People v. Flores CA5

Filed 5/21/21 P. v. Flores CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078233
Plaintiff and Respondent,
(Super. Ct. No. F15907539)
v.

ROBERT ANTHONY FLORES, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Mark W.
Snauffer, Judge.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant Robert Anthony Flores was convicted by jury of committing a lewd act
upon a child (Pen. Code,1 § 288, subd. (a); count 1) and sexual battery by restraint

1 All further undesignated statutory references are to the Penal Code.
(§ 243.4, subd. (a); count 2) against his stepdaughter, D., and continuous sexual abuse
(§ 288.5; count 3) against his stepdaughter, J. As to counts 1 and 3, the jury found
appellant had engaged in substantial sexual conduct with a person under the age of 14
(§ 1203.066, subd. (a)(8)). In addition, as to counts 1 and 3, the jury found appellant had
committed the offenses against multiple victims.
Appellant was sentenced to a prison term of 15 years to life on count 1 (§ 667.61,
subd. (b)), a consecutive term of 15 years to life on count 3 (§ 667.61, subd. (b)), and the
middle term of three years on count 2, to be served concurrently.
On appeal, appellant contends the judgment in its entirety must be reversed
because expert testimony was admitted which exceeded the permissible scope of Child
Sexual Abuse Accommodation Syndrome (CSAAS) evidence and rendered his trial
fundamentally unfair. Appellant also contends his conviction in count 3 must be reversed
because section 288.5 violates his state constitutional right to a unanimous verdict and his
federal constitutional right to due process.
In addition, appellant raises several sentencing errors. He contends his life
sentences on counts 1 and 3 the court imposed pursuant to section 667.61 are
unauthorized because they violate ex post facto laws. He also contends the trial court
sentenced him to consecutive terms on counts 1 and 3 based on the mistaken belief doing
so was mandatory. Finally, he contends fines and fees must be stricken because the trial
court made a finding that he had the inability to pay them but imposed them anyway
under the law prior to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We
agree the matter must be remanded for resentencing because the life sentences violate ex
post facto laws and so the sentencing court may reconsider the imposition of consecutive
terms. On remand, appellant may raise his inability to pay argument. In all other
respects, the judgment is affirmed.

2.
 FACTS
In 2006, appellant married Tina, who had children from a previous relationship,
including J. and D. When appellant and Tina were married, J. was approximately five
years old and D. was approximately 10 years old. Appellant, Tina, J., and D. all lived
together in various homes.
J. was a junior in high school when she testified at trial. J. testified appellant first
sexually abused her when she was about five years old. On this first occasion, appellant
had called her into a detached room in the backyard across from the garage when no one
else was home. Appellant, who was drinking and listening to music, stopped what he
was doing, picked J. up, and laid her on the floor on her stomach. Appellant then pulled
J.’s pants and underwear down to her ankles. When J. tried to get up, appellant held her
shoulders down. Appellant started to rub J.’s butt with his hands on the outside of and in
between her butt cheeks. Appellant put his penis in between J’s butt cheeks but not
inside her. Appellant was lying on top of J. and moving “up and down.” A similar
incident happened a week or two later in appellant and Tina’s bedroom in the main
house.
J. testified incidents like this happened “a lot,” more than 20 times, when the
family was living at that house. A year or two later, when J. was in first grade, the family
moved to another house. They were at that house for about a year, and multiple similar
incidents occurred, about 10 times by J.’s approximation. The family moved again when
J. was in the fourth grade. At that home, additional incidents occurred. The incidents
started out the same way as the very first, but appellant began penetrating her anus with
his penis. About 20 more incidents of similar sexual abuse occurred at this house;
sometimes appellant would just put his penis in between J.’s butt cheeks, and other times,
he would penetrate her anus. On one occasion, while J. was in seventh grade, appellant
penetrated her vagina with his penis.

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 The incidents always occurred when Tina was out doing something and J. was
home alone with appellant. J. tried to avoid being alone with appellant by going to her
grandmother’s house, asking to go with Tina when she left the house, or hiding in her
bedroom and the bathroom. At one point, the incidents stopped. Appellant then stopped
drinking and began attending church regularly.
On cross-examination, J. testified she thought appellant was her biological father
until she was 13 years old. She had since started spending time with her father’s side of
the family. Defense counsel introduced family photographs of J. with appellant. Tina
and appellant had strict rules regarding J. seeing boys.
D. was 21 years old when she testified at trial. When D. was approximately 11 or
12 years old, appellant began making sexual comments to her that made her feel
uncomfortable, such as telling her that he liked her butt. On one occasion, around that
time, she walked past him and he grabbed her butt and squeezed it. Appellant often
exposed himself to D. around the house by pulling down the front of his pants.
D. testified appellant would often pull D.’s pants down and put her face down on
his and Tina’s bed, pull her underwear down to her knees, hold her down with his body
weight, and rub his penis on her butt. Appellant grunted a lot and moved up and down
while doing this. D. was not sure if appellant penetrated her anus. D. had a hot and
sticky substance on her afterward. This happened more than 20 times. D. testified
appellant did this whenever he got the chance when Tina was not home. D. did not tell
Tina or J. about what happened. At one point, D. did tell her brother’s girlfriend, who
told Tina. D. left home after she graduated high school because of the sexual abuse.
The final incident that caused D. to move out of the home occurred in appellant’s
office. Appellant had been drinking and he pulled his pants down and rubbed his penis
on D. D. tried to get away but he was too heavy and he placed his penis on her butt.
On cross-examination, D. testified the household was strict and she and J. were
never allowed to go anywhere; they just went to school and did their chores and

4.
homework at home. D. testified she had a boyfriend in high school that she did not tell
Tina or appellant about. They found out about him because she was caught with him in a
bathroom across the street from the school. To punish D. for this incident, Tina hit D.
and grounded her for “a long time.” The defense introduced father’s day and birthday
cards that D. made for appellant. D. wrote messages of appreciation and love to appellant
in the cards. D. testified she once loved appellant because he was a good person and nice
when he was sober, but she no longer loved him.
In December 2015, J.’s choir teacher observed J. presenting as “very shut down”
and exhibiting troubling behavior. The teacher called J. into her office to speak with her
because it appeared her anxiety was growing and the physical signs of her shutting down
seemed to increase. The teacher asked J. if she was being physically, mentally, sexually,
or emotionally abused at home. J. responded by saying, “Well, not now.” The teacher
asked J. if she meant she had been sexually abused, and J. then told the teacher she had
been sexually abused from the age of five to the age of 12 but that she had never told
anyone. The teacher asked if it was someone she lived with, and J. responded that it was
her stepfather.
J. testified the teacher was the first person to whom she disclosed the abuse. She
never told Tina because she assumed Tina would take appellant’s side. She never
planned on talking about it but felt comfortable with the teacher, and the teacher’s
questioning just brought it out of her. J. said she appeared upset the day the teacher
called her into the office because D. had just moved out a couple of weeks prior and she
really missed her.
After school that day, J. went to the home of her maternal grandparents, Curtis and
Patricia. Later that afternoon, officers from the Fresno Police Department and a child
protective services (CPS) worker came to the house to discuss the allegations.

