People v. Gonzales

Filed 10/23/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B276101
(Super. Ct. No. 2014011901)
Plaintiff and Respondent, (Ventura County)

v.

RICHARD GONZALES, JR.,

Defendant and Appellant.

Here we affirm a judgment involving various counts of
Penal Code violations relating to child molestation. The
prosecution introduced evidence of uncharged sex offenses
defendant committed against the victim through the victim's own
testimony, not through the testimony of third parties. (Evid.
Code, § 1108, subd. (a).) Such testimony, though not common, is
in accord with established precedent. We are concerned,
however, with the relationship between CALCRIM No. 1191, 1

In March 2017, CALCRIM No. 1191 was modified to
1

distinguish uncharged offenses offered as propensity evidence
from charged offenses offered for that purpose. CALCRIM No.
1191A now applies to the former, while CALCRIM No. 1191B
applies to the latter.
instructing on evidence of uncharged sex offenses against the
victim, and Evidence Code 1108. These concerns are well stated
in Justice Perren's concurring opinion.
A jury found Richard Gonzales, Jr. guilty of two
counts of oral copulation with a child 10 years old or younger
(Pen. Code, §§ 288.7, subd. (b), 2 289) (counts 1 and 3); three
counts of lewd acts with a child (§ 288, subd. (a)) (counts 2, 4 and
6); and one count of sexual penetration of a child 10 years old or
younger (§§ 288.7, subd. (b), 289) (count 5). The jury also found
as to counts 2, 4 and 6 that Gonzales had substantial sexual
contact with the child. (§ 1203.066, subd. (a)(8).)
The trial court sentenced Gonzales to three
consecutive 15-years-to-life terms on counts 1, 3 and 5, for a total
term of 45 years to life. The court stayed six-year sentences on
counts 2, 4 and 6 pursuant to section 654.
We strike fines imposed on counts 2, 4 and 6. We
reverse the order requiring Gonzales to pay the public defender
but do not remand for a hearing on Gonzales’s ability to pay. In
all other respects, we affirm.
FACTS
L.W. was born on October 20, 2005. In January 2010,
L.W. lived with her mother, J.W., and two-year-old brother, E.W.,
in a studio apartment in Santa Barbara. In October 2010, J.W.
met Gonzales who was 41 years old. Gonzales moved into the
apartment with J.W. and her children later that year. J.W. and
Gonzales slept on a bed and the children slept on a futon.

2All statutory references are to the Penal Code unless
stated otherwise.

2
 (a) Charged Offenses
Counts 1 and 2
The second day Gonzales lived in the Santa Barbara
apartment, J.W. and E.W. were in the bathroom with the door
closed. Gonzales called L.W. to him. When she arrived, Gonzales
put his penis in her mouth and moved it back and forth. He
stopped when the toilet flushed.
Counts 3 and 4
When L.W. was seven years old, she was living with
her family in a motel in Ventura. Gonzales was living with them.
When J.W. and E.W. were across the street at a store, Gonzales
told L.W. to get on her knees. She thought he was going to make
her scrub the floor. He put his penis in her mouth and moved it
back and forth. He stopped when he heard the key in the door.
Counts 5 and 6
In September 2013, L.W.’s mother was out and L.W.
was lying on the bed watching television with her brother.
Gonzales called L.W. over to the other bed. He got on top of her,
pulled down her pants and underwear and inserted his penis into
her vagina. When it was over, Gonzales told L.W. not to tell her
mother.
Uncharged Conduct
In December 2011, L.W. moved to Arizona with her
family and Gonzales. L.W. was in the first grade. They rented a
four-bedroom house. L.W. had her own room. L.W. kept the door
to her room open at night because she was afraid of the dark.
One night Gonzales came into L.W.’s room and locked
the door. He climbed into bed with her, pulled down her pants
and underwear and inserted his penis into her vagina.

