People v. Diaz CA4/3

Filed 12/13/21 P. v. Diaz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060214

v. (Super. Ct. No. 18CR011640)

JOSE ALEJANDRO DIAZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Monterey County, Pamela
Butler, Judge. Affirmed in part, reversed in part, and remanded with directions.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D.
Share and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.
 Appellant Jose Alejandro Diaz was convicted of continuous child sex
abuse and attempting to dissuade a witness. On appeal, he contends: 1) The trial
court erroneously excluded evidence regarding the victim’s prior allegations of sexual
abuse; 2) the jury instruction on child sexual abuse accommodation syndrome
(CSAAS) was flawed; 3) the prosecutor committed misconduct in closing argument;
and 4) the trial court erred in imposing certain fines and fees without determining
whether he had the ability to actually pay them. We agree with the last contention.
Therefore, we reverse the subject fines and fees and remand for an ability-to-pay
hearing. In all other respects, we affirm the judgment.
FACTS
Jane Doe was born in 2001. When she was seven years old, her mother met
and married appellant, and they had a baby together a few years later. The following
year, when Jane was 10, appellant began to molest her on a regular basis.
At that time, the family was living in Salinas. One day while Jane was
cleaning up around the house, appellant had her lie down on his bed and proceeded to
touch her breasts under her shirt. The incident made Jane feel very uncomfortable, but
appellant told her not to tell anyone about it, so she kept it to herself. Following that
initial episode, appellant molested Jane two to three times a week. Most of the time he
touched only her breasts or butt, but sometimes he also put his hand inside her pants and
touched her vagina.
The molestation continued after the family moved into an RV in Salinas
when Jane was 11 years old. Once, appellant groped Jane’s breasts while pretending to
apply vapor rub to her chest, and another time, he pressed his erect penis against her from
behind. There also was an incident where appellant touched Jane’s breasts and vagina
while she was trying to sleep inside the RV.
Jane testified to other incidents where appellant molested her in his car and
at her grandma’s house when she was 12 and 13 years old. Although Jane was able to

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describe a number of the incidents in detail, she could not recall all of them because there
were so many.
At one point, appellant’s adult sister Marisela moved in with Jane and her
family. Marisela was a survivor of child sex abuse herself. One day she asked Jane what
was going on between her and appellant. After Jane told her about appellant had been
molesting her, they drove to the police station. But once they got there, Jane lost her
nerve, so they went home.
There, Marisela confronted appellant about Jane’s allegations, resulting in a
heated argument that ended with appellant kicking Marisela out of the house. After she
left, appellant first got mad at Jane for telling Marisela about him then choked up and
became teary-eyed and told Jane he would lose his immigration papers and her little
brother would grow up without a father if she ever reported him to the authorities. So, in
an effort to keep the family intact, Jane did not tell anyone else about the abuse, which
paved the way for further mistreatment.
When Jane was in the eighth grade, she and her family moved to Texas.
Almost every day before school, appellant would come into her bedroom and touch her in
a sexual manner. The last time this occurred Jane was 16 years old. On that occasion,
appellant touched her breasts early one morning while she was lying in bed facing the
1
wall, and then he masturbated right beside her.
The culmination of these events led Jane to tell her mother, and then the
police, about appellant’s actions in 2018, when she was 17 years old. By that time, Jane
and everyone else in her family had returned to Salinas, except appellant, who stayed
behind in Texas. As part of their investigation, the police had Jane make a “pretext” call
to appellant to see if he would make any incriminating statements. At the beginning of
the call, appellant denied any wrongdoing, but he eventually told Jane he was sorry and

1
Appellant was not charged with any acts that occurred in Texas. However, those acts were
admitted into evidence to prove he had a propensity to commit the acts that occurred in California.

