Filed 8/26/26 P. v. Stoll 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NOT TO BE PUBLISHED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
(Placer)
THE PEOPLE, C102350
Plaintiff and Respondent,
(Super. Ct. No. 62173659)
v.
MATTHEW STOLL,
Defendant and Appellant.
A jury found defendant Matthew Stoll guilty of 10 counts of molesting his adopted
daughter (victim) when she was under 14 and when she was 14 or 15. The court
sentenced him to 16 years in prison. Defendant appeals, contending: (1) there was
insufficient evidence of victim’s age for certain counts; (2) the trial court committed
instructional and evidentiary errors; and (3) the trial court improperly used an aggravating
factor in sentencing. We disagree and affirm. Undesignated statutory references are to
the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with committing 10 lewd acts on victim: four acts when
she was under 14 (§ 288, subd. (a)) and six acts when she was 14 or 15 (§ 288, subd.
(c)(1)). The charges included kissing her (count 1), touching her buttocks (count 2), and
touching her vagina (count 3) at a community pool when she was under 14; putting his
head on her breast also when she was under 14 (count 4); and kissing her in the kitchen
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when she was 14 or 15 (count 10). Defendant was also charged with committing three
lewd acts on victim’s sister (sister) when she was under 14. As to all charges, the
prosecution alleged three aggravating circumstances: (1) victim and sister were
particularly vulnerable; (2) the manner in which defendant carried out the crimes
indicated planning, sophistication, or professionalism; and (3) defendant took advantage
of a position of trust or confidence. (Cal. Rules of Court, rule 4.421(a)(3), (8) & (11).)
I. Preinstructions
Before opening statements, the trial court read preinstructions to the jury. The
court stated it would be giving instructions on the law after the jury heard all the evidence
in the case and told jurors not to make up their minds until they heard all the evidence,
received the instructions, and were deliberating. It also instructed the jury to disregard
any testimony the court ordered stricken from the record.
II. Police Officer Testimony
A police officer testified that he conducted a welfare check at victim’s home (the
police visit) after receiving a report that defendant had been molesting her. Victim was
16 years old and told the officer that defendant had “kissed her on the lips and touched
her boobs.” This all started when she was 13, and there had been multiple incidents.
The officer then interviewed defendant, and the jury heard the recorded interview.
Defendant denied touching victim inappropriately but admitted he had kissed victim on
the lips by the pool. He offered the following justifications: (1) victim started walking
around the house wearing “very low bathing suits” when she was “about” 13, and he and
victim started developing an attraction toward each other; (2) he was seeking counseling;
(3) his wife (mother) was aware of the issue; (4) “it’s not uncommon for an adopted
daughter and a father to look at each other not as biological”; (5) victim had been
sexualized; and (6) victim had a “way about her where she [was] just sort of seductive.”
When asked why victim would claim there was inappropriate touching, he admitted:
(1) he kissed victim two years ago; (2) six months later, he gave victim mouth to mouth
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and kissed her on the cheeks; and (3) about a year ago, he got close to victim on the
couch and started touching her chest because he had an attraction towards her.
The officer then interviewed sister. She stated there was no inappropriate
touching with her, but she had witnessed defendant kiss victim twice and overheard them
talking about being attracted to each other.
III. Victim’s Testimony
Victim testified that an incident occurred at the community pool near her house
when she was “either 12 or 13.” She was swimming in the pool with defendant, and
defendant “was touching [her] down there,” specifically rubbing her vagina. Defendant
also touched her buttocks. On the car ride home, defendant told her he was in love with
her and “leaned over and kissed” her on the lips.
Defendant kissed victim on the lips several times besides the pool incident. One
time occurred in the kitchen when she was also under age 14. And she was “maybe 15 or
in high school” when the other kisses occurred. Another time, victim and defendant were
home alone when defendant touched her breast. She walked up to him when he was
sitting in a chair, and he held her waist, touched her breasts with his hands, and put his
head on her breast. She believed she “was 12, 13” when this happened.
Victim told sister and mother about defendant being attracted to her, and they had
family meetings about it. Victim was told not to tell anyone because “we didn’t want
anything happening to [defendant].” Victim was also afraid she would “go back into the
system” if she said anything. She felt depressed, wanted to sleep with sister at night, and
started harming herself by plucking at her skin with a nail filer. She also kept a journal in
which she mentioned her discomfort with what defendant was doing to her.
