court, in 2012, issued
an opinion barring the introduction of Child Sexual Abuse Accommodation Syndrome in
trials in that state,” without further citation.
The defense also argued that when CSAAS was coined, “it may have been a
situation where people were not aware that children may not necessarily disclose right
away when the molestations … occur ... over the years, that perception has clearly
changed,” considering high-profile cases like those of abuse in the Catholic church, in the
Boy Scouts, and by Michael Jackson. The defense argued this was not a case where
expert testimony was needed to explain something to the jury that an average person
would not know.
The trial court acknowledged that over the years it has become less likely that the
average juror has not heard about, at a minimum, the concept of delayed notification.
The trial court ruled, “I think that there’s still valuable information for a jury to hear,
things like unconvincing disclosures and secrecy and the helplessness that someone could
feel, and the accommodation issue, especially with somebody in the same home. But
those are all things that can make it difficult for a child to come forward, and as long as
it’s very generalized information, … and it’s probative, and I don’t think that there’s any
particular prejudice to educating a jury, giving them more information about, in general,
what children can go through, as long as it’s not specific to our case. [¶] So I will allow
the testimony with those instructions in place.”
The Law
The governing standards regarding the admissibility of expert evidence and our
review of a trial court’s decision to admit it “are well settled. (1) First, the decision of a
trial court to admit expert testimony ‘will not be disturbed on appeal unless a manifest
abuse of discretion is shown.’ (People v. Kelly (1976) 17 Cal.3d 24, 39 [], and cases
cited.) (2) Second, ‘the admissibility of expert opinion is a question of degree. The jury
18
need not be wholly ignorant of the subject matter of the opinion in order to justify its
admission; if that were the test, little expert opinion testimony would ever be heard.
Instead, the statute declares that even if the jury has some knowledge of the matter,
expert opinion may be admitted whenever it would “assist” the jury. It will be excluded
only when it would add nothing at all to the jury’s common fund of information, i.e.,
when “the subject of inquiry is one of such common knowledge that men of ordinary
education could reach a conclusion as intelligently as the witness” ’ (People v. McDonald
(1984) 37 Cal.3d 351, 367 []).” (McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
“Expert testimony on CSAAS has long been held admissible in California for the
limited purposes of dispelling commonly held myths or misconceptions about child
sexual abuse and aiding the jury in ‘evaluating the credibility of an alleged child victim
of sexual abuse.’ (People v. Lapenias (2021) 67 Cal.App.5th 162, 171 [] (Lapenias); see
[McAlpin, supra,] 53 Cal.3d [at pp.] 1300–1301 []; People v. Bowker (1988)
203 Cal.App.3d 385, 393–394 [] (Bowker).) CSAAS testimony is permitted ‘ “to explain
the emotional antecedents of abused children’s seemingly self-impeaching behavior,” ’
such as delayed disclosure of the abuse. (McAlpin, at p. 1301; see Lapenias, at p. 172.)”
(People v. Sedano (2023) 88 Cal.App.5th 474, 479 (Sedano).)
CSAAS testimony typically addresses five components of behavior: “secrecy,
helplessness, accommodation, disclosure, and recantation.” (See People v. Mateo (2016)
243 Cal.App.4th 1063, 1069; Lapenias, supra, 67 Cal.App.5th at p. 173.)
There was no Abuse of Discretion
Defendant asserts there is a “robust line of cases in other jurisdictions
disapproving use of CSAAS evidence as inherently unreliable.” He argues “competing
scientific studies on particular components shows the relevant expert community is not in
accord, but in disagreement, meaning CSAAS is not so widely accepted that courts may
permit its wholesale admission under Kelly/Frye.” He contends, the trial court abused its
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discretion admitting the CSAAS testimony, apart from delayed disclosure, because it was
“generally irrelevant such that its specific prejudice cannot be overcome by either a
general assertion of probity or its probity only in part.” He argues, “to the extent the
relevant research was necessary to dispel some particular misconception about [M.’s]
delayed disclosure, this did not warrant admission of the syndrome itself,” or the
syndrome as a whole.