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would never touch or hurt her again. He also admitted he didn’t know how to be a good
father and was paying the price for being “an idiot.”
Following appellant’s arrest, he spoke with investigators about Jane’s
allegations. As in the pretext call, he denied any wrongdoing at first, but he then went on
to admit that he did touch Jane inappropriately two times, once on her breasts and once
near her groin. Appellant insisted those touchings were inadvertent and innocent, yet he
did admit he found Jane attractive.
While he was in jail, appellant pressured Jane and her mother to drop the
charges against him. He also enlisted the aid of others in this campaign, but it ultimately
proved unsuccessful.
At trial, the defense attempted to undermine Jane’s credibility by
highlighting various inconsistencies between her trial testimony and what she told the
police. Those inconsistencies related to the particular manner in which appellant sexually
abused her and whether other members of her family were in the vicinity when the abuse
occurred. The defense also brought out the fact Jane did not tell the police she revealed
the abuse to Marisela before she told her mother about it.
On cross-examination, Jane also admitted appellant was very controlling
and once got extremely upset when he discovered photos of nude men on her phone.
However, Jane denied her allegations against appellant had anything to do with his strict
disciplinary style. She said the photos were unsolicited, and she blocked the person who
had sent them to her Facebook page.
The sole witness for the defense was Marisela. She testified that after Jane
told her about how appellant had been molesting her, she confronted appellant in front
Jane and her family. However, appellant acted like he didn’t know what she was talking
about, and the situation became very heated. According to Marisela, the confrontation
ended when Jane started laughing and said she was lying about appellant abusing her.
However, by that time, appellant was so upset he still kicked Marisela out of the house.

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Marisela ultimately came to believe Jane made up the allegations against appellant
because she disliked him and wanted to live with Marisela and her family.
During the trial, the prosecution called Dr. Anthony Urquiza to shed light
on the phenomenon of child sexual abuse. Although Dr. Urquiza is an expert on CSAAS
and described its various components to the jury, he did not mention that syndrome by
name during his testimony. Instead, he framed his testimony as pertaining to the
counterintuitive behavior children sometimes exhibit when they are being abused, and the
common misconceptions about how child sex abuse victims are expected to act.
For example, Dr. Urquiza testified that, contrary to what many adults
believe, delayed reporting of child sex abuse is common, especially if the victim has been
abused by a person they trust or look up to. And when the victim does come forward,
their reporting is not always clear and specific. While they may be able to recall the core
acts involved, they will often have trouble remembering the peripheral details
surrounding the abuse. In addition, they may retract their allegations if they have
negative consequences for their family or the abuser. In fact, Dr. Urquiza said retraction
occurs in about a quarter of the cases where a child has been sexually abused.
However, during his testimony Dr. Urquiza made it clear he knew nothing
about this case, and it was not his job to determine whether a particular child has actually
been abused. He also emphasized each situation is different, and not all children react the
same way when they are sexually abused.
In the end, the jury convicted appellant of continuous child sexual abuse
and two counts of attempting to dissuade a witness. (Pen. Code, § 288.5, subd. (a),
136.1, subd. (b)(2).) The trial court sentenced him to an aggregate term of 16 years in
prison for his crimes.

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 DISCUSSION
Evidence of Jane’s Prior Allegations of Sexual Abuse
Appellant contends the trial court abused its discretion and violated his
confrontation rights by not allowing him to question Jane about allegations of sexual
abuse she had made against other men before the instant case arose. We disagree.
Before trial, appellant moved pursuant to Evidence Code section 782 to
admit evidence that Jane had accused two other men of molesting her when she was
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about seven years old. The first man was her uncle Armando (her mother’s brother), and
the second man was her former stepfather Luis. As a result of Jane’s allegations, both
men were charged with child sexual abuse.
In support of the motion, defense counsel provided a sworn declaration
containing an offer of proof as to the nature and relevance of the proposed evidence. The
declaration averred that not long after Jane made the allegations against Armando and
Luis, she recanted them, saying the alleged misconduct of both men could have been a
dream. Consequently, the charges against Armando were dropped. However, by the
time Jane recanted, Luis had already confessed and pleaded guilty to two counts of
forcible lewd conduct with a child, for which he was sentenced to 16 years in prison.
Defense counsel further alleged that Jane was recently interviewed about
the allegations she had made against Armando. During the interview, Jane stood by her
allegations and said the only reason she retracted them is because Armando’s family
pressured her to do so. Nevertheless, defense counsel took the position that, one way or
the other, the Armando incident demonstrated that Jane had made a false statement about
being sexually abused in the past: Either she lied when she initially accused Armando of
molesting her, or her subsequent retraction was untrue. As such, the evidence related to
the credibility of her allegations against appellant in the current case.