5.
 J. told one of the officers who initially arrived that appellant had had sexual
intercourse with her about once a week from the time she was five years old until she was
12 years old.
Detective Jennifer Federico responded to the residence and had Patricia call Tina
and have her come to the house. When Tina arrived, Federico told her J. had accused
appellant of sexually abusing her. Tina did not believe it and said that J. and appellant
were never alone together and that J. was lying.
While Federico was speaking with Tina, D., J., and Curtis were in a room in the
back of the house together. Curtis asked D. what she thought about the allegations, and
D. responded that she believed J. because appellant had done the same thing to her.
Curtis then went to get Federico’s partner’s attention and told him D. was also making an
allegation against appellant. Federico’s partner, Detective Michael Martin, went back to
speak with D., who was crying and told him appellant did the same thing to her. When
Martin asked for clarification, D. responded that appellant had put his penis in her butt.
Based on there being two victims, Federico and Martin decided to take the girls and
appellant to the station for interviews. Federico transported the girls to the station and
asked them not to talk to each other about the case. Someone was always with them to
make sure they did not communicate about the case.
Audio recordings of J.’s and D.’s police interviews were introduced at trial by the
defense. In J.’s interview, she said the first incident where appellant rubbed his penis on
J.’s butt happened in the bedroom and that appellant had asked J. if she wanted to play a
game on his phone before touching her. This happened about 10 times, and when J. was
nine or 10 years old, appellant began inserting his penis into J.’s anus. This happened
approximately two to three times per week, and maybe 20 times total. Once or twice,
appellant placed his penis inside J’s vagina.

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 D. told the police that the first incident occurred when she was 13 or 14 years old
and she had never told anyone about it. She also stated her family thought that Tina’s
previous boyfriend before appellant had molested D.
A video recording of appellant’s interview was played for the jury. Appellant
initially denied the allegations that he sexually abused J. Eventually, after Federico told
appellant that D. had made similar allegations, appellant responded, “So I don’t know
then. Maybe I did when I was drunk. I don’t know. I – I don’t know. Why didn’t they
say something then instead of today? Or yesterday or next week, like….” Appellant
went on to say, “if I did do something like that, God forgive me.” Appellant explained he
was a “bad alcoholic” and would forget how he spent his money after drinking the day
before. He admitted he would drink upon waking up in the morning and would also
drink at work at times. Martin asked appellant, “But deep down inside of you, what do
you … think? It’s not like this possibly could happen?” Appellant responded, “It
probably could have, I don’t know. That’s why I’m trying to be real, brother.” He stated
he did not remember doing anything. Following the interview, Federico arrested
appellant.
Defense Evidence
Tina testified on behalf of appellant and stated the girls were not telling the truth.
She stated J. was upset with her and appellant for not telling her that appellant was not
her biological father, and that D. is a “conniver,” liar,” and “exaggerator.” CPS had
prevented Tina from seeing J. because Tina does not believe J. Tina believed D.’s
motivation to lie was to support J. D.’s brother’s girlfriend never told Tina that D. was
being abused by appellant. Tina testified she knows appellant did not do it and has no
doubts.
A church friend of D.’s testified that she and D. were very close. D. confided in
her and they spoke almost every day. D.’s friend was very surprised to hear about the

7.
allegations against appellant. D. never told the friend, and it was surprising she would
not tell her something. D.’s friend testified D. does not tell the truth all the time.
Appellant’s employer testified he had known appellant since 2005 and appellant
was gentle, reliable, honest, an impeccable employee, and a good person. At the time of
trial, appellant still worked for the employer. On cross-examination, the employer
testified he would be surprised to know that appellant admitted to being under the
influence of alcohol at work.
Appellant’s daughter testified that appellant was always nice, even when he was
drunk and he never abused her.
J. and D.’s grandfather Curtis testified the afternoon the police arrived at his
house, J. never said anything about them coming, and when they arrived, J. buried her
head into Curtis’s arm. When D. arrived at his house, she went up to J. and asked, “What
teacher did you tell this to? Did you tell it to one of my teachers?” When Curtis was in
the back room with them, they were mumbling back and forth. When Tina was talking
with the detectives, the girls were outside together. Curtis was surprised “[r]ight down to
the ground” to hear of the allegations. Curtis stated the girls never had anything bad to
say about appellant and called him “Dad.” According to Curtis, appellant was a good
father who never raised his voice. Curtis said he did not believe the girls, and that it
seemed like “every word that comes out of [D.’s] mouth is a lie.”
J. and D.’s grandmother Patricia testified that she was “excited” to be in court
because she knew appellant was innocent. Patricia was certain the girls were not telling
the truth because she “know[s]” them. According to Patricia, appellant was a good parent
and a “god-loving” man who had “never, ever … done anything wrong.” When appellant
was drunk, his demeanor was “loving.” Patricia said that the day the police came to her
house, J. was laughing when speaking to the officers.
In closing argument, defense counsel argued that J.’s “overly-vigilant” choir
teacher prompted J. to make the allegations against appellant, and D. lied to back up J.’s

8.
allegations after speaking with her at the grandparents’ house in order to help her get out
of the strict household. He pointed out the inconsistencies between D.’s testimony and
her statements to the police. Defense counsel argued that J. made up the allegations
because she was spending more time with her biological dad and his family who had
fewer rules. Counsel argued that J. could not have experienced what she said she
experienced because she made unbelievable statements such as not knowing whether
appellant’s penis was erect, stating his ejaculate was cold, and she did not say it hurt
when asked how penetration of her anus felt. Counsel went on to say J. may have been
truthful but substituted appellant for another perpetrator. Finally, he pointed out
inconsistencies between J.’s testimony and her statements to the police.
DISCUSSION
I. CSAAS Expert David’s Love Testimony
A. Relevant Procedural Background
The prosecution moved in limine to introduce CSAAS testimony to explain why J.
and D. might have failed to report the abuse earlier than they did. Appellant moved in
limine to preclude CSAAS testimony unless the prosecution identified the myth or
misconception the evidence was proffered to rebut. The court reserved ruling on the
CSAAS motions until J. and D. testified to more accurately determine whether the
evidence could be properly introduced and what the scope would entail.
Following J.’s and D.’s testimony, an Evidence Code section 402 hearing was held
during which defense counsel conducted a voir dire examination of Love. Prior to
Love’s testimony at the hearing, the prosecutor gave an offer of proof that Love would
testify as to CSAAS and misconceptions that common people may have about child
victims reporting sexual abuse. The prosecutor explained the majority of Love’s
testimony would be discussing the delayed reporting and the reasons why through
discussion of the elements of CSAAS. Following Love’s testimony, the court stated
Love would be permitted to testify but limited Love’s testimony to CSAAS and delayed