Defendant further argues the court abused its discretion in admitting the evidence
without determining its reliability or the relevance of each component. He asserts
CSAAS provides “a blanket reality that avoids any particulars—and permits the jury to
avoid confronting problems of proof in those particulars.” He asserts the error was
prejudicial because the prosecutor relied heavily on the CSAAS evidence in closing and
argued such evidence established that M. was in fact sexually abused.
The People argue given the continued admissibility of CSAAS evidence;
defendant has failed to establish the trial court abused its discretion here. The People are
correct.
While it is difficult to parse the precise contours of defendant’s relevance
argument, the central theory appears to be this: “CSAAS testimony is relevant only to
explain ‘the emotional antecedents of abused children’s seemingly self-impeaching
behavior’ [citation], and to rehabilitate the complainant’s credibility when the conduct of
the abused after the incident is inconsistent with the allegation of sexual conduct by the
abuser.” But experts are not needed to explain why M. may have been reluctant to tell
her mother about the abuse. “The lone CSAAS component with some scientific support”
was delayed disclosure, and M. provided testimony as to why she did not want to tell
anyone. In light of modern awareness of child sexual abuse scandals and delayed
disclosure, the jury did not need an expert’s assistance on this point, and the testimony
did not satisfy the requirements of Evidence Code, section 801, subdivision (a), that the
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testimony is, “related to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.”
To the extent the defendant insists CSAAS evidence—except possibly evidence
regarding delayed disclosure—is unreliable and must be excluded, he bases this position
on decisions from other jurisdictions, including Pennsylvania (Commonwealth v. Dunkle
(1992) 529 Pa. 168); Kentucky (Newkirk v. Commonwealth (Ky. 1996) 937 S.W.2d 690;
Sanderson v. Commonwealth (Ky. 2009) 291 S.W.3d 610); Tennessee (State v. Ballard
(Tenn. 1993) 855 S.W.2d 557); Florida (Hadden v. State (Fla. 1997) 690 So.2d 573); and
New Jersey (State v. J.L.G. (2018) 234 N.J. 265).
In People v. Munch (2020) 52 Cal.App.5th 464, 469-472, our colleagues in the
Second District Court of Appeal exposed the logical flaws in relying on these types of
out-of-state cases. We are in accord with their reasoning. Moreover, the admissibility
and reliability of CSAAS evidence is well settled in California law. (See Sedano, supra,
88 Cal.App.5th at p. 479; Lapenias, supra, 67 Cal.App.5th at p. 171; see also McAlpin,
supra, 53 Cal.3d at pp. 1300-1301; Bowker, supra, 203 Cal.App.3d at pp. 390-394.) That
is, California courts, including the California Supreme Court, have held CSAAS evidence
is admissible in California for the limited purpose of disabusing a jury of misconceptions
about how a child reacts to molestation. (See McAlpin, at pp. 1300-1301; see also
Sedano, at pp. 479-480; Lapenias, at p. 171; Bowker, at pp. 393-394.) “Defendant’s
references to decisions from other jurisdictions that reached a different position do not
affect the binding nature of” our Supreme Court’s decision in McAlpin. (People v.
Ramirez (2023) 98 Cal.App.5th 175, 216.) “The McAlpin decision ‘is binding on all
lower courts in this state. [Citation.] That other jurisdictions may disagree with it does
not change its impact on California cases. [Citation.]’ [Citation.]” (Ibid.)
There was no error.
We also cannot conclude, as defendant urges, that the CSAAS evidence was
“unduly prejudicial.” “Evidence is not ‘prejudicial’ merely because it is harmful to a
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criminal defendant’s case. [Citation.] Indeed, essentially all relevant evidence
introduced by the prosecution is likely to be harmful to a defendant’s case. Evidence
only creates ‘undue prejudice’ if the evidence tends to evoke an emotional bias against
the defendant, and the evidence has relatively little importance based on the specific
issues involved in the particular case.” (Lapenias, supra, 67 Cal.App.5th at p. 174.)