2
Unless noted otherwise, all further statutory references are to the Evidence Code.

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 In his opposition to motion, the prosecutor argued Jane’s retraction of the
allegations against Armando was suspect due to the pressure Armando’s family had put
on her. The prosecutor also pointed out Armando has never been found factually
innocent of the allegations, and Luis was still in prison for what he did to Jane. All things
considered, the prosecutor felt the evidence of Jane’s prior allegations should be excluded
because they had slight evidentiary value and would take up nearly as much time at trial
as the allegations in this case.
The trial court agreed. At the hearing on appellant’s motion, the court
stated that if it allowed evidence of Jane’s prior allegations, each side would have to
litigate the truth of those allegations and the circumstances of Jane’s retractions, thus
creating “a mini-trial within a trial.” The court believed this would be unduly time
consuming and distract the jury from its primary task, which was to decide the truth of
the charges against appellant, not the truth of Jane’s allegations against other men.
Therefore, it denied appellant’s request to introduce the allegations into evidence without
the need to hear further evidence on the issue. In so doing, the court described the prior
allegations as “the poster child” for the type of protracted and confusing evidence that
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section 352 was designed to guard against.
Generally, evidence of a complaining witness’s prior sexual conduct is
inadmissible in a sex crimes case. (§ 1103, subd. (c)(1).) “Such evidence may be
admissible, though, when offered to attack the credibility of the complaining witness,
provided that its probative value outweighs the danger of undue prejudice and the
defendant otherwise complies with the procedures set forth in . . . section 782. First, the
defendant must file a written motion and an offer of proof detailing the relevancy of the
evidence. (Id., § 782, subds. (a) (1), (2).) If the court finds the offer sufficient, it shall

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Section 352 provides, “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.”

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order a hearing out of the presence of the jury to allow questioning of the complaining
witness regarding the offer of proof. (Id., § 782, subd. (a)(3).) If the court finds the
evidence [admissible], the court may make an order stating what evidence may be
introduced by the defendant and what questions are permitted. (Id., § 782, subd. (a)(4).)”
(People v. Fontana (2010) 49 Cal.4th 351, 354.)
In this case, the trial court determined appellant’s offer of proof was
insufficient to warrant an evidentiary hearing. Appellant contends this was error, but as
part of their gatekeeping duties under section 782, trial judges are required to assess
whether the proffered evidence regarding the victim’s prior sexual activity is relevant
and, if so, whether its probative value is outweighed by other considerations set forth in
section 352. “Only if the judge determines both questions in favor of admissibility is the
offer of proof ‘sufficient’” to warrant an evidentiary hearing. (People v. Blackburn
(1976) 56 Cal.App.3d 685, 691-692.)
We review the trial judge’s ruling for an abuse of discretion. (People v.
Bautista (2008) 163 Cal.App.4th 762, 781–782.) Thus, reversal is not required unless the
judge exercised his or her discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d
308, 316.)
No such abuse occurred in this case. The evidence regarding Jane’s prior
allegations against Armando and Luis was offered by the defense to attack her credibility
and show her allegations against appellant were untrue. However, Luis pleaded guilty to
sexually abusing Jane and is currently serving a long prison term for doing so. And
although the charges against Armando were dropped after Jane recanted her allegations
against him, she said she was pressured to recant by Armando’s family, and he has never
been found factually innocent of the allegations.
Appellant contends it doesn’t matter whether the allegations were true
because even if they were, then Jane’s retraction was a lie that the jury should have been