3
 One night Gonzales went to lie down with L.W. J.W.
went to check on them because they were gone a long time. She
found the door to L.W.’s room locked. She knocked and told
Gonzales to open it. After a delay, he did so. J.W. asked
Gonzales why the door was locked. Gonzales told her L.W. was
afraid a monster would enter her room.
J.W.’s job ended and the family and Gonzales stayed
with friends, Alex Ferchand and his girlfriend Nicki. Nicki told
Ferchand that Gonzales was showering with the children.
Ferchand confronted Gonzales. Gonzales said he was wearing
shorts. Ferchand told Gonzales that he did not allow that in his
house.
In December 2012, when L.W. was seven years old,
the family was staying with Gonzales in Ventura. One day while
L.W.’s mother and brother were in the bathroom, Gonzales came
up to her with his penis sticking out. L.W. was eating. She
pushed him away and told him no. The toilet flushed ending the
incident.
L.W. could not remember how many times Gonzales
put his penis in her mouth over the course of the years he lived
with her family. She guessed Gonzales put his penis in her
vagina three times.
Investigation
In September 2013, L.W. told her mother, “Ricky
raped me.” Her mother confronted Gonzales who denied it. L.W.
also told fellow students. The students reported to the school
principal that L.W. spoke of inappropriate sexual behavior. The
principal called the police.
Ventura Police Detective Eric Vazquez interviewed
L.W. She told him of the instances where Gonzales had placed

4
his penis in her mouth and vagina. She said Gonzales put his
penis in her vagina “probably three times” and in her mouth
“probably more.” She said Gonzales asked her if he could put his
penis in her butt. L.W. said no.
Regina D’Aquilla, a sexual assault nurse, interviewed
and examined L.W. D’Aquilla noticed an injury to L.W.’s hymen
consistent with penetration. L.W. recounted that Gonzales
placed his penis in her mouth and vagina. She said he did not
place his mouth on her vagina and that she rejected his attempt
to put his penis in her butt. L.W. told D’Aquilla that she had a
vaginal infection for which her mother gave her medication. L.W.
thought the infection was due to Gonzales having put his penis in
her vagina.
During therapy, L.W. made two stick-figure
drawings. One depicts Gonzales putting his penis in her mouth
while she is on her knees; the other depicts Gonzales lying on top
of her while her brother watches television.
CSAAS Testimony
Jody Ward, Ph.D., a clinical and forensic
psychologist, testified about Child Sexual Abuse Accommodation
Syndrome (CSAAS). She said CSAAS is not used to determine
whether a child has been abused, but it is helpful for
understanding a child’s reaction to abuse. Ward did not speak
with anyone or review any evidence relating to the case.
Ward testified it is normal for a child to still want
comfort from the abuser and to act loving and trusting toward
him, for a child to fail to cry out for help, and for a child to try to
forget about the abuse. Commonly a child will not remember
each incident or the precise details of each incident.

5
 Defense
Gonzales testified in his own defense. He denied
committing the alleged acts or having sexual contact with L.W.
He said L.W. lied in her interviews and testimony. He offered to
provide a DNA sample, but the police would not take it.
DISCUSSION
I
Gonzales contends instructing the jury with
CALCRIM No 1191 on uncharged acts improperly allowed L.W.
to corroborate her own testimony.
Evidence Code section 1101, 3 subdivision (a)
provides, in part: “Except as provided . . . in section[] . . . 1108,
. . . evidence of a person’s character or a trait of his or her
character . . . is inadmissible when offered to prove his or her
conduct on a specified occasion.”
Section 1108, subdivision (a) provides: “In a criminal
action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense
or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.”
Here Gonzales objected to the admission of
uncharged acts of sexual misconduct with L.W. under section 352
as more prejudicial than probative. The trial court overruled the
objection. Gonzales does not contend on appeal that the evidence
was inadmissible.
The trial court instructed the jury with CALCRIM
No. 1191 as follows:

3 All statutory references in section I are to the Evidence
Code.

6
 “The People presented evidence that the defendant
committed the crimes of lewd act with child under the age of 14
[L.W.] that were not charged in this case. These crimes are
defined for you in these instructions.
“You may consider this evidence only if the People
have proved by a preponderance of the evidence that the
defendant in fact committed the uncharged offenses. Proof by a
preponderance of the evidence is a different burden of proof from
proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more
likely than not that the fact is true.
“If the People have not met this burden of proof, you
must disregard this evidence entirely.
“If you decide that the defendant committed the
uncharged offense, you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to
commit sexual offenses, and based on that decision, also conclude
that the defendant was likely to commit and did commit the
charged crimes in this case. If you conclude that the defendant
committed the uncharged offenses, that conclusion is only one
factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of the
crimes charged in this case. The People must still prove each
charge and allegation beyond a reasonable doubt.
“Do not consider this evidence for any other purpose
except for the limited purposes set forth elsewhere in these
instructions.”
It appears the gravamen of Gonzales’s argument is
that CALCRIM No. 1191 should be given only where the evidence
of uncharged sexual misconduct comes from third parties, and

7
not from the victim-witness herself. Gonzales’s theory is that
although testimony about a defendant’s uncharged sexual
misconduct from a third party makes it more likely the victim’s
testimony is truthful, similar testimony from the victim herself
adds nothing to her credibility.
But the argument relates to the admissibility of the
victim’s evidence of uncharged misconduct, not the instruction.
Gonzales does not challenge the trial court’s ruling admitting the
evidence for the purpose stated in CALCRIM No. 1191. Given
that the evidence is admissible for such purpose, CALCRIM No.
1191 correctly instructs the jury.
Gonzales argues that the instruction violates
California law. In People v. Stanley (1967) 67 Cal.2d 812, 816-
818, our Supreme Court recognized the problem raised by the
victim-witness’s testimony of uncharged crimes. The court,
however, refused to adopt a rigid rule for the admission or
exclusion of such evidence. Instead, the court said admission
should be determined by “‘a weighing of the probative value of
the evidence offered against the harm it is likely to cause.’” (Id.
at p. 818.) In People v. Scott (1978) 21 Cal.3d 284, 297, our
Supreme Court reversed a conviction for child molestation and
incest on other grounds. For guidance on retrial, however, the
court stated that evidence of uncharged sexual conduct by the
testimony of the victim is inadmissible. In so stating, the court
cited Stanley without discussion. (Ibid.)
Both Stanley and Scott were decided prior to the
enactment of section 1108, subdivision (a). (Added by Stats.
1995, ch. 439, § 2.) Prior to the enactment of section 1108,
evidence of the defendant’s disposition to commit a sex offense
was generally excluded. (People v. Reliford (2003) 29 Cal.4th

8
1007, 1012.) After the enactment of section 1108, courts can no
longer exclude such evidence as prejudicial per se, but must
engage in a weighing process under section 352. (Reliford, at pp.
1012-1013.)
Nothing in section 1108 limits its effect to the
testimony of third parties. Instead, the statute allows the
admission of evidence of uncharged sexual offenses from any
witness subject to section 352. (See People v. Ennis (2010) 190
Cal.App.4th 721, 733 [upholding trial court’s ruling under section
352 that evidence of uncharged crimes from same witness who
testified to charged crimes is admissible].) Here the trial court
complied with the statute. CALCRIM No. 1191 is an appropriate
instruction.
Gonzales claims CALCRIM No. 1191 violates due
process because the inference permitted is irrational. The
inference to which Gonzales refers is that testimony by the victim
of uncharged sexual offenses corroborates the victim’s testimony
of the charged sexual offenses.
But there is nothing irrational about a victim
supporting her testimony with testimony of uncharged sexual
offenses. We agree, however, that such testimony is not as
probative as similar testimony from a third party. But it is still
probative. (See People v. Stanley, supra, 67 Cal.2d at p. 818
[court refused to adopt rigid rule excluding such evidence]; People
v. Ennis, supra, 190 Cal.App.4th at p. 733 [upholding trial court’s
determination such evidence was more probative than unduly
prejudicial].) CALCRIM No. 1191 does not violate due process.
Gonzales argues CALCRIM No. 1191 likely resulted
in the jury misapplying the burden of proof for the charged
offenses. The argument relies on that portion of CALCRIM No.