The prosecution presented an exhibit appearing to be a hand-written contract
between victim and sister (the contract). According to the contract, the girls agreed to get
out of their family, “[m]ake up shit” about mother and defendant, and send defendant to
jail. Victim testified she did not write or recognize the contract and denied ever agreeing
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with sister to make something up about defendant to get him in trouble. On cross-
examination, victim repeated that the contract did not contain her handwriting or her
signature and denied wanting to get out of her family or send defendant to jail.
Defense counsel also asked victim about her journal. Victim admitted she wrote
some things in the journal, but not everything. One entry expressed hatred of mother and
a desire to get rid of her. Another stated the author could be a better wife to defendant
than mother. Victim denied having those feelings or writing those entries.
Defense counsel asked victim about a multidisciplinary interview she participated
in when she was 16. The interviewer asked victim how old she was at the pool, and
victim said, “about 15.” When asked about this exchange, victim told defense counsel
she was actually trying to refer to the year 2015 because she knew she was 13 when the
incident occurred. When defense counsel pressed about the same and similar statements
from the interview, victim insisted she was talking about the year, not her age. On
recross examination, defense counsel again asked victim about her timing statements to
the interviewer. Victim explained she got confused during the interview but insisted she
was kissed coming back from the pool when she was 12 or 13 and again in the kitchen
when she was 15.
IV. Sister’s Testimony
Sister testified she observed defendant and victim kiss multiple times, sometimes
“like almost making out kissing.” Defendant and victim also wrestled with each other
and “it kind of got physical where they were touching … each other.” At the pool,
defendant and victim had a “wedgie game” where defendant “put his hand down her
swimsuit” and there “was a time where they kissed at the pool.” Defendant and victim
talked “about running away together; having a kid together; getting married.” Sister
denied writing or signing the contract.
Sister participated in two multidisciplinary interviews. At the first interview, she
was 13 and did not accuse defendant of any inappropriate conduct. By the time of the
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second interview, she was 15 or 16 and “ready to disclose.” She disclosed that defendant
had touched her arm, legs, and stomach, and vagina with his hands.
After the police visit, victim and sister were removed from defendant’s home and
taken to mother’s relatives (aunt and uncle). Sister lived with aunt and uncle for about
two and a half years but ran away due to inappropriate touching. During cross
examination, defense counsel asked about uncle, but sister refused to discuss the topic
and left the courtroom. The court took a recess, during which the prosecution represented
that sister would be returning to testify and had been advised of defendant’s right to
cross-examine her. After the recess, sister returned to the witness stand and testified that
uncle had been abusing her for a year and a half. Defense counsel asked for details, but
sister said she did not want to talk about it. After additional questioning, sister stated that
uncle touched her whole body in a sexual way, specifically her legs, chest, vagina, and
“everything.” Defense counsel asked sister if she remembered a day when uncle pushed
her on the bed. Sister reluctantly answer the question and then refused to answer “any
more questions like this.” The court took another recess. When trial resumed, sister
continued to challenge defense counsel’s questions about uncle’s conduct. She denied
defense counsel’s suggestion that her accusations of uncle were lies.
Defense counsel turned to the police visit and asked sister if she told the officer
that she saw defendant kissing victim on the lips. As defense counsel showed her a
transcript of the visit, sister stated, “He admitted to kissing his own daughter on this
paper.” The court then granted defense counsel’s motion to strike sister’s statement
because there was no question posed. Defense counsel proceeded to question sister
regarding statements she made to the officer that were inconsistent with her earlier
testimony. Sister admitted she “did not tell [the officer] the full truth with a lot of
things.” The following dialogue then ensued:
“[DEFENSE COUNSEL]: And what you described to [the police officer] were –
was two kisses – one of which you saw and the other you didn’t see.
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“[SISTER]: I have a question.
“[DEFENSE COUNSEL]: Your Honor, can you direct the – the witness to answer
the questions?
“THE COURT: Did you say you have a question?
“[SISTER]: Yes.
“THE COURT: For – for the Court or for what?
“[SISTER]: Kind of about this. Yeah. Yeah. For the Court.
“THE COURT: What is your question?
“[SISTER]: How are you gonna deny that he said --
“[DEFENSE COUNSEL]: Your Honor, I’m gonna ask her to stop --
“[SISTER]: No. He – no. He admitted in this paper that he kissed her.
“THE COURT: Hold on. Hold on. Hold on.
“[DEFENSE COUNSEL]: Your Honor, I’m gonna --
“[SISTER]: Are we all blind now?
“THE COURT: Hold on.
“[SISTER]: Hold up. ‘He told me that he has kissed her sister and you.’