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allowed to consider in evaluating her credibility. But, as Dr. Urquiza explained, it is not
uncommon for children who have been sexually abused to retract their allegations,
especially if, as here, they lead to family turmoil. Considering all of the circumstances
surrounding Jane’s prior allegations of sexual abuse, we do not believe they were
particularly probative in terms of impeaching her credibility in this case.
Moreover, it would have taken a considerable amount of time to litigate the
veracity of Jane’s prior allegations during appellant’s trial. “[A] prior false accusation of
sexual molestation is . . . relevant on the issue of the molest victim’s credibility.” (People
v. Franklin (1994) 25 Cal.App.4th 328, 335.) But proving Jane’s allegations against Luis
were false would have been a Herculean task considering he has already admitted they
were true. And proving Jane’s allegations against Armando were false would have been
difficult as well considering the family dynamics at play and the fact that Jane continues
to maintain Armando molested her. Given the limited probative value of the proffered
evidence, as well as its likelihood of bogging down the trial and confusing and
misleading the jury, we cannot say the trial court abused its discretion in excluding the
evidence without conducting an evidentiary hearing.
Alternatively, appellant contends his attorney was ineffective for failing to
challenge the trial court’s ruling on the basis it violated his constitutional right to confront
the witnesses against him. (See U.S. Const., 6th Amend.) However, trial judges have
broad discretion to limit cross-examination based on concerns about undue delay, jury
confusion and harassment of a witness. (Delaware v. Van Arsdall (1986) 475 U.S. 673,
679-680.) To prove his attorney was ineffective for failing to object on confrontation
grounds below, appellant would have to show it is reasonably probable the jury would
have received a significantly different impression of Jane’s credibility had his attorney
been allowed to cross-examine her about her prior allegations against Luis and Armando.
(Ibid.; Strickland v. Washington (1984) 466 U.S. 668.)

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 In attempting to carry this burden, appellant argues the evidence of Jane’s
prior allegations of sexual abuse was “critical” in terms of evaluating the credibility of
her testimony, and the jurors were given no other reason to believe Jane was lying about
what appellant allegedly did to her. However, as explained above, when viewed in
context, Jane’s prior allegations against other men were not that probative of her
credibility in this case. And the record shows that, notwithstanding the exclusion of the
prior allegations, the defense had plenty to work with insofar as impeaching Jane’s
credibility.
For starters, the defense presented testimony from Marisela that Jane
retracted her allegations against appellant when Marisela confronted him with those
allegations in front of Jane. In addition, defense counsel cross-examined Jane extensively
about various inconsistent statements she made to investigators before trial. And, defense
counsel also made hay out the fact that Jane was unable to recall many of the details
surrounding the sexual abuse to which appellant allegedly subjected her.
Given all these circumstances, it is not reasonably probable the trial court’s
decision to exclude the evidence of Jane’s prior allegations of sexual abuse against other
men materially affected her credibility in the eyes of the jury. Accordingly, defense
counsel was not ineffective for failing to challenge that decision on the basis it violated
appellant’s right to confront Jane at trial.
CSAAS Instruction
Appellant’s next argument pertains to Dr. Urquiza’s testimony regarding
the myths and misconceptions about how children react to being sexually abused.
Although appellant does not contest the admissibility of that testimony, he contends the
jury was improperly instructed on how to use it. We cannot agree.
Per CALCRIM No. 1193, the jurors were instructed, “You have heard
testimony from Dr. Anthony Urquiza regarding counterintuitive victim behavior. Dr.
Urquiza’s testimony about counterintuitive victim behavior is not evidence [appellant]