Having carefully considered Dr. Anderson’s testimony, none of that occurred here.
II
CALCRIM No. 1193
Defendant faults the trial court for instructing the jury with CALCRIM No. 1193,
the pattern instruction on CSAAS testimony. He argues that what he perceives to be
“internally inconsistent” language in the instruction allowed jurors to conclude M. was
not lying and was, therefore, in fact sexually abused. He claims this purported error
violated his right to have every element of each charge proven beyond a reasonable doubt
under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
Again, we find no error.
As given to the jury, CALCRIM No. 1193 stated, “[y]ou have heard testimony
from Dr. Tiffany Anderson regarding child sexual abuse accommodation syndrome. [¶]
Child sexual abuse accommodation syndrome relates to a pattern of behavior that may be
present in child sexual abuse cases. Testimony as to the accommodation syndrome is
offered only to explain certain behavior of an alleged victim of child sexual abuse. [¶]
Dr. Anderson’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 [M.’s] conduct was consistent
with the conduct of someone who has been molested, and in evaluating the believability
of the alleged victim.”
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“We review instructional error claims under a de novo standard of review.
(People v. Fiore (2014) 227 Cal.App.4th 1362, 1378 [].) ‘The proper test for judging the
adequacy of instructions is to decide whether the trial court “fully and fairly instructed on
the applicable law … .” ’ (People v. Martin (2000) 78 Cal.App.4th 1107, 1111 [].)”
(Lapenias, supra, 67 Cal.App.5th at p. 175.)
Defendant argues the language that allows a jury to consider CSAAS evidence in
“evaluating the believability of the alleged victim,” is contrary to the second requirement
articulated in People v. Housley (1992) 6 Cal.App.4th 947, 959, in which the court held,
“in all cases in which an expert is called to testify regarding CSAAS we hold the jury
must sua sponte be instructed that (1) such 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 (2) the expert’s testimony is not intended and should not
be used to determine whether the victim’s molestation claim is true.”
Our colleagues in the Second District Court of Appeal considered a similar
argument in People v. Gonzalez (2017) 16 Cal.App.5th 494, 503 (Gonzalez), in which the
defendant argued, “the instruction is inconsistent. It states that the CSAAS testimony is
not evidence the defendant committed the charged crimes, and also that the jury may use
the evidence in evaluating the believability of [the victim’s] testimony. [The defendant]
argues it is impossible to use the CSAAS testimony to evaluate the believability of [the
victim’s] testimony without using it as proof that [the defendant] committed the charged
crimes.”
Gonzalez rejected the defendant’s argument. (Gonzalez, supra, 16 Cal.App.5th at
pp. 503-504.) First, the court stated the instruction must be understood in the context of
the expert’s testimony, in which, like here, the expert stressed that CSAAS was not a
diagnostic tool to be used to determine if a child was abused. (Ibid.) Rather, CSAAS
testimony is a means to understand how a child might behave after they have been
abused. (Id. at p. 504.) Second, the court opined that, “[a] reasonable juror would
23
understand CALCRIM No. 1193 to mean that the jury can use [the expert’s] testimony to
conclude that [the victim’s] behavior does not mean she lied when she said she was
abused. The jury also would understand it cannot use [the expert’s] testimony to
conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes
the victim’s apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a
juror who believes [the expert’s] testimony will find both that [the victim’s] apparently
self-impeaching behavior does not affect her believability one way or the other, and that
the CSAAS evidence does not show she had been molested. There is no conflict in the
instruction.” (Id. at p. 504.)
Defendant encourages us to reject the reasoning of Gonzalez and find instructional
error. We find Gonzalez’s reasoning to be sound and find no error in the instruction.