“THE COURT: Hold on. Please stop, [sister] – [sister]. Please stop. Thank you.
Okay. Members of the jury, we’re going to break for the day.”
Before the jury left, defense counsel asked the court to instruct the jury that it
could not consider what sister said. Defense counsel urged the court to immediately give
the instruction before they left and had “a chance to think about it.” The court refused to
decide whether such an instruction was warranted until the next day.
The next day, defense counsel stated he received additional information that sister
had been bragging to a potential witness about “how she made a big scene and flipped off
the [c]ourt yesterday” and that “she can … say anything she wants in the courtroom and
nothing will happen to her.” He requested “that the jury be instructed to completely
ignore [sister’s] last outburst and that it’s not evidence” and that sister “be instructed in
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the strongest possible terms to knock this off.” He asked that the instruction be given
sooner rather than later, arguing it was “misleading to this whole process for this jury to –
to go home and not be told that what just happened here was inappropriate, stricken, to be
disregarded.” The court declined to instruct the jury “right now,” opting to proceed with
the next witness.
After that witness was excused, defense counsel asked for a jury instruction that
“what happened yesterday at the end of the day was not to be considered by them as part
of any evidence.” The court asked for clarification on what specifically defense counsel
wanted the jury to disregard, and defense counsel identified the “last outburst that
resulted in [sister] talking about” defendant’s admission of kissing victim. Defense
counsel clarified that he was “not asking her to be directed to do anything.” The court
acknowledged that sister, a “teenage witness,” had “been very defiant to the defense
attorney and even to the [c]ourt. She has walked off the witness stand and out of the
courtroom without permission of the [c]ourt twice. At the end of the day yesterday, she
became very defiant on the witness stand in the presence of the jury causing the [c]ourt to
adjourn the day early.” But the court also noted its limited “ability to compel this type of
witness to answer questions or to curtail or correct defiant behavior.” The court stated it
could tell sister to change her “conduct and be more respectful,” but was not sure what
defendant wanted beyond that. Defense counsel stated he was not requesting the court to
“do anything with [sister] except be mindful of the fact that she may become more
defiant.” He also wanted the court to tell the jury “what [sister] said was not in response
to any question and cannot be considered,” arguing this should have been done
immediately. The court responded that it would “take a careful step-by-step process” and
require defense counsel to identify specifically what statement he wanted stricken.
Defense counsel stated he did not have the transcript, and the issue should have been
addressed when the statement was made. The court again stated it would consider an
instruction to strike a specific statement if defense counsel identified it.
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When sister retook the stand, defense counsel continued his cross-examination.
Sister admitted she had just talked to her cousin about what happened at trial the day
before. Sister told cousin she had refused to answer questions and left the courtroom
twice without permission. She also told cousin she “could do anything [she] wanted in
the courtroom and nothing would happen to [her].”
The next trial day, defense counsel brought a transcript of sister’s testimony from
five days before and moved for a mistrial. He argued the jury should have been
instructed immediately regarding her non-responsive testimony. The court denied the
mistrial motion but granted defense counsel’s earlier request to instruct the jury to
disregard specific statements. But defense counsel withdrew that request. He argued that
the instructional delay was “highly prejudicial” and sister’s “prejudicial approach to these
proceedings designed to not answer questions and to provide information [had] infected
these proceedings so much that a mistrial should be granted.” He also argued the court
should not have allowed sister to ask a question. The court restated its denial of the
motion, noting that the information sister “blurted out, which she shouldn’t have done,
[related] to statements that were already in front of the [c]ourt.” The court also
commented that it did not know what sister, a 17-year-old witness, was going to ask: “I
don’t know if she’s gonna ask if she can take a break; if she’s not feeling well. I don’t
know. So I allowed her to do that to see what her issue was.”
The court later admonished sister for discussing her testimony with other
witnesses in violation of a pretrial court order.
V. Child Sexual Abuse Accommodation Syndrome Evidence
The prosecution moved to admit expert testimony on child sexual abuse
accommodation syndrome (CSAAS). Defense counsel objected, arguing the prosecution
had failed to explain how the expert’s testimony could help a jury understand anyone’s
behavior. The court granted the motion because there was a delay in reporting the
alleged abuse and victim’s and sister’s credibility were at issue. Defense counsel then
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offered a new reason to exclude the CSAAS testimony: he argued the testimony was no
longer necessary because every person on the jury was “aware of the principles that are
being asserted here as some kind of … junk science.” The court rejected that argument.