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committed any of the crimes charged against him. [¶] You may consider this evidence
only in deciding whether or not Jane Doe’s conduct was not inconsistent with the conduct
of someone who has been molested and in evaluating the believability of her testimony.”
Appellant acknowledges the instruction expressly prohibited the jury from
using Dr. Urquiza’s testimony as proof he committed the charged offenses. However, he
contends that prohibition was essentially meaningless because the instruction also
allowed the jury to consider such testimony in assessing Jane’s credibility. Indeed,
appellant claims that by allowing the jury to consider Dr. Urquiza’s testimony for this
purpose, CALCRIM No. 1193 lessened the prosecution’s burden of proof because the
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jurors likely used that testimony to support the truth of the sexual abuse charge.
This claim runs counter to the well-established rule that jurors are
presumed to understand and follow the instructions they are given. (People v. Yeoman
(2003) 31 Cal.4th 93, 139 [describing this rule as “‘[t]he crucial assumption underlying
our constitutional system of trial by jury’”].) Appellant’s argument also overlooks the
primary reason CSAAS evidence is admissible in criminal trials. As explained in People
v. Gonzales (2017) 16 Cal.App.5th 494, “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 [the expert’s] testimony to conclude
that [the child’s] behavior does not mean she lied when she said she was abused. The
jury also would understand it cannot use [the expert’s] testimony to conclude [the child]
was, in fact, molested. The CSAAS evidence simply neutralizes the victim’s apparently
self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who believes [the
expert’s] testimony will find both that [the child’s] apparently self-impeaching behavior
does not affect her believability one way or the other, and that the CSAAS evidence does

4
Although appellant did not object to the court giving CALCRIM No. 1193, we will consider his
challenge to it because the instruction arguably infringed his substantial rights. (Pen. Code, § 1259.)

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not show she had been molested. There is no conflict in the instruction.” (Id. at p. 504;
accord, People v. Munch (2020) 52 Cal.App.5th 464, 474.)
We agree. Appellant attempts to distinguish Gonzales on the basis the
expert in that case testified CSAAS is not a tool for determining whether or not a
particular child has actually been abused. But that is essentially what Dr. Urquiza told
the jury in this case. He said each case and child is different, and there is no way to tell if
a particular child has been sexually abused. In other words, there is no “one size fits all”
method of detecting child sex abuse.
The prosecutor also acknowledged as much in his closing argument. He
told the jury, “The fact [Jane’s] conduct parallels with what you heard from Dr. Urquiza
doesn’t prove she’s a victim or [appellant is] guilty.” In light of everything the jurors
were told, it is not reasonably likely they interpreted CALCRIM No. 1193 as a green
light to use Dr. Urquiza’s testimony as substantive evidence of appellant’s guilt. We
therefore reject appellant’s claim the instruction violated due process and infringed his
right to a fair and impartial trial.
Closing Argument
Appellant also contends the prosecutor committed misconduct in closing
argument by imploring the jury to use common sense in assessing the evidence and
deciding the truth of the charges. We cannot agree.
At the outset of his closing argument, the prosecutor told the jurors “this
case is a great example of why it’s important just for you to use your common sense. Just
take your life experiences, your common life experiences to look at this whole situation,
all the evidence. Apply the same standard to everyone, and just use your common sense.
You do that, and this becomes an easy case, partly because of the evidence that you were
given. [¶] I want to go to some of the bullet points, . . . where when you use your
common sense it’s plainly obvious what has happened.”