9
1191 that instructs the jury may consider the uncharged offenses
if the People have proved them by a preponderance of the
evidence.
But CALCRIM No. 1191 also instructs that the
uncharged offenses are only one factor to consider; that they are
not sufficient to prove by themselves that the defendant is guilty
of the charged offenses; and that the People must still prove the
charged offenses beyond a reasonable doubt. (See People v.
Reliford, supra, 29 Cal.4th at pp. 1011-1016 [rejecting a similar
challenge to CALJIC No. 2.50.01, an instruction based on section
1108].)
But if it were error to give CALCRIM No. 1191, the
error was harmless by any standard. L.W.’s testimony was
direct, unflinching and remarkably articulate. In addition, L.W.’s
testimony was corroborated by her mother and Ferchand. Her
mother testified L.W. slept with her bedroom door open. One
night when Gonzales was gone for a long time, L.W.’s mother
went to look for him. She found him in L.W.’s bedroom with the
door locked. After a delay, Gonzales unlocked the door.
Ferchand testified he confronted Gonzales for showering with the
children. Gonzales admitted he showered with the children, but
claimed he was wearing shorts. Finally the sexual assault exam
showed acute injury to L.W.’s hymen.
II
Gonzales contends the misleading language of
CALCRIM No. 1193 allowed the CSAAS testimony to be used as
proof that L.W. was molested.
The jury was instructed with CALCRIM No. 1193 as
follows:

10
 “You have heard testimony from Jody Ward, PhD
regarding child sexual abuse accommodation syndrome.
“Dr. Ward’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 [L.W.’s] conduct was not inconsistent with the
conduct of someone who has been molested, and in evaluating the
believability of her testimony.”
CSAAS expert testimony is not admissible to prove
the complaining witness has in fact been sexually abused.
(People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) It is admissible
to rehabilitate such witness’s credibility when the defendant
suggests that the child’s conduct after the incident is inconsistent
with her testimony claiming molestation. (Ibid.) Such testimony
is needed to disabuse jurors of commonly held misconceptions of
child sexual abuse and the abused child’s seemingly self-
impeaching behavior. (Id. at p. 1301.)
Gonzales argues 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 L.W.’s testimony.
Gonzales argues it is impossible to use the CSAAS testimony to
evaluate the believability of L.W.’s testimony without using it as
proof that Gonzales committed the charged crimes.
But the instruction must be understood in the context
of Ward’s testimony. Ward testified that CSAAS is not a tool to
help diagnose whether a child has actually been abused. She
said that if it is not known whether a child has been abused,
CSAAS is not helpful in determining whether a child has, in fact,

11
been abused. The purpose of CSAAS is to understand a child’s
reactions when they have been abused.
A reasonable juror would understand CALCRIM No.
1193 to mean that the jury can use Ward’s testimony to conclude
that L.W.’s behavior does not mean she lied when she said she
was abused. The jury also would understand it cannot use
Ward’s testimony to conclude L.W. 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 Ward’s testimony will find both that L.W.’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.
Gonzales argues CALCRIM No. 1193’s statement
that CSAAS testimony is not evidence he committed “the crimes
charged against him” does not preclude the use of CSAAS
testimony as proof he committed the uncharged offenses. The
uncharged offenses can lead to the conclusion that Gonzales is
inclined to commit sexual offenses. Gonzales believes the
instruction is not only wrong as a matter of law, but denies him
due process by lightening the prosecution’s burden of proof.
But the only use of evidence of the uncharged
offenses is as evidence Gonzales committed the charged offenses.
Thus, use of the CSAAS testimony as evidence Gonzales
committed the uncharged offenses would violate the instruction
that CSAAS testimony is not evidence he committed the charged
offenses. Moreover, Ward’s testimony made it clear CSAAS
evidence is not evidence Gonzales did anything charged or