A clinical psychologist testified as an expert in CSAAS. According to his
testimony (which spans 69 pages): (1) he did not know anything about this particular
case; (2) CSAAS is not a diagnostic tool, so he could not determine whether someone had
been abused; (3) CSAAS can help laypeople understand common myths and
misperceptions of child sexual abuse; and (4) CSAAS consists of five components –
secrecy, helplessness, coping, disclosure, and retraction – but each component is not
necessarily present in every case. The psychologist rejected the idea that the lay public
knows everything about child sexual abuse because “there are still things that people
either overestimate or kind of overlook,” including expecting that a child will appear sad
or distressed when talking about sexual abuse or thinking “no one else can be around for
abuse to occur.” Also, a lot of people “still remain surprised that the victim of sexual
abuse seeks out the attention of their perpetrator.”
As to the secrecy component, the psychologist explained that the perpetrator is
often a “known, trusting person in the kids’ life” who is “motivated to make sure other
people do not know what is happening.” The secrecy can be attributed to various
influences, including the following: (1) the perpetrator threatens to hurt someone if
anyone finds out; (2) the perpetrator normalizes sexual talk and touch; (3) the child often
looks up to and cares about the perpetrator; and (4) “most sexual abuse on kids is not
done in a painful way.”
The psychologist explained that the helplessness component concerns the power
dynamic between the adult and child. When the adult serves an authoritative role, like a
parent or coach, that adult is the gatekeeper for privileges. And if the child tells someone
and nothing happens, the child can have a harder time dealing with the abuse and be “in it
for longer.”
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As to the coping component, the psychologist testified that kids of abuse can find
ways to cope behaviorally, cognitively, and emotionally. Some kids engage in self-harm,
drinking, and feeling depressed. Others immerse themselves in school or sports and stay
away from home longer or try to be in public spaces, but abuse can still occur out in the
open. Journaling is also a way to cope and try to make sense of what’s going on. The
psychologist affirmed there is “no behavioral marker” or “specific way a kid will appear
when they’re being abused.” Also, a parent may not realize the other parent is abusing
their child because “child sexual abuse is typically not based on sex or sexual
gratification.” In fact, most people who sexually abuse kids are not pedophiles.
As to the disclosure component, the psychologist testified that some people think
an abuse reporting delay makes the abuse allegation unconvincing, but he explained that
“the closer the relationship the child has with their perpetrator,” the longer the delay, and
“the majority of kids are not telling for months, years, even till after they turn 18.” Also,
kids may initially deny abuse and then disclose it later, or the initial disclosure can be
incremental, tentative, or piecemeal. The psychologist also explained that it is possible
for a child to be removed from a home where they are being abused and then placed in
another home where they are also abused. He explained this is because the child’s
vulnerabilities stay “pretty consistent.”
When asked if sexual abuse can have an emotional effect on the victim, including
anger issues, the psychologist responded in the affirmative. He explained that feeling
unprotected or out of control “can cause agitation, irritability, maybe even behavioral
outbursts,” but some kids can be very composed. He also affirmed that going through the
court process can trigger a reaction.
As to the retraction or recanting component, the psychologist testified that a
sizable minority of kids who disclose abuse will later say the abuse did not happen even
though it did. These kids may do this because of the negative consequences of telling,
not wanting to deal with another change, and trusting promises that the abuser will stop.
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At the close of his direct testimony, the psychologist reiterated that the CSAAS
components are not in every child sexual abuse case and CSAAS is really about “helping
people understand why those things … can happen.”
On cross-examination, the psychologist affirmed the following: (1) he had not
reviewed any reports concerning this case; (2) he did not know what questions would be
asked during his testimony; (3) CSAAS is not a diagnostic tool; (4) there are no bright
line symptoms indicating a person had been abused; (5) “you can’t attribute a behavior to
saying this person has definitely been sexually abused”; (6) CSAAS is “used to help
people understand why kids react certain ways that may not be expected”; and (7) an
abused child can be angry or not, can display outward emotion or not, can remember a lot
of details about being abused or not, and can appear normal and happy or not.
VI. Closing Arguments, Verdict, and Sentencing
In closing argument, the prosecution argued defendant’s statements at the police
visit showed he was guilty of the charged offenses. Also, victim testified to the offenses
charged and told the jury she was the requisite age when the offenses occurred. As to
sister’s behavior on the stand, the prosecution admitted “[i]t as a rough couple of days,”
but urged the jury to think about “how hard it is for a 17-year-old girl” to answer
questions about a private and probably shameful part of her life.