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reporting. The court noted Love was not permitted to testify about statements he made
during the hearing about “grooming” or his statement that only one percent of alleged
child sexual abuse victims lie.
B. Love’s Testimony
Before Love testified before the jury, the trial court instructed the jury that Love’s
testimony on CSAAS was not evidence that appellant committed any of the crimes
charged and that the jury was only to consider the evidence in deciding whether or not
J.’s or D.’s conduct was not inconsistent with the conduct of someone who has been
molested and in evaluating the believability of their testimony. (CALCRIM No. 1193.)
Love is a licensed marriage and family therapist with over 40 years of experience
working with child sexual abuse victims. He has also taught and conducted research in
the field of child sexual abuse. Love testified he knew no facts or details related to the
case and had not spoken with any witnesses or appellant.
Love testified that CSAAS was “a description of a clinical study” conducted to
look at the “typical reactions of children who had been sexually molested.” The study
looked at child sexual molestation victims who were in treatment. The study was
undertaken because those children “acted” and “responded” “in certain ways” that led
others, such as their parents and investigators, not to believe them because the behaviors
were “somewhat different or unique or sometimes, unless you really understood sexual
molest, didn’t make sense.” Examples of this behavior were delaying disclosure of
sexual abuse, secrecy surrounding the issues because the children were embarrassed,
intimidated, or threatened, and inconsistent disclosures due to trauma.
A group of clinicians met, Love being one of them, in 1979 to discuss the need for
consolidation of the information to help them explain sexual molestation to those outside
the field. Dr. Roland Summit, who at the time was head physician at UCLA Harbor
View Medical Center, compiled data provided by the clinicians and wrote an article
entitled, “The Child Sexual Abuse Accommodation Syndrome,” wherein he summarized

10.
the information and data to “better explain it to others who were working with children so
that the children got assistance or got believed in times in which they were truly
molested.” The article was intended to educate those who were not therapists to
understand the children and “if indeed children had been molested, they wouldn’t
disregard what they were saying because it didn’t kind of make, quote, common sense,
but, in fact, it was pretty consistent with most other sexually molested kids.” There are
five basic categories to the CSAAS: secrecy; helplessness; entrapment and
accommodation; delayed, unconvincing disclosure; and retraction.
Love testified that secrecy “is what makes child sexual abuse function and work.”
A perpetrator generally selects a child who is vulnerable or interacts with the child in
such a way that intimidates them so that they do not tell anyone about the abuse. Some
sort of “coercion or manipulation need[s] to take place” so the child does not disclose.
When asked by the prosecutor to expound upon whether a power imbalance affects the
child’s ability or inclination to disclose, Love further testified that “[m]ost people” have a
preexisting relationship with their abuser, such as an uncle, aunt, mother’s boyfriend, or
priest. The child’s idea that adults are more likely to believe adults puts the child into a
helpless position.
As to “helplessness,” Love testified the majority of abuse happens in a setting such
as home, boy scout camp, or at school “which should be safe.” Love explained “[o]ne of
the most common reactions” is that sexually abused children are “functioning in a
manner where they are not confident” and thus feel helpless. The children do not feel
comfortable coming forward right away, and “Summit said very clearly please do not
disregard what a child says when they finally come forward because they were placed in
a very helpless, vulnerable position by this older, more domineering, more powerful,
more important person in their life, creating a situation that makes sense when you
understand the dynamics of the child sexual abuse; why they were not able to come
forward, why they were helpless, why they didn’t tell right away, why they didn’t explain

11.
this to others.” An abused child, “particularly a highly traumatized” one, would not see
running away as an option.
As to “entrapment” and “accommodation,” Love testified that “Summit was trying
to explain why kids stay in the situation.” Love explained children who have been
molested do not feel they have been taken advantage of but that they have done
something wrong, so they are “basically trapped” and need to “learn to live with it
somehow or another,” which are characterizations of the accommodation category. Love
stated many of the children studied in the CSAAS article had posttraumatic stress
disorder. Summit “looked at what are some of the typical coping mechanisms, and those
mechanisms sadly led to the point that people started using them to discount what
children were saying.” Adolescents may increase drug and alcohol use or engage in self-
harm. Younger children refuse to go places where they are being molested. Or the child
may freeze rather than fight and are nice to the offender, say “okay things about” them,
and go places with them because the child’s “fear level is so high.”
As to delayed or inconsistent disclosures, Love testified of the children observed
for the CSAAS article, “very few came forward within the first few months or often in
the first year or so.” Love stated though that can be construed to mean the abuse did not
happen, the research showed the children were delaying disclosure because they had
accommodated to the abuse. Love explained, “[W]e [the clinicians involved in providing
data for Summit’s article] wanted to say delaying is not at all something that people
should use to disregard what a child has said; and, in fact, most sexually molested kids
delay for some period of time. Over half never tell.” Love testified for a child to come
forward “[s]omething has to happen” in his or her life such as reaching a point of safety
or not having the offender around anymore.
Love testified victims of sexual assault can sometimes give conflicting accounts at
different times of what happened. Love explained there are two types of memory: core
memory and peripheral memory. Core memory covers the sexual acts and peripheral

12.
memory covers details like what the offender said and what his clothing looked like.
Love testified that core memory “encodes really well” and on recall “has a tendency to be
more consistent and accurate.” Peripheral memory, on the other hand, “has a tendency to
be vague, out of [sequence].” Love went on to say children get interviewed again and
again after a report is made and “we find over those multiple interviews, by the nature of
memory, there will be some changes.” They sometimes remember something they had
not disclosed previously. Love then stated: “So the [CSAAS] article was trying to say
because they don’t remember all the pieces, some of the information isn’t consistent
across all interviews, they can’t always remember everything, take a look at the core
[memory] and do you feel like that part is logical within the rest of the information and is
supportive of the accusation [the] child is saying.”
Love testified that retraction takes place in a limited number of cases. That is,
after a child victim has already disclosed abuse occurred, they later say it did not happen.
Love said, “the question that the Summit article wanted to say was be careful and look to
make sure that someone hasn’t gotten to them, someone hasn’t intimidated them, that you
… aren’t asking questions in a highly stressful environment, like in court, where the child
is so stressed that they are really flustered and therefore the best out is to say ‘I don’t
know. I don’t remember. I’m not sure it happened.’ ” Love explained sometimes it is
painful or uncomfortable or the stress level is high and stress can cause problems with
recall.
The court instructed the jury with CALCRIM No. 1193 on the proper use of
Love’s testimony a second time before closing argument.
C. Analysis
Appellant makes several claims of error with regard to the admission of various
aspects of Love’s testimony. Though appellant’s counsel moved in limine to exclude
Love’s testimony and requested a section 402 hearing to determine what the scope of
Love’s testimony would entail, there were some portions of Love’s testimony which