12
uncharged. CALCRIM No. 1193 was proper and did not violate
due process.
In any event, for reasons previously stated, any error
in giving CALCRIM No 1193 is harmless.
III
Gonzales contends the trial court erred in imposing
fines pursuant to section 290.3 on the counts that had been
stayed. The People concede the error. Punitive fines cannot be
imposed on counts that are stayed pursuant to section 654.
(People v. Sharret (2011) 191 Cal.App.4th 859, 865.) We strike
the fines imposed on counts 2, 4 and 6.
The People also concede Gonzales’s contention that
the trial court erred in ordering him to pay for his public
defender. The court failed to conduct a hearing on Gonzales’s
ability to pay as required by section 987.8, subdivision (b). In
view of the length of sentence, and to avoid what amounts to an
unnecessary use of judicial resources, we do not remand.
DISPOSITION
The fines imposed on counts 2, 4 and 6 pursuant to
section 290.3 are stricken. The order requiring Gonzales to pay
attorney fees pursuant to section 987.8 is reversed under the
circumstances here. In all other respects, we affirm.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.

13
PERREN, J.
I concur in the result. I write separately to express my
disagreement with the conclusion that CALCRIM No. 1191 was
properly given in this case.
There are three categories of “other” sex offenses that may
be admitted as evidence of a defendant’s propensity to commit
charged sex offenses: (1) uncharged offenses committed against
persons other than the victim; (2) uncharged offenses committed
against the victim; and (3) other offenses that are charged in the
same case. (Evid. Code, §§ 1101, 1108.) For the first two
categories, the jury is generally instructed that the uncharged
offense or offenses may be considered only if they are proven by a
preponderance of the evidence. (CALCRIM No. 1191A; People v
Reliford (2003) 29 Cal.4th 1007, 1015-1016 [construing CALJIC
No. 2.50.01, which is substantially identical to former CALCRIM
No. 1191].) The same was true for the third category until 2012,
when our Supreme Court implicitly recognized that charged
offenses offered as propensity evidence must be proven beyond a
reasonable doubt. (People v. Villatoro (2012) 54 Cal.4th 1152,
1167-1168 (Villatoro); People v. Cruz (2016) 2 Cal.App.5th 1178,
1186 (Cruz); CALCRIM No. 1191B.) Why? Because it would be
anomalous to tell a jury that in proving one charged offense, it
may consider evidence of another charged offense shown by a
preponderance of the evidence, despite acquitting of that offense
because it was not persuaded of its commission beyond a
reasonable doubt. (Cruz, at p. 1186.)
The instant matter presents a similar anomaly. In the first
category, the jury may consider proof by a preponderance of the
evidence of other uncharged sex crimes perpetrated on a different
victim to “conclude from that evidence that the defendant was
disposed or inclined to commit sexual offenses, and based on that
decision, also conclude that the defendant was likely to commit
[sex offenses], as charged here.” (CALCRIM No. 1191A.)
Although the same may generally be true of the second
category— in which the jury considers evidence of other offenses
perpetrated against the named victim—a problem arises where,
as here, the proffered evidence consists solely of the victim’s own
testimony.
The very point of admitting propensity evidence under
Evidence Code section 1108 is “to assure that the trier of fact
[will] be made aware of the defendant’s other sex offenses in
evaluating the victim’s and the defendant’s credibility.” (People v.
Falsetta (1999) 21 Cal.4th 903, 911, italics added.) L.W.’s
credibility was the core of the proof establishing Gonzales’s guilt.
The jury was instructed, however, that it only had to be satisfied
by a preponderance of the evidence of L.W.’s veracity to prove the
commission of the uncharged offenses in order to prove the
charged offenses, even if not satisfied beyond a reasonable doubt
of the commission of the uncharged offenses. The jury was
specifically told it “may . . . conclude that the defendant was
likely to commit and did commit” the charged offense, although
such a conclusion was but “one factor to consider along with all
the other evidence.” (CALCRIM No. 1191A, italics added.)
I am mindful that “‘“[j]urors are presumed to be intelligent,
capable of understanding instructions and applying them to the
facts of the case.”’ [Citations.]” (People v. Carey (2007) 41
Cal.4th 109, 130.) But the instruction at issue here tested this
respected rule. The jurors were invited to consider L.W.’s
testimony as to the uncharged offenses—which only had to be
proven by a preponderance of the evidence—as corroboration of