Defense counsel argued both victim and sister were lying and any contact
defendant admitted at the police visit lacked sexual intent. As to sister, he argued her
conduct as a witness was consistent with her lack of credibility.
The jury found defendant guilty of all 10 counts as to victim. As to sister, the trial
court dismissed one count, and the jury found defendant not guilty of the two remaining
counts. In a separate trial on three aggravating factors, the jury found true as to all 10
guilty counts the factor that defendant took advantage of a position of trust or confidence.
The jury found another factor untrue and could not reach a verdict on the remaining
factor.
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The court considered defendant’s probation eligibility and found various factors
listed in California Rules of Court, rule 4.414, applicable. In particular, the court found
victim was particularly vulnerable, defendant inflicted physical or emotional harm, and
defendant took advantage of a position of trust or confidence. (Cal. Rules of Court, rule
4.414(a)(3), (4), (9).) Based on those factors and the totality of the circumstances, the
court denied probation.
Turning to the prison sentence, the court noted the single aggravating factor the
jury found true and found two mitigating factors applicable. The court then found that
the aggravating circumstances outweighed the mitigating circumstances and imposition
of the lower term would be contrary to the interests of justice. The court imposed the
middle term of six years for count 1. After finding that each count reflected a distinct and
separate crime, the court imposed consecutive, fractional middle terms on the remaining
counts. The court imposed an aggregate sentence of 16 years in state prison.
Defendant timely appeals.
DISCUSSION
I. Sufficient Evidence of Victim’s Age
Section 288 makes it a crime for a person to commit a lewd act on the body of a
child under age 16. (§ 288, subds. (a) & (c)(1).) If the child is under 14 years of age, the
offender is punished by imprisonment for three, six, or eight years. (§ 288, subd. (a).) If
the child is 14 or 15, and the offender is at least 10 years older, the offender is punished
by imprisonment for one, two, or three years. (§ 288, subd. (c)(1).) Defendant contends
counts 1, 2, 3, 4, and 10 must be reversed because there was insufficient evidence that
victim was the requisite age at the time the acts occurred. We disagree.
“To determine the sufficiency of the evidence to support a conviction, we review
the entire record in the light most favorable to the prosecution to determine whether it
contains evidence that is reasonable, credible and of solid value, from which a rational
trier of fact could find that the elements of the crime were established beyond a
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reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) “We need not be
convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether
‘ “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” ’ ” (Ibid., italics omitted.) And we do not resolve credibility issues or
evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of
those issues and conflicts is “the exclusive province of the trier of fact” (ibid.), so all
conflicting evidence must be resolved in favor of the jury’s decision (People v. Kurey
(2001) 88 Cal.App.4th 840, 849).
Specific to counts 1 through 4, defendant contends the acts were not “placed in a
time frame of other events such as a birthday or first day of school.” And specific to
counts 1 through 3, defendant contends victim told the multidisciplinary interviewer she
was 15, not under 14. These contentions are unpersuasive. A victim “must be able to
describe the general time period in which [the] 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.” (People v. Jones
(1990) 51 Cal.3d 294, 316.) Victim satisfied this requirement when she testified she was
12 or 13 years old when counts one through four occurred. Her testimony specifically
identified her age, so it did not require additional details to constitute substantial evidence
of when the acts occurred. And her statements to the multidisciplinary interviewer
merely raised a credibility issue that the jury resolved in her favor. (See People v.
Crabtree (2009) 169 Cal.App.4th 1293, 1323-1324.) We cannot reweigh this evidence or
disturb the jury’s credibility finding.
Specific to count 10, defendant contends the conviction must be reversed because
victim testified she was under 14 when defendant kissed her in the kitchen, not 14 or 15
as required under the charged offense. (§ 288, subd. (c)(1).) Again, defendant highlights
a mere conflict in the evidence. Victim testified she was under 14 when defendant kissed
her in the kitchen, but she also testified on recross examination that she was 15 when this
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happened. Both statements constitute substantial evidence. (People v. Young, supra,
34 Cal.4th at p. 1181 [testimony of a single witness is sufficient to support a conviction].)
A reasonable trier of fact could have resolved this conflict in favor of victim being 15, so
we cannot disturb the jury’s resolution. (See People v. Smith (2011) 198 Cal.App.4th
415, 427 [“While Doe’s testimony was internally inconsistent, it constituted substantial
evidence that defendant’s molestation of Doe when she was eight years old involved
substantial sexual conduct”].)
II. CALCRIM No. 207
Defendant contends counts 1 through 4 must be reversed because the trial court
relieved the prosecution of its burden of proof regarding victim’s age by giving
CALCRIM No. 207. We disagree.