13.
appellant challenges and to which trial counsel did not specifically object. Respondent
contends the failure to specifically object to the challenged portions of Love’s testimony
forfeited appellant’s claims. To the extent we find any of appellant’s claims have been
forfeited, appellant contends his counsel rendered ineffective assistance by failing to
object below. Without deciding whether appellant forfeited any of his claims, we review
them on their merits because such is relevant to his ineffective assistance of counsel
claim.
We will not disturb a trial court’s decision to admit expert testimony on appeal
unless a manifest abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d
1289, 1299 (McAlpin).)
Expert testimony on CSAAS, or “the common reactions of child molestation
victims” is admissible “ ‘to disabuse jurors of commonly held misconceptions about child
sexual abuse, and to explain the emotional antecedents of abused children’s seemingly
self-impeaching behavior.’ ” (McAlpin, supra, 53 Cal.3d at pp. 1300‒1301.) It is
inadmissible, however, to prove the abuse occurred. (Id. at p. 1300.)
Courts have recognized that CSAAS evidence is at risk of being “misapplied as a
predictive index by the jury.” (People v. Bowker (1988) 203 Cal.App.3d 385, 393
(Bowker).) Thus, the evidence must be tailored to the purpose for which it is being
received; it must be “targeted to a specific ‘myth’ or ‘misconception’ suggested by the
evidence” though the prosecution does not have to identify the specific misconception to
be addressed. It is sufficient if the victim’s credibility is placed in issue due to
paradoxical behavior, such as delay in reporting a molestation or in inconsistent
statements. (Bowker, at pp. 393‒394; see, e.g., People v. Patino (1994) 26 Cal.App.4th
1737, 1744‒1745.) Further, a limiting instruction that CSAAS evidence is not intended
and should not be used to determine whether the victim’s molestation claim is true can
help reduce the risk that a jury misuses CSAAS evidence. (Bowker, at p. 394.) There is a
split among the Courts of Appeal as to whether a trial court is required to give a limiting

14.
instruction sua sponte. (People v. Housely (1992) 6 Cal.App.4th 947, 958‒959 [court is
required to give limiting instruction]; People v. Mateo (2016) 243 Cal.App.4th 1063,
1073‒1074 [the court need only give the instruction if requested]; but see People v.
Humphrey (1996) 13 Cal.4th 1073 [where the Supreme Court repeatedly referred to the
trial court’s duty to give a limiting instruction on the use of battered women’s syndrome
evidence on request].)
1. Alleged Violation of Guidelines Set Forth in Bowker
Appellant first contends Love exceeded the permissible scope of CSAAS evidence
as described in Bowker, supra, 203 Cal.App.3d 385 by improperly (1) eliciting sympathy
for child victims and advocating that they should be believed and (2) tracking the facts of
appellant’s case.
In Bowker, the appellate court found the prosecutor had led the CSAAS expert “on
a testimonial excursion which far exceeded the permissible limits” of the evidence.
(Bowker, supra, 203 Cal.App.3d at p. 394.) Of the expert’s transgressions were making
comments “designed to elicit sympathy for child abuse victims and solicitations that
children should be believed.” The expert in that case “in effect said regardless how
inconsistent a child’s accounts of abuse are, abused children give inconsistent accounts
and are credible nonetheless.” (Ibid.) Further, the Bowker expert testified to facts which
“directly coincided” with facts in the case. (Ibid.) Finally, the expert “constructed a
‘scientific’ framework into which the jury could pigeonhole the facts of the case,”
allowing the jury to “superimpose these children on the same theory and conclude abuse
had occurred.” (Id. at p. 395.)
Citing Bowker, appellant first argues that Love improperly elicited sympathy for
child abuse victims and that they should be believed regardless of how inconsistent a
child’s account is.

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 We set forth the portions of Love’s testimony that appellant contends runs afoul of
this limit in italics placed within the context in which it arose as it is relevant to our
analysis:

• While testifying on the category of helplessness, Love testified:
“The article was explaining the common reactions of sexually
molested children. One of the most common reactions is that
they’re functioning in a manner where they are not confident. They
feel helpless. They don’t feel comfortable coming forward. They
don’t explain to others. And so therefore, because they don’t come
forward right away, because they can’t tell or don’t tell, Summit
said very clearly please do not disregard what a child says when
they finally come forward because they were placed in a very
helpless, vulnerable position by this older, more domineering, more
powerful, more important person in their life, creating a situation
that makes sense when you understand the dynamics of the child
sexual abuse; why they were not able to come forward, why they
were helpless, why they didn’t tell right away, why they didn’t
explain this to others.”

• While testifying on the category of delayed disclosure, Love
testified: “[Of the children studied for the CSAAS article], very
few came forward within the first few months or often in the first
year or so and told anybody, which could be construed as, well,
maybe it didn’t happen because they didn’t tell anybody. In the
body of information collected from this, large number of children
said, no, they’re delaying because they’ve accommodated. They’re
in fear. They’re afraid. So we [the clinicians who provided the data
for the CSAAS article] wanted to say delaying is not at all
something that people should use to disregard what a child has
said; and, in fact, most sexually molested kids delay for some
period of time.”

• While continuing to discuss the delayed disclosure category, Love
testified: “So the [CSAAS] article was trying to say because [child
victims] don’t remember all the pieces, some of the information
isn’t consistent across all interviews, they can’t always remember
everything, take a look at the core [memory] and do you feel like
that part is logical within the rest of the information and is
supportive of the accusation [the] child is saying.”

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 • On the retraction category, Love testified: “So [the CSAAS article]
was a word of caution that if they retract some things, don’t throw
out everything because a piece of it may not be there any longer.”
Appellant acknowledges that a CSAAS expert is permitted to explain that “generally
speaking, delays, inconsistencies, and retractions are not uncommon,” but argues by
making the above comments, Love, “t[ook] the additional step of telling a jury that
‘children should be believed’ and ‘regardless how inconsistent a child’s accounts of
abuse are, abused children give inconsistent accounts and are credible nonetheless,’ ”
citing Bowker, supra, 203 Cal.App.3d at page 394. We disagree that Love’s testimony
improperly elicited sympathy for child victims or in effect said the witnesses should be
believed.
We start by noting the comments Love made in this case are distinguishable from
the expert’s comments the appellate court condemned in Bowker. In Bowker, the expert
volunteered, for example, “ ‘It is very important that a young child, say, any age from
four to ten, 12 years old, that they be believed.’ ” (Bowker, supra, 203 Cal.App.3d at
p. 389.) The Bowker expert’s testimony accounted for nearly 70 pages of reporter’s
transcript and was “replete with comments designed to elicit sympathy for child abuse
victims and solicitations that children should be believed.” (Id. at p. 394.)
Here, Love never so directly states that, as a rule, children who make accusations
of molestation should be believed no matter what, and we do not believe the comments
appellant challenges had the improper effect of saying children “should be believed.”
Rather, each of Love’s comments pointed out by appellant was made in the context of
explaining a particular behavior and was meant to reiterate what Love explained was the
original intent of the CSAAS article at the beginning of his testimony—to look at typical
reactions of children who have been sexually molested to ensure those who hear
accusations do not disregard what the children say “because it didn’t kind of make, quote,
common sense.” When Love stated a behavior should not be used to disregard a child’s
statement in the present case, it was because that behavior had historically been used to