III
Sentencing Discretion
Defendant argues that the trial court violated his constitutional rights by imposing
the maximum sentence after defendant declared his innocence during sentencing.
Defendant’s argument is two-fold. First, he argues that a lack of remorse is not an
aggravating factor a court can properly rely on to elevate a sentence, and the trial court
treated it as an aggravating factor here. Second, he argues that to permit the use of a lack
of remorse to serve as an aggravating factor would unduly burden a defendant’s right to a
fair trial, right to testify, and privilege against self-incrimination.
After the jury reached its verdict, the trial court referred the case to the probation
department to prepare a sentencing report and recommendation. The report
recommended a sentence of 144 years, which would be a mid-term sentence of 8 years
per count. (Pen. Code, § 288, subd. (b)(1).)
At the sentencing hearing, M. and R. gave statements. M. said defendant has
destroyed her life, scarring her emotionally, mentally, and physically. She reported being
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diagnosed with post-traumatic stress disorder and anxiety, suffering nightmares and
suicidal thoughts, and difficulty socializing and going to school. R. also spoke about the
damage defendant did to their lives and her ability to trust others. She stated she believed
defendant should receive the maximum sentence.
The People requested the maximum sentence of 180 years determinate in state
prison, representing a 10-year sentence for each offense, to be served consecutively.
When given the option to make a statement, defendant began by saying, “[w]hat
you say about me is totally not me. You’re far away, far apart from what you really think
I am. I made you. I made the family. I’m sorry about your past, what happened to your
past with your—with your family, what they did to you and what your father did to you
and your siblings—.” Then the trial court cut him off, and explained it was not interested
in hearing defendant “take shots at the victim here.” The court went on: “What I want to
know is how do you feel about—do you have anything to say about the conviction, and
do you have anything to say about what you think the Court should sentence you to?”
The court went on: “Do you have any expressions of remorse, for example? Do
you have any expressions of something in mitigation that I should consider about you?”
The trial court explained the jury had already found defendant guilty, and it was
not there to relitigate the jury’s findings. It explained it was trying to figure out the right
sentence, and asked defendant what it should consider. The defendant responded, “I
don’t feel like I should get sentenced max. I should fight again. Go to retrial, per my
innocence.”
Defense counsel asked the court to consider the low-term sentence of 5 years per
offense, which would result in a 90-year sentence. (Pen. Code, § 288(b)(1).) Defense
counsel pointed to defendant’s lack of a prior criminal record; gainful employment at
time of arrest; and score of zero on the Static-99R, which indicates a below average risk
for sexual offense recidivism.
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Before pronouncing a sentence of the maximum possible term, the trial court
explained its reasoning. It said, “I have considered these aggravating and mitigating
circumstances in this case in determining this, and as I can see it, there’s only one
mitigating circumstance, and that is under 4.423(b)(1), the defendant has no prior record
of criminal conduct, and he has lived, up to this moment—he’s 36 years old and has no
criminal record, and so I do consider that to be an important mitigating circumstance.
“And there are also aggravating factors that the jury considered and found true
beyond a reasonable doubt, that is under 4.421(a)(3), the victim was particularly
vulnerable as a young girl living in a home where you were the one of the two adults in
that home.
“Then under 4.421(a)(8), the manner in which the crimes were carried out
indicated planning, sophistication, professionalism, that was found true.
“In this case, it seemed clear that you groomed her. You, essentially, it felt like,
turned her into somebody who was almost like your wife. You would plan for occasions
to go out with just you and her to do things together, laundry and other—you gradually
groomed her and brought her into a sexual relationship.
“And under 4.421(a)(11), you took advantage of a position of trust to commit the
offenses. You were a father figure to her, and in that position of trust, instead of caring
for her, you instead exploited her, and over a period of time, you committed violent sex
offenses against her. So all of those rules—all of those circumstances in aggravation
were found true by a jury.