A. Additional Background
As to counts 1 through 4, the trial court instructed the jury with CALCRIM No.
207 as follows: “It is alleged that the crimes charges in this case occurred between the
following dates: Counts 1 through 4, April 2nd, 2017, through April 1st, 2018.” Those
dates correspond with the time when victim was 13 years old. The instruction continued:
“The People are not required to prove that the crimes took place exactly on those days but
only that they happened reasonably close to those days.” The trial court discussed this
instruction with the parties, and defendant did not object. The court also instructed the
jury on the elements of the charged offenses, specifically the element that victim was
under the age of 14 when the acts underlying counts 1 through 4 occurred. The court
repeated that age element in its unanimity instruction and instructed the jury to consider
the instructions together. In closing argument, the prosecutor argued he had proved the
age element for each of these counts because victim testified she was 13 when they
occurred.
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B. Analysis
We review a claim of instructional error de novo. (People v. Cole (2004)
33 Cal.4th 1158, 1208.) “In assessing a claim of instructional error or ambiguity, we
consider the instructions as a whole to determine whether there is a reasonable likelihood
the jury was misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.) We also consider the
evidence and the arguments of counsel. (People v. Huggins (2006) 38 Cal.4th 175, 193.)
We interpret an instruction to support the judgment if the instruction is reasonably
susceptible to such interpretation. (People v. Young, supra, 34 Cal.4th at p. 1202; People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) A defendant who argues the jury
erroneously interpreted an instruction must demonstrate a reasonable likelihood that the
jury understood the instruction in an erroneous way. (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 433.) We presume jurors are “intelligent persons capable
of understanding and correlating” jury instructions. (People v. Martin (1983)
150 Cal.App.3d 148, 158.)
CALCRIM No. 207 accurately states the general rule that when a crime is alleged
to have occurred “on or about” a certain date, it is not necessary for the prosecution to
prove the offense was committed on that precise date, but only reasonably close to that
date. (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.) An exception to that general
rule exists when the time of the offense is material. (§ 955.) On that point, the jury was
also instructed with CALCRIM No. 1110 and specifically that the prosecution needed to
prove victim was under the age of 14 when counts 1 through 4 occurred. We presume the
jury was able to correlate these two instructions and understand that CALCRIM No. 207
reflects a general rule while CALCRIM No. 1110 sets forth a specific time limit and the
prosecution was required to prove that victim was under 14 when counts 1 through 4
occurred. Indeed, the prosecution emphasized this element and victim’s testimony that
she was 14 when these counts occurred. Because we resolve this contention on the merits
and find no error, there is no need to address whether defendant forfeited the contention,
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whether his trial counsel rendered ineffective assistance, or whether the error was
prejudicial.
III. Sister’s Behavior
Defendant contends he was denied a fair trial because the trial court failed to
immediately instruct the jury to disregard sister’s disruptive behavior. We review the
trial court’s evidentiary and courtroom control decisions for abuse of discretion (People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Miller (1960) 185 Cal.App.2d 59, 77)
and conclude the trial court acted within its discretion.
According to defendant, victim was disruptive when she “stormed” out of the
courtroom without permission. Although defense counsel requested the court to instruct
sister to “knock this off” and the court offered to tell sister to “change her conduct and be
more respectful,” defense counsel later clarified he was not requesting the court to “do
anything with [sister] except be mindful of the fact that she may become more defiant.”
This means defendant abandoned his request for an instruction regarding sister’s
unpermitted departures, thereby forfeiting the issue on appeal. (See People v. Ramirez
(2006) 39 Cal.4th 398, 472.)
According to defendant, victim’s disruptive behavior also included her questions
about defendant’s statements at the police visit. The court ultimately granted defendant’s
motion to instruct the jury to disregard those questions, but defendant again withdrew his
request. Nevertheless, defendant contends the trial court erred because the instruction
should have been given immediately. We are not persuaded. Trial courts are vested with
wide discretion as to when to instruct the jury (People v. Chung (1997) 57 Cal.App.4th
755, 758), and this jury knew instructions would be provided after all evidence had been
presented and knew what they had to do if the court ordered testimony stricken. Because
we presume the jury would have followed those instructions (People v. Buenrostro
(2018) 6 Cal.5th 367, 431), we cannot conclude the trial court abused its discretion by
declining to immediately instruct the jury to disregard victim’s questions.