17.
disregard children’s allegations prior to the CSAAS article being published. In context,
Love’s comments were not advocations that the children be believed but rather an
explanation that they should not not be believed on the basis they displayed a certain
behavior. The function of the comments in context was to neutralize the seemingly self-
impeaching behavior rather than advocate for blind belief in children’s statements. These
comments had substantively the same effect as saying the behavior is not inconsistent
with children who have been molested—a permissible use for CSAAS evidence. On the
facts of this case, we find the trial court did not abuse its discretion by allowing the above
statements.
We agree with appellant to some extent that, on this record, Love approaches, but
does not cross, the line of improper CSAAS testimony. In our view, it is best practice for
CSAAS experts to simply explain the reasons behind children’s seemingly self-
impeaching behaviors and state the behaviors are not uncommon. Love’s additional
commentary relating that the purpose of CSAAS is to encourage fact finders to not
“disregard” children’s accusations is unnecessary and if these types of comments had
been accompanied by more direct statements that children should be believed more akin
to the statements in Bowker, our conclusion may have been different. Here, however,
these types of comments were not pervasive and did not have the cumulative effect of
telling the jury the witnesses should be believed simply because they came forward for
the reasons we have already stated. To the extent any of Love’s comments could be
construed as improper advocacy for believing the witnesses, the limiting instruction
would have prevented the jury from using the testimony for an improper purpose.2

2 To the extent appellant argues the limiting instruction allowed the jury to use the
CSAAS evidence to determine appellant is guilty because it stated the jury could consider
the evidence “in evaluating the believability of [the complaining witnesses’] testimony,”
we reject this argument. A similar argument has been rejected by the appellate court in
People v. Gonzales (2017) 16 Cal.App.5th 494, which we find persuasive. The Gonzales
court held that a “reasonable juror would understand CALCRIM No. 1193 to mean that
the jury can use [the CSAAS] testimony to conclude that [the victim’s] behavior does not

18.
 Appellant also cites Bowker to argue Love presented his testimony in a way which
“directly coincided” with the facts of appellant’s case and improperly “constructed a
‘scientific’ framework into which the jury could pigeonhole the facts of the case” as the
expert in Bowker did, by testifying that (1) victims wait years to disclose abuse and give
various inconsistent versions of what happened; (2) abuse is commonly caused by a
person the victim knows; (3) some victims say nice things about their abuser; and
(4) children do not generally report until they reach a point of safety or until something
significant happens in their lives. Appellant says this testimony improperly coincided
with the evidence that (1) the girls waited years to disclose the abuse and gave
inconsistent accounts between their testimony and statements to the police; (2) appellant
was their stepfather; (3) D. wrote nice things in birthday and father’s day cards to
appellant; and (4) J. told her choir teacher of the abuse after something “significant”
happened—D. moving out.
We do not agree with appellant that the facts to which he refers improperly
implicated appellant’s guilt or improperly created a framework into which the jury could
pigeonhole facts. The fact that J. and D. exhibited some of the behaviors discussed by
Love does not render the testimony inadmissible. To be admissible, CSAAS evidence
must be “targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence.”
(Bowker, supra, 203 Cal.App.3d at pp. 393–394.) Consequently, in every case in which
CSAAS evidence is properly admitted, the prosecutor’s questions and expert’s testimony
will necessarily mirror the facts of the case to some extent.

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.”
(Gonzales, at p. 504.) As Gonzales explained, “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.” (Gonzales, at p. 504.)

19.
 Here, Love never suggested to the jury they should use CSAAS to determine
whether abuse occurred. We conclude this portion of Love’s testimony remained within
the limitations of “observations concerning the behavior of abused children as a class and
[] avoid[ed] testimony which recites either the facts of the case at trial or obviously
similar facts” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384) and there was no
abuse of discretion. Love explicitly acknowledged he had neither met the witnesses nor
reviewed any of the reports in this case. Again, the jurors were instructed they could only
use Love’s testimony to understand seemingly counterintuitive behavior when evaluating
the witnesses’ believability.
We conclude Love’s testimony did not impermissibly exceed any scope outlined
by Bowker.
2. Alleged Improper Profile Evidence
Appellant further contends Love testified to improper criminal profiling evidence
by testifying that the majority of abuse is committed by someone with a significant or
familial relationship with the victim and the victim can be nice to the abuser. We
disagree.
“A profile is a collection of conduct and characteristics commonly displayed by
those who commit a certain crime,” and is “ ‘a listing of characteristics that in the opinion
of law enforcement officers are typical of a person engaged in a specific illegal
activity.’ ” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) “Profile evidence is
generally inadmissible to prove guilt.” (Ibid.) The appellate court in Robbie explained
there is a significant difference between profile evidence, which is improper, and
evidence “admitted in recognition that a misleading notion existed in the public
consciousness and to disabuse jurors of the misconception,” which is admissible. (Id. at
p. 1087.)
Here, the facts to which appellant refers were not presented to the jury as “profile
evidence.” Rather, the testimony that many victims have a preexisting relationship with

20.
their abusers was presented as an explanation for why a child victim may keep the abuse
a secret or feel helpless. The function of this testimony was to counteract the
misconception that children would report abuse right away. Love’s comment that victims
can be nice to the abuser was presented as an example of how a victim might
“accommodate” the abuse. The function of this testimony was to counteract the
misconception that a victim would never be nice to someone who had abused them. We
conclude Love did not construct a profile of offenders that the jury could use to
determine guilt.
3. Alleged Improper Statistical Evidence
Appellant next argues that Love testified as to improper statistical evidence. We
disagree.
Juries “must evaluate” the evidence “without statistical evidence placing a thumb
on the scale for guilt.” (People v. Wilson (2019) 33 Cal.App.5th 559, 571 (Wilson).)
“Where expert opinions on the statistical probability of guilt are admitted, the jury may
be ‘distracted’ from its ‘requisite function of weighing the evidence on the issue of guilt,’
and may rely instead on this ‘irrelevant’ evidence.” (People v. Julian (2019)
34 Cal.App.5th 878, 886 (Julian), quoting People v. Collins (1968) 68 Cal.2d 319, 327.)
Appellant argues the cumulative effect of Love’s testimony that (1) “one out of
four women and one out of six men will be molested or raped by the time they’re 18 in
the … State of California”; (2) “[m]ost” victims have a preexisting relationship with the
abuser, such as an uncle, aunt, mom’s boyfriend, or priest; (3) the “majority” of abuse
happens in a setting such as home, boy scout camp, or at school; and (4) “[o]ver half”
never report abuse “suggested that there was a high statistical probability that appellant
was guilty” and was thus improper. To support his contention, appellant cites Wilson,
supra, 33 Cal.App.5th 559 and Julian, supra, 34 Cal.App.5th 878. Both cases are
distinguishable.