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 The prosecutor then proceeded to discuss some of the particular evidence
he believed was indicative of appellant’s guilt. Then he talked about the elements of the
charged offenses. In discussing the sex abuse charge, he said, “I’m not required to
produce a second witness to say I also saw [appellant] touch [Jane] or I pulled his DNA
from her private part. . . . And common sense can tell you why.” And in discussing the
witness intimidation count, the prosecutor urged the jury to use its common sense in
determining whether the malice element had been proven.
The prosecutor returned to this theme later in his argument by telling the
jurors that if they used their common sense, looked at the whole picture, and judged
everything by the same standard, it was a simple case. He also repeatedly acknowledged
he had the burden to prove the truth of the charges beyond a reasonable doubt. In so
doing, the prosecutor said he was not required to eliminate all possible doubt, just
reasonable doubt. And in terms of understanding the difference between those two
standards, it was important for the jurors to use their common sense.
Appellant admits there was nothing improper about these statements under
California law. He also concedes his attorney failed to contest any of the remarks he
targets on appeal. In fact, rather than objecting to those remarks, defense counsel told the
jurors he agreed “with what [the prosecutor] said as far as . . . not leav[ing] your common
sense at the door. Do not leave your common sense at the door.”
Nevertheless, appellant urges us to find the prosecutor’s remarks improper
based on two out-of-state decisions, State v. Mitchell (Ks. 2000) 7 P.3d 1135 and State v.
Hunter (Mo. Ct. App. 1984) 676 S.W.2d 34. However, those cases are neither legally
binding nor factually apposite. Whereas the prosecutors there explicitly equated the
reasonable doubt standard with common sense, the prosecutor here simply encouraged
the jury to use its common sense in evaluating the evidence and determining whether the
charges were proven beyond a reasonable doubt. His remarks did not distort the burden
of proof or constitute misconduct in any respect. Indeed, because a juror’s background

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and experience necessarily inform his decisionmaking, telling a juror to use common
sense in approaching an issue “is little more than telling the juror to do what the juror
cannot help but do.” (People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)
Fines and Fees
At sentencing, the trial court ordered appellant to pay a $1,000
restitution fine, a $1,310 sex offender fine, a $90 court facilities fee, and a $120 court
operations fee. (See Pen. Code, §§ 1202.4, 290.3, 1465.8; Gov. Code, § 70373.)
Although appellant did not object to these monetary penalties when they were
imposed, he filed a letter motion in the trial court while this appeal was pending
asking the court to stay or reverse them. Relying on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), appellant argued the penalties violate due process
because he is indigent and disabled, and the court never made a finding he has the
ability to pay them. Appellant sought a hearing on his ability to pay, but the court
declined the request and refused to disturb the subject penalties.
Appellant contends this constitutes an abuse of discretion, and we agree.
Per its terms, Penal Code section 1202.4 requires the trial court to consider the
defendant’s ability to pay when, as here, the court imposes a restitution fine above the
mandatory minimum of $300. (Pen. Code, § 1202.4, subd. (d).) The imposition of a
sexual offender fine under Penal Code section 290.3 is also expressly subject to the
defendant’s ability to pay. (Pen. Code, § 290.3, subd. (a).) And beyond that, Dueñas
ruled due process requires the trial court to ascertain a defendant’s present ability to
pay before imposing a restitution fine or the type of court fees imposed in this case.
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(Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167, 1172.)
As appellant points out, the record indicates he is both indigent and
physically disabled. Although he was worked at times during his lifetime, he is now

5
The propriety of that ruling is currently before the Supreme Court in People v. Kopp (2019) 38
Cal.App.5th 47, review granted Nov. 13, 2019, S257844.

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52 years old and experiencing both visual and ambulatory problems. Because there is
a legitimate question as to whether he has the ability to work in prison or otherwise
secure the means to pay the financial penalties imposed on him, we reverse those
penalties and remand for a hearing on that issue. (People v. Santos (2019) 38
Cal.App.5th 923, 933-934.) At the hearing, appellant will have the burden to
demonstrate his inability to pay; the prosecution need not prove he can. (Id. at p. 934;
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [burden of proof logically falls
on the defendant since he is in the best position to know his financial situation and his
ability to pay].)
DISPOSITION
Appellant’s restitution and sex offender fines, as well as his court
facilities and operations fees, are reversed and the matter is remanded for a hearing on
appellant’s ability to pay those monetary penalties. In all other respects, the judgment
is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

GOETHALS, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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