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IV. Review of Subpoenaed Documents
Defendant subpoenaed various records from health facilities and a school district
concerning victim and sister. After the prosecution moved to quash the subpoena,
defendant agreed the court needed to review the records in camera to determine which
records could be released. The court reviewed eight sets of records, released limited
redacted documents, and found the remaining documents “protected by the right to
privacy and the psychotherapist-patient privilege.” Defendant now requests that we
review the non-released documents for relevance and admissibility.
Although the People do not oppose that review, the non-released documents were
never filed with this court. Defendant filed a motion to augment the appellate record to
include a “copy of flash drive including documents provided on return of defense
subpoena duces tecum.” We granted that motion, but the trial court clerk could not locate
any flash drives in the court’s record. We informed defense counsel of this issue and
advised him to “immediately proceed in accordance with California Rules of Court, rule
8.340(c)” if there was a discrepancy in the augmented record. Defense counsel did not
take any action to correct or augment the record. Because there are no records for us to
review, we treat this contention as forfeited. (See People v. Barton (1978) 21 Cal.3d 513,
519-520 [appellant’s duty to provide adequate record for review and to correct missing or
incomplete record].)
V. CSAAS Testimony
Defendant challenges the psychologist’s testimony on the following topics (the
challenged testimony): (1) journaling serves as a form of coping with abuse; (2) the
abused person can present anger issues; (3) abuse can occur in the open; (4) abuse can
occur in successive placements; (5) most abusers are not pedophiles; and (6) the abuser
may not be motivated by sexual gratification. Defendant contends the challenged
testimony exceeded the allowable scope of CSAAS testimony in three ways. We take
each in turn, rejecting all three on the merits below.
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First, he contends the challenged testimony improperly tracked aspects of the
prosecution’s case. But defendant did not raise this contention in the trial court, so he
failed to preserve it for appeal. (People v. Williams (2008) 43 Cal.4th 584, 620.) The
contention also fails on the merits.
Expert testimony on the common reactions of child molestation victims may be
admitted in appropriate cases to disabuse jurors of commonly held misconceptions about
child abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).) A jury
can use CSAAS evidence to decide whether the alleged victim’s conduct was consistent
with the conduct of someone who has been molested. (People v. Page (2025)
114 Cal.App.5th 1022, 1030-1031.) The evidence must “must be targeted to a specific
‘myth’ or ‘misconception’ suggested by the evidence,” but it cannot be so case-specific
as to “allow the jury to apply the syndrome to the facts of the case and conclude the child
was sexually abused.” (People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.)
Here, we conclude the CSAAS testimony did not cross the line into improper case-
specific testimony. Defendant picks out isolated topics from the psychologist’s 69-page
testimony. While those topics happened to correspond with victim’s or sister’s behavior,
they were broadly applicable to many abuse victims. The psychologist also expressly
stated he was not familiar with the facts of the case, and he repeatedly cautioned that he
and CSAAS cannot diagnose child abuse. Under these circumstances, the psychologist’s
testimony was proper.
Second, defendant contends the challenged testimony was improper because it did
not contradict any commonly held misconceptions about victims of child sexual abuse.
We disagree. Defendant cites no authority to support this contention and no evidence
indicating the challenged testimony was common knowledge to the jurors. In any event,
we agree with People v. Sedano (2023) 88 Cal.App.5th 474 (Sedano) that “[d]espite
continuing advancement in the understanding of how children commonly react to sexual
abuse, CSAAS evidence remains ‘a valid and necessary component of the prosecution
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case in matters involving child abuse.’ ” (Id. at p. 479, fn. 5, quoting People v. Munch
(2020) 52 Cal.App.5th 464, 466 [concluding reasoning in McAlpin “is as valid today as it
was in 1991”]).) The jury “need not be wholly ignorant of the subject matter of the
opinion in order to justify its admission.” (McAlpin, supra, 53 Cal.3d at p. 1299.) Expert
testimony is admissible “ ‘whenever it would “assist” the jury.’ ” (Id. at p. 1300.) Here,
the psychologist’s testimony aided the jury in assessing sister’s and victim’s credibility.
And third, defendant contends the psychologist’s testimony that abusers are
usually not pedophiles and may not be motivated by sexual gratification was improper
because it concerned the abuser rather than the victim. Defendant did not raise this
contention in the trial court, so he failed to preserve it for appeal. (People v. Williams,
supra, 43 Cal.4th at p. 620.) The contention also fails on the merits. Although
CSAAS testimony cannot be used to suggest that a defendant fits the profile of an abuser
(People v. Robbie (2001) 92 Cal.App.4th 1075, 1084), the psychologist did not make
these statements to create an abuser profile. He made them in the context of explaining
why a child may not show signs of being abused and why a non-abusing parent might not
realize the other parent is abusing their child. That explanation served the proper purpose
of dispelling a common misconception regarding child sexual abuse and showing there is
no profile for a typical child molester. (See Sedano, supra, 88 Cal.App.5th at p. 483;
McAlpin, supra, 53 Cal.3d at pp. 1302-1304.)