21.
 In Wilson, after the CSAAS expert testified about CSAAS, the prosecutor said
they wanted to “ ‘step outside of the accommodation syndrome’ ” and talk about “ ‘false
allegations.’ ” (Wilson, supra, 33 Cal.App.5th at p. 568.) The expert testified that false
allegations occur “ ‘very infrequently or rarely,’ ” most often during a child custody
dispute and that a study found “ ‘about 4% of cases in which there was an allegation that
was determined to be false.’ ” (Ibid.) The Wilson court found the practical result of this
evidence “was to suggest to the jury that there was an overwhelming likelihood [the
victims’] testimony was truthful.” (Id. at p. 570.) The appellate court concluded the
evidence was not relevant and more prejudicial than probative and therefore inadmissible,
but that the admission was harmless because the victims testified extensively, other
percipient witnesses were called, and the defense offered effective rebuttal expert
testimony. (Id. at pp. 571‒572.)
In Julian, the same CSAAS expert who testified in Wilson testified that false
allegations were infrequent and there were studies purporting to show that only one to
eight percent of these types of allegations were false. (Julian, supra, 34 Cal.App.5th at
p. 884.) The appellate court held the statistical evidence was not admissible as CSAAS
evidence and deprived the defendant of his right to a fair trial. (Id. at p. 886.)
Unlike in Wilson and Julian, Love made no such statements regarding the
probability that a report is false or true. We agree with appellant in part that Love’s
comment that one out of four women will be molested by the time they are 18 was
inappropriate. The comment was volunteered by Love while discussing the element of
secrecy. One of the next sentences Love said was, “So we’ve got a large number of
people this happens to in our culture, much higher than we’d like to believe. But we
certainly understand now very few of those people tell.” In context, Love was not
implicating that J. and D. had been molested but that child molestation is widespread and
many do not disclose the abuse, which underlined Love’s point that the unique
circumstances of child sexual abuse can cause secrecy and delayed disclosure. We

22.
conclude that while this comment did not rise to the level of improper statistical evidence
akin to that in Wilson and Julian, it was irrelevant and should not have been admitted.
We also conclude however the comment’s admission was harmless. We presume the jury
would follow the CALCRIM No. 1193 instruction that it must not use Love’s testimony
for the improper purpose of concluding the victims were molested. Further, the comment
was brief and offhanded, and was not highlighted again by Love or the prosecutor during
Love’s testimony or argument.
The remainder of the “statistical” testimony identified by appellant was relevant in
that each comment was an identification of a common reason why child abuse victims
would not immediately report sexual abuse. We do not find, as appellant suggests, that
the cumulative effect of these comments were that J. and D. were molested. Rather, they
were used to explain why children who have been abused display certain behaviors and
that those behaviors were not uncommon among child sexual abuse victims.
4. Section 352
Appellant argues any probative value of Love’s testimony was outweighed by
undue prejudice, and therefore the trial court abused its discretion under Evidence Code
section 352 by admitting it.3 We disagree.
Appellant first suggests there was no probative value of the evidence: that it was
“totally unnecessary” to the prosecution’s case because jurors “were likely already
aware” “that sometimes abused children delay in reporting or make inconsistent
statements” and thus the prosecution could have “easily” addressed the points in closing
argument and by the jury instruction on witness credibility, which instructs the jury not to
automatically reject testimony just because of inconsistencies or conflicts. The Court of
Appeal in People v. Munch (2020) 52 Cal.App.5th 464 has recently rejected the argument

3 “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.)

23.
that CSAAS evidence is no longer relevant because “ ‘the public no longer holds the
presumed misconceptions this testimony purports to address.’ ” (Id. at p. 468.) There,
the court held that it was bound by the high court’s holding in McAlpin, supra, 53 Cal.3d
1289 that CSAAS evidence is admissible to rehabilitate a child sexual abuse victim’s
credibility and “ ‘ “is needed to disabuse jurors of commonly held misconceptions about
child sexual abuse, and to explain the emotional antecedents of abused children’s
seemingly self-impeaching behavior.” ’ ” (People v. Munch, at p. 468; see Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We agree with the appellate
court in Munch and conclude the evidence was probative under McAlpin based on the
state of the evidence.
Appellant argues, on the other hand, the undue prejudice was high for the same
reasons he argues the evidence exceeded the permissible scope of CSAAS evidence. We
disagree the trial court abused its discretion by allowing the evidence. Evidence is not
“prejudicial” merely because it may be harmful to a criminal defendant’s case. (People v.
Megown (2018) 28 Cal.App.5th 157, 164.) Evidence only creates “undue prejudice” if
the evidence tends to evoke an emotional bias by the jurors against the defendant, and the
evidence has little effect on the issues relevant in the particular case. (Ibid.) For the
same reasons we have already discussed to conclude the testimony was within the limits
of permissible CSAAS evidence, we conclude there was no undue prejudice resulting
from the admission of Love’s testimony. We find no abuse of discretion.
5. Alleged Due Process Violation
Finally, appellant contends the admission of Love’s testimony rendered
appellant’s trial fundamentally unfair so as to violate federal due process rights for the
same reasons why he contends they exceeded the permissible scope of CSAAS
testimony. We disagree.
A court’s compliance with the rules of evidence ordinarily do not infringe on a
defendant’s right to a fair trial. (People v. Hall (1986) 41 Cal.3d 826, 834‒835.) Here,

24.
appellant’s due process claim is based on the premise that the admission of the CSAAS
evidence violated state evidentiary law. Because we have found no evidentiary errors
regarding the admission of the CSAAS expert testimony (with the exception of one of
Love’s comments, which we have discussed ante), we are not persuaded by appellant’s
argument. This court has rejected a claim that properly admitted CSAAS evidence
violates due process: “The United States Supreme Court has held the admission of
relevant evidence of the battered child syndrome does not violate the due process clause
of the Fourteenth Amendment. (Estelle v. McGuire (1991) 502 U.S. 62, 69‒70.)
Battered child syndrome evidence is analogous to CSAAS evidence. (People v. Bowker,
supra, 203 Cal.App.3d at pp. 393‒394.) For this reason, there can be little doubt the due
process dimensions of both types of evidence is similar if not identical. Therefore,
introduction of CSAAS testimony does not by itself deny appellant due process.”
(People v. Patino, supra, 26 Cal.App.4th at p. 1747.) We agree with this court’s decision
in Patino and find no due process violation.
6. Alleged Ineffective Assistance of Counsel Claim
Because Love’s testimony was properly admitted, we reject appellant’s argument
that his counsel was ineffective in failing to object to it. (See People v. Anderson (2001)
25 Cal.4th 543, 587 [“Counsel is not required to proffer futile objections.”]; People v.
Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by
failing to make motions or objections that counsel reasonably determines would be
futile.”].)
II. Constitutionality of Section 288.5
Appellant contends section 288.5 violates his state constitutional right to a
unanimous verdict and his federal constitutional rights to due process and a jury trial. We
disagree.
Section 288.5, subdivision (a) defines the offense of “continuous sexual abuse of a
child” as when “[a]ny person who either resides in the same home with the minor child or