2
her testimony as to the charged offenses, which had to be proven
beyond a reasonable doubt. In other words, the jury was told it
could assign a lesser degree of veracity to the victim’s testimony
regarding the uncharged offenses, and then consider whether
that evidence supports a finding of proof beyond a reasonable
doubt of her veracity as to the charged offenses.
This exercise in “mental gymnastics” is similar to the one
criticized in Cruz, supra, 2 Cal.App.5th 1178, in which the jury
was instructed on the admissibility of charged offenses as
evidence of the defendant’s propensity to commit other charged
offenses. In that case, the jury was instructed in accordance with
CALJIC No. 2.50.01 that the offenses only had to be proven by a
preponderance of the evidence to the extent they were offered to
prove propensity. In finding the instruction was erroneous, the
Court of Appeal reasoned: “It would be an exaggeration to say
the task required of the jury by the instruction given in this case
. . . was logically impossible. A robot or a computer program
could be imagined capable of finding charged offenses true by a
preponderance of the evidence, and then finding that this meant
the defendant had a propensity to commit such offenses, while
still saving for later a decision about whether, in light of all the
evidence, the same offenses have been proven beyond a
reasonable doubt. A very fastidious lawyer or judge might even
be able to do it. But it is not reasonable to expect it of lay jurors.
We believe that, for practical purposes, the instruction lowered
the standard of proof for the determination of guilt. In our view,
a jury instruction explaining the use of currently charged
offenses to show propensity under Evidence Code section 1108
must resemble the instruction used in Villatoro in specifying that
a currently charged offense must be proved beyond a reasonable

3
doubt before it can be used as propensity evidence in support of
another currently charged offense.” (Cruz, at p. 1186.)
In my view, a jury instruction explaining the admissibility
of uncharged offenses against the victim as proof of propensity
under Evidence Code section 1108 must resemble the instruction
used in Villatoro, supra, 54 Cal.4th 1152 (i.e., CALCRIM No.
1191B) where, as here, the proffered evidence of the uncharged
offenses consists solely of the victim’s testimony. L.W. is either
credible, or she is not. Inviting the jury to apply a lesser
standard of proof as to her credibility regarding uncharged
offenses, and then consider that evidence as proof of her
credibility beyond a reasonable doubt as to the charged offenses,
confuses the issue and threatens to undermine confidence in the
result.
I agree with the majority, however, that Gonzales was not
prejudiced by the giving of CALCRIM No. 1191. Although the
instruction was erroneous, it did not “lower[] the standard of
proof for the determination of guilt” as the instruction did in
Cruz. (Cruz, supra, 2 Cal.App.5th at p. 1186.) Here, the
instructions made clear that the charged offenses had to be
proven beyond a reasonable doubt. Moreover, the evidence
supporting the charged offenses was substantial. As the majority
observes, L.W.’s testimony bore hallmarks of credibility and was
corroborated by both her mother and Ferchand. Accordingly, the
error in giving the instruction was harmless. (People v. Falsetta,
supra, 21 Cal.4th at p. 925.)
CERTIFIED FOR PUBLICATION.

PERREN, J

4
 Matthew P. Guasco, Judge

Superior Court County of Ventura

______________________________

David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.