“The Court does have to balance these, and although I do give great weight to the
circumstances in mitigation here, I do find that the circumstances in aggravation not only
outweigh the circumstances in mitigation, they far outweigh the circumstances in
mitigation in your case.
“So whether I give you low term, midterm, or upper term, certainly you’re going
to be sentenced, really, to life in prison regardless. So do these numbers matter? I think
26
they matter as an intellectual exercise as to what’s right, what really reflects the conduct
in this case.
“I will say I came out here on the bench just thinking, as I read the probation
report, that I would—likely, this would end up as a midterm case. I then listened to you
and your attitude about this, and you clearly have no remorse whatsoever, and I thought
that that would be a mitigating circumstance that I could, in addition, perhaps use to
balance this out, but, of course, you don’t have any remorse.
“And so when I balance out these aggravating factors, I can’t even look to that as
something that would help to mitigate this. And so on balance here, I am convinced that
in these circumstances, based on the vulnerability of the victim and the position of trust in
particular that you violated with [M.], that it does warrant an upper term sentence in this
case, and the Court will impose in this case.”
“We review a trial court’s sentencing decisions for an abuse of discretion,
evaluating whether the court exercised its discretion ‘in a manner that is not arbitrary and
capricious, that is consistent with the letter and spirit of the law, and that is based upon an
“individualized consideration of the offense, the offender, and the public interest.” ’
(People v. Sandoval (2007) 41 Cal.4th 825, 847 [].) An abuse of discretion is found
where the court ‘relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.’ (Ibid.) ‘A failure to exercise
discretion may also constitute an abuse of discretion.’ (Id. at pp. 847–848.) ‘ “A court
which is unaware of the scope of its discretionary powers can no more exercise that
‘informed discretion’ than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant's record.” ’ (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 [].)” (People v. Panozo (2021) 59 Cal.App.5th
825, 837.)
Under Penal Code section 1170, subdivision (b), “[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the court
27
shall, in its sound discretion, order imposition of a sentence not to exceed the middle
term, except as otherwise provided in paragraph (2).”
Under Penal Code section 1170, subdivision (b)(2), a trial courts discretion to
impose a prison sentence above the middle term when a statute allows for three possible
terms is limited. “The court may impose a sentence exceeding the middle term only
when there are circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term and the facts underlying those
circumstances have been stipulated to by the defendant or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court trial.” (Ibid.)
Factors in aggravation include those listed in rule 4.421(a) and (b).
Rule 4.423 identifies factors in mitigation that a court may consider in determining
which sentence to impose. While “remorse” at sentencing is not specifically identified as
a factor in mitigation, the rule does allow courts to consider other factors “that reasonably
relate to the defendant.” (Rule 4.423(c).) Given juries and prosecutors are not
responsible for finding mitigating factors, the risks identified in Lovelace v. Superior
Court (2025) 108 Cal.App.5th 1081 regarding rule 4.421(c) seem far less likely to apply,
and defendant has made no argument and offered no authority to suggest that remorse
cannot be considered as a factor in mitigation.
The People point out the clear flaw in defendant’s argument: the trial court did
not use a lack of remorse as an aggravating factor. Instead, the court indicated it was
willing to consider remorse as a factor in mitigation had the defendant expressed some
level of remorse at sentencing, but defendant did not. As a result, when the court
weighed the aggravating factors found by the jury against the factors in mitigation, all it
was able to consider in mitigation was defendant’s past criminal record. The court
explained the heavy weight of the factors in aggravation the jury did find under the facts
of this case, and then it imposed the upper term. In so doing, the court did not change its
mind. It indicated that after it heard from defendant, what it previously thought was
28
“likely” to be a middle-term case, turned out to be an upper-term case because the
defendant had not been able to offer additional mitigating factors once the hearing
occurred. On this record, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
WISEMAN, J. *
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
29