25.
has recurring access to the child, who over a period of time, not less than three months in
duration, engages in three or more acts of substantial sexual conduct[4] with a child under
the age of 14 years at the time of the commission of the offense, … or three or more acts
of lewd or lascivious conduct,[5] … with a child under the age of 14 years at the time of
the commission of the offense.” The statute specifies that a jury “need unanimously
agree only that the requisite number of acts occurred not on which acts constitute the
requisite number.” (§ 288.5, subd. (b).) The prosecution is expressly prohibited by the
statute from charging any other act of substantial sexual conduct or lewd and lascivious
acts involving the same victim unless the acts occurred outside the time period specified
in the section 288.5 charge or unless it is charged in the alternative. (§ 288.5, subd. (c).)
The prosecution is also limited to charging a defendant with only one section 288.5
charge per victim. (§ 288.5, subd. (c).)
“The starting point of our analysis is ‘the strong presumption that legislative
enactments “must be upheld unless their unconstitutionality clearly, positively, and
unmistakably appears.” ’ ” (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) We review
the constitutionality of statutes de novo. (People v. Abbate (2020) 58 Cal.App.5th 100,
109.)
Appellant first argues that section 288.5 violates the state constitution’s guarantee
of a right to a unanimous verdict by allowing for conviction without the juror’s
unanimous agreement on which specific acts constitute the offense. Appellant
acknowledges several appellate courts have rejected the same argument. (People v.

4 “Substantial sexual conduct” is defined in section 1203.066, subdivision (b), as
penetration of the vagina or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of either the victim or the
offender.
5 Section 288 describes lewd and lascivious acts as when one willfully and lewdly
commits any lewd or lascivious act, upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that person or the child.

26.
Higgins (1992) 9 Cal.App.4th 294, 299, 305‒308; People v. Avina (1993) 14 Cal.App.4th
1303, 1308‒1314 (Avina); People v. Gear (1993) 19 Cal.App.4th 86, 89‒94; People v.
Whitham (1995) 38 Cal.App.4th 1282, 1295‒1298 (Whitham); People v. Adames (1997)
54 Cal.App.4th 198, 206‒208; People v. Cissna (2010) 182 Cal.App.4th 1105, 1123‒
1126.) These courts have held that because section 288.5 is a “course-of-conduct”
offense, it falls into an unanimity requirement exception because the actus reus of the
offense is a series of acts rather than a specific act.
Appellant argues that these cases were wrongly decided and should not be
followed because they are incorrect in categorizing section 288.5 as a course-of-conduct
offense. Appellant distinguishes section 288.5 from the course-of-conduct offenses of
child abuse (§ 273a), spousal battery (§ 273.5), animal cruelty (§ 597), accessory after the
fact (§ 32), and dissuading a witness (§ 136.1). He argues those course-of-conduct
crimes may be comprised of individual acts that are not themselves criminal, and none of
those offenses requires a specific number of defined qualifying acts be committed over a
specific time period, unlike section 288.5. On the other hand, according to appellant,
section 288.5 is a composite crime consisting of three or more individual crimes
committed over a minimum period of time, which is completed the instant the time
period has run and the third qualifying crime has been committed. We disagree with
appellant’s assessment.
The question of whether an offense is a course-of-conduct offense focuses on
whether the Legislature intended to make it one. (Avina, supra, 14 Cal.App.4th at
p. 1310.) In the case of section 288.5, the Legislature “[o]bviously … intended to create
a course-of-conduct offense” because subdivision (b) expressly states that it is to be
treated as a continuous course-of-conduct crime for purposes of the unanimity rule.
(Avina, at p. 1310; accord, Whitham, supra, 38 Cal.App.4th at p. 1296 [“The text of
section 288.5 leaves no doubt the Legislature intended to create a course-of-conduct
offense [citations]; it is undeniably ‘ “the continuing course of abuse which leads to

27.
prosecution and conviction.” ’ ”]; People v. Higgins, supra, 9 Cal.App.4th at p. 304
[“The Legislature has the prerogative to proscribe a course of conduct, rather than
specific acts, a prerogative exercised by adoption of [] section 288.5.”].)
We agree with the courts who have rejected arguments similar to appellant’s and
find Avina particularly persuasive. In rejecting the defendant’s argument that
section 288.5 is a “composite” crime, the Avina court held that section 288.5’s
requirement the defendant commit three or more acts of sexual abuse against the child,
any one of which would be criminal in itself, was not dispositive because “[s]everal
statutes held to define course-of-conduct crimes may also be violated by a single act;
these include child abuse (§ 273a), spousal battery (§ 273.5), and dissuasion of a witness
(§ 136.1). That section 288.5 can, in theory, be violated by committing only three
individual acts does not remove it from the course-of-conduct category.” (Avina, supra,
14 Cal.App.4th at p. 1310.)
The Avina court thoroughly explained the course-of-conduct characteristics of the
offense. First, the Avina court explained that “section 288.5 defines the offense more
narrowly than as a series of three molestations.” (Avina, supra, 14 Cal.App.4th at
p. 1310.) The statute also requires “residence with or recurring access to the child victim,
as well as sexual abuse over a period of three months or more.” (Id. at p. 1310‒1311.)
The Avina court reasoned that “[t]he three-act requirement merely sets a ‘baseline’ for
measuring the course of conduct, while ‘the continuous-access requirement makes clear
that the statute was targeted at the resident child abuse situation, where problems with
generic testimony are most likely to arise, and was not to be used against individuals who
have only transient contact with the alleged victim.’ ” (Id. at p. 1311.)
The Avina court went on to liken residential sexual abuse with other course-of-
conduct crimes. Even though each act contemplated in section 288.5 may be criminal,
the Avina court explained, “the harm done to the victim is cumulative and may be
exacerbated not only by frequent repetition, but by the very circumstances of residential

28.
intimacy that make the course of conduct possible.” (Avina, supra, 14 Cal.App.4th at
p. 1311.)
Finally, the Avina court pointed out that section 288.5 has another characteristic of
a course-of-conduct crime that is of “substantial benefit to a defendant”—that the
prosecution may only charge one count per victim. (Avina, supra, 14 Cal.App.4th at
p. 1311.) We find Avina well-reasoned and persuasive on the point that contrary to
appellant’s argument, section 288.5 is a course-of-conduct offense and unanimity as to
the specific acts that make up the offense is not required.
Appellant also contends section 288.5 violates his federal constitutional rights to
due process and a jury trial because these rights require the prosecution to prove every
element of the offense to the jury beyond a reasonable doubt. We disagree. “ ‘Courts
presume a statute is constitutional. [Citation.] … To show a violation of due process, a
defendant must show that the statute, as applied, offended a principle of justice so rooted
in the traditions and consciousness of the country that it is considered fundamental.’ ”
(People v. Robertson (2012) 208 Cal.App.4th 965, 995.)
Here, “it is the number of acts of molestation which is the essential element of the
crime,” not the acts themselves. (Whitham, supra, 38 Cal.App.4th at p. 1297.) Appellant
has cited no authority which stands for the proposition that, when more than one act can
make up the element of an offense, a jury must unanimously agree on the act that
constitutes that element. (See People v. Leffel (1988) 203 Cal.App.3d 575, 586
[suggesting there is no such requirement].) Under section 288.5, the jury is required to
find beyond a reasonable doubt that a defendant committed three or more qualifying acts,
which is all that is constitutionally required because the number of acts over a prolonged
period of time is the actus reus, not the acts themselves. Appellant has not shown his due
process right to a verdict beyond a reasonable doubt has been violated.