Because we reject defendant’s contentions regarding the CSAAS testimony on the
merits, there is no need to address his ineffective assistance of counsel claim.
VI. Aggravating Factor
A. Additional Background
Just before the bifurcated jury trial on aggravating factors, defense counsel argued
that determining what would constitute an ordinary violation of a criminal statute might
create a constitutional vagueness problem. The trial court rejected the argument and
proceeded with trial.
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The court instructed the jury that it could not find the position of trust aggravating
factor true unless it agreed the prosecution had proved that: (1) “the defendant took
advantage of a position of trust or confidence with the victim to commit the crime”; and
(2) “the defendant’s conduct was distinctively worse than an ordinary commission of the
underlying crime.” The prosecution argued this factor applied because defendant was the
victim’s adopted father and “[t]here [are] no more defined position of trust than a parent.”
Defense counsel argued the jury had “been presented with zero evidence relating to what
is the ordinary commission of the underlying crime” because the prosecution had not
given them anything to compare defendant’s conduct with. In rebuttal, the prosecution
argued that “a father has a position of trust over his child” and “that alone … is more than
[] normal.”
During deliberations, the jury asked for clarification on “what the distinction is
between what an ordinary commission of the crime is as opposed to worse than ordinary,
as we are having issues in determining what is considered ordinary when committing
these crimes.” In response, the trial court instructed the jury to read all instructions
carefully and to read CALCRIM No. 200, specifically the following instruction: “Some
words or phrases used during this trial have legal meanings that are different from their
meanings in everyday use. These words and phrases will be specifically defined in these
instructions. Please be sure to listen carefully and follow the definitions I give you.
Words and phrases not specifically defined in these instructions are to be applied using
their ordinary, everyday meanings.” After further deliberation, the jury found the
position of trust aggravating factor true.
B. Analysis
Defendant contends the trial court improperly relied on the position of trust
aggravating factor for purposes of sentencing because the jury was unable to assess
whether defendant’s conduct was distinctively worse than an ordinary commission of the
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underlying crime.1 In defendant’s view, the phrase “ordinary commission of the
underlying crime” does not have a plain, unambiguous meaning so the jury was unable to
apply this phrase. In his reply brief, defendant also contends that phrase is
unconstitutionally vague. We reject defendant’s contentions.
The “distinctively worse” standard requires the fact finder to consider “whether
the manner of the crime’s commission was distinctively worse ‘when compared to [the]
other ways in which such a crime could be committed.’ ” (Chavez Zepeda v. Superior
Court (2023) 97 Cal.App.5th 65, 89.) We agree with Chavez Zepeda that this standard is
within a jury’s competence and is not unconstitutionally vague. (Id. at p. 91.)2 We also
hold that this standard does not have a special legal meaning that departs from common
usage or requires additional clarification via instruction. (See People v. Kimbrel (1981)
120 Cal.App.3d 869, 872 [no duty to give clarifying instruction where terms are
commonly understood].) Here, the court instructed the jury it could not find the position
of trust aggravating factor true unless it concluded that “the defendant’s conduct was
distinctively worse than an ordinary commission of the underlying crime.” This
instruction conveyed the applicable standard and did not require further clarification.
1 Defendant also contends the trial court improperly used this factor to deny probation.
Defendant is mistaken. The trial court considered the factors specific to probation in
California Rules of Court, rule 4.414. No jury finding is needed to find those factors
applicable. (See Cal. Rules of Court, rule 4.414(c).) And defendant provides no basis for
us to conclude that the trial court “must have been influenced” by the jury’s finding on
the position of trust aggravating factor. (See People v. Hardy (1992) 2 Cal.4th 86, 150.)
2 For the first time in his reply brief, defendant addresses Chavez Zepeda and contends he
is trying to fall into the opening Chavez Zepeda left for “a conclusion that a particular
aggravating circumstance may be unconstitutionally vague.” (Chavez Zepeda, supra,
97 Cal.App.5th at p. 92.) In fairness to the People, we do not address this new
contention. (Golden Door Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 559.)
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DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
MAURO, Acting P. 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.
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