29.
III. Sentencing Errors
A. Unauthorized Indeterminate Sentences Pursuant to Section 667.61
Appellant contends the indeterminate sentences imposed based on multiple victim
allegations under section 667.61 were unauthorized. Respondent concedes the sentences
violated ex post facto laws. We accept respondent’s concession.
Section 667.61 provides that when certain enumerated offenses are perpetrated
against multiple victims, those offenses shall be punishable by prison terms of 15 years to
life. (§ 667.61, subds. (b), (c) & (e)(4).) Both section 288, subdivision (a) and
section 288.5 are listed. (§ 661.61, subd. (c)(8) & (9).) Section 288.5, however, was not
added to the list until September 20, 2006. (Stats. 2006, ch. 337, § 33, eff. Sept. 20,
2006.) In the present case, count 3 was alleged to have occurred between March 27,
2006, and March 26, 2013.
Both the federal and state constitutions prohibit ex post facto laws. (U.S. Const.,
art. I, § 10; Cal. Const., art. I, § 9; Collins v. Youngblood (1990) 497 U.S. 37, 41; Tapia v.
Superior Court (1991) 53 Cal.3d 282, 288.) We interpret the state ex post facto clause no
differently than its federal counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.)
“The standard for determining whether a law violates the ex post facto clause has
two components, ‘a law must be retrospective—that is, “it must apply to events occurring
before its enactment”—and it “must disadvantage the offender affected by it” … by
altering the definition of criminal conduct or increasing the punishment for the
crime….’ ” (People v. Delgado (2006) 140 Cal.App.4th 1157, 1164.)
The maximum penalty that may be imposed on appellant depends upon whether he
committed the offense before or after the effective date of section 667.61. Therefore, to
invoke the sentencing provisions of section 667.61, the prosecutor had to prove to the
jury that appellant committed those offenses on or after the statute’s effective date. (See
People v. Hiscox (2006) 136 Cal.App.4th 253, 260.)

30.
 Because the jury was not required to make a unanimous finding that appellant
committed the offense after September 20, 2006, and because the jury could have found
he committed the section 288.5 offense prior to the September 20, 2006, effective date of
section 667.61, the law may have applied to events occurring before its enactment.
Appellant’s 15-year-to-life terms imposed on counts 1 and 3 must be vacated and
the matter remanded for resentencing under the law in effect prior to September 20, 2006.
B. Error Imposing Consecutive Sentences
Appellant contends the trial court imposed consecutive sentences under the
mistaken impression it was required to under section 667.6, subdivision (d), which did
not apply in appellant’s case. Respondent concedes the trial court erroneously thought
consecutive terms were mandated for counts 1 and 3 and that remand is appropriate. We
accept respondent’s concession.
Section 667.6 provides that a full, separate, and consecutive term shall be imposed
for each violation of enumerated offenses if the crimes involve separate victims or
involve the same victim on separate occasions. The statute “ ‘applies only when a
defendant stands convicted of more than one offense specified.’ ” (People v. Maharaj
(2012) 204 Cal.App.4th 641, 649, italics omitted.)
Here, the only offense appellant was convicted, which is enumerated in the list, is
section 288.5. (§ 667.6, subd. (e).) However, the trial court indicated it was required to
impose consecutive sentences under section 667.6, subdivision (d), expressed it did not
“like the idea of a life sentence in this case,” and expressly stated that the mandatory
consecutive sentences was what the court believed was “the problem [with sentencing] in
this case.”
Because section 667.6, subdivision (d) did not apply, and the trial court imposed
full, consecutive sentences because it believed the subdivision did apply, the matter must
be remanded for resentencing for the trial court to properly exercise its discretion as to
whether to impose consecutive or concurrent sentences on counts 1 and 3.

31.
 C. Dueñas Claim
At appellant’s sentencing, the court imposed the minimum restitution fine of $300
(§ 1202.4). The court found appellant did not have the ability to pay the probation report
fee of $296, but stated it was required to impose a courtroom security fee of $40 for each
conviction for a total of $120 (§ 1465.8) and a $30 criminal conviction assessment for
each conviction for a total of $90 (Gov. Code, § 70373).
Since appellant’s sentencing, the Second Appellate District decided Dueñas,
supra, 30 Cal.App.5th 1157. In Dueñas, the appellate court held the imposition of the
nonpunitive court security fee (§ 1465.8, subd. (a)(1)) and criminal conviction assessment
(Gov. Code, § 70373, subd. (a)(1)) without a determination of the defendant’s ability to
pay them violated due process. (Dueñas, at p. 1164.) The Dueñas court also held that if
the defendant has demonstrated an inability to pay the restitution fine, which is intended
to be punitive (§ 1202.4, subd. (b)(1)), the trial court must stay execution of the fine until
the People prove the defendant has gained the ability to pay. (Dueñas, at p. 1164.)6
Relying on Dueñas, appellant asserts his rights to due process and to be free from
excessive fines were violated by the court imposing the $120 court security fee, the $90
criminal conviction assessment, and the $300 restitution fine despite its finding appellant
had the inability to pay them. Respondent takes the position that since the matter is being
remanded, appellant should raise his ability-to-pay claim below. We agree with
respondent.
Upon remand, appellant “will bear the burden of both demonstrating a harm of
constitutional magnitude and making a record regarding his alleged inability to pay the
restitution fine and court assessments.” (People v. Montes (2021) 59 Cal.App.5th 1107,
1121; see People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“[A] defendant must in

6 The California Supreme Court is now considering (1) whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and (2) if so, which party bears the applicable burden of proof. (See People
v. Kopp (2019) 38 Cal.App.5th 47, 94‒98, rev. granted Nov. 13, 2019, S257844.)

32.
the first instance contest in the trial court his or her ability to pay the fines, fees and
assessments to be imposed and at a hearing present evidence of his or her inability to pay
the amounts contemplated by the trial court.”].) “[W]e express no view as to whether
defendant may be able to state a viable claim that ultimately withstands constitutional
scrutiny on review.” (People v. Montes, at p. 1121.)
DISPOSITION
Appellant’s sentences imposed on counts 1 and 3 are vacated and the matter is
remanded for resentencing. Upon remand, the court shall apply the law in effect prior to
the amendment of section 667.61 on September 20, 2006, and properly exercise its
discretion as to whether to impose consecutive or concurrent sentences. If appellant
chooses, he may request an ability-to-pay hearing where he will bear the burden of
showing a harm of constitutional magnitude and to make a record regarding his alleged
inability to pay.
In all other respects, the judgment is affirmed.

DE SANTOS, J.
WE CONCUR:

DETJEN, Acting P.J.

PEÑA, J.

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