People v. Fregoso CA2/6

Filed 6/15/22 P. v. Fregoso CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B306325
(Super. Ct. No. 2013012256)
Plaintiff and Respondent, (Ventura County)

v.

GUSTAVO ALONSO
FREGOSO,

Defendant and Appellant.

Gustavo Alonso Fregoso appeals the judgment entered after
a jury convicted him of committing sodomy on a child under the
age of 11 (Pen. Code,1 § 288.7, subd. (a)). The trial court
sentenced appellant to 25 years to life in state prison and ordered
him to pay fines, fees and assessments including a $10,000
restitution fine (§ 1202.4, subd. (b)), a $40 court facilities
assessment (§ 1465.8, subd. (a)(1)), a $30 court operations

All statutory references are to the Penal Code unless
1

otherwise stated.
assessment (Gov. Code, § 70373), and a $1,200 sex offender fine
including related assessments (§ 290.3).
Appellant contends: (1) the court erred in denying his
Miranda2 motion; (2) the court erred by admitting expert
testimony on Child Sexual Abuse Accommodation Syndrome
(CSAAS), and by instructing the jury pursuant to CALCRIM No.
1193; (3) cumulative error compels the reversal of his conviction;
and (4) the court erred in imposing the fines, fees and
assessments without determining whether he had the ability to
pay them, as contemplated in People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). We affirm.
STATEMENT OF FACTS
Prosecution
Appellant was convicted of sodomizing his niece L.C., who
was eight years old when she testified at his trial. Beginning in
2012, when L.C. was six years old, she and her mother Maria (the
sister of appellant’s wife Enedelia Gaspar) often spent the night
at her grandparents’ house. L.C. slept in a bedroom with
appellant, Gaspar, and their three-year-old son. Appellant slept
in the same bed as L.C. and on numerous occasions put his hand
on her vagina and touched her vagina and buttocks with his
penis. Appellant had also put his penis in her anus several times
when she was five or six years old.
In January 2013, L.C. told Maria about the abuse. L.C.
told Maria she did not come to her earlier or scream out during
the incidents because she was afraid. Maria confronted Gaspar
about the allegations but waited three months to go to the police
because she was confused and conflicted about the situation.

Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]
2

(Miranda).

2
 On April 16, 2013, L.C. was interviewed by Oxnard Police
Detective Erica Escalante. A recording of the interview was
played at trial. L.C. told the detective that on numerous
occasions appellant had grabbed her, pulled her onto the bed,
pulled down her underwear, and put his penis in her anus. L.C.
was also examined by a sexual assault nurse examiner who
determined that L.C.’s anus was “open beyond normal” and had
scar tissue indicating she had been anally penetrated multiple
times over an extended period.
After L.C. was interviewed and examined, Detective
Escalante and Detective Luis McArthur, a certified Spanish
interpreter, went to appellant’s house and asked him to come to
the police station to talk to them. Appellant subsequently met
the detectives at the station and was interviewed for
approximately three hours. He initially denied the accusations
made by L.C. Detective McArthur said that with appellant’s
permission they would obtain a DNA sample from him and would
compare his DNA with DNA allegedly found in or near L.C.’s
anus. Appellant eventually admitted an incident when he
sodomized L.C., but claimed that L.C. had grabbed his penis and
forced it into her anus. After appellant was arrested and given
Miranda advisements, he repeated his prior remarks about
sodomizing L.C.
Dr. Jody Ward, a clinical and forensic psychologist, testified
as an expert regarding Child Sexual Abuse Accommodation
Syndrome (CSAAS). The five components of CSAAS are secrecy,
helplessness, entrapment and accommodation, delayed and
unconvincing disclosure, and retraction or recantation. Secrecy
could be due to shame or fear that reporting the abuse would
break up the family. It is also not unusual for a victim to refrain

3
from crying out for help even if other people were nearby.
Regarding entrapment and accommodation, it may appear that a
victim is a willing participant in the abuse because children may
acquiesce in the abuse to meet their emotional needs or protect
their siblings. Moreover, two-thirds of child victims of sexual
abuse do not report the abuse until adulthood, while many never
report the abuse. Where abuse took place over a long period of
time, it is common for victims to have difficulty separating out
specifics instances or details of the abuse.
Defense
Gaspar testified that in late 2012 and early 2013 L.C. spent
the night almost every weekend with appellant, Gaspar, and
their son. The children slept on the bed and appellant and
Gaspar slept on the floor in the same room. Gaspar, who
characterized herself as a light sleeper, never noticed any odd
behavior at night between appellant and L.C. Prior to the
current allegations, Gaspar had never heard anyone else accuse
appellant of acting inappropriately with children and Gaspar had
never seen him doing so. Appellant’s aunt and another relative
who had known appellant since she was 13 years old also
testified that they had never witnessed appellant behaving
inappropriately toward children.
DISCUSSION
Miranda Motion
Appellant contends the trial court erred in denying his
motion to exclude his extrajudicial statements to the police on the
ground they were obtained in violation of his Miranda rights. We
conclude otherwise.
Miranda dictates that individuals questioned by law
enforcement after being “taken into custody” must first be

4
warned that they have the right to remain silent, that any
statements they make may be used against them, and that they
have a right to the presence of retained or appointed counsel.
(Miranda, supra, 384 U.S. at p. 444.) For the Miranda rule to
apply, there must be an interrogation by the police while the
suspect is in police custody. (Id. at p. 478.)
Whether a person is in custody “depends on the objective
circumstances of the interrogation, not on the subjective views
harbored by either the interrogating officers or the person being
questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323
[128 L.Ed.2d 293].) “The question whether [the] defendant was
in custody for Miranda purposes is a mixed question of law and
fact.” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “[A]n
appellate court must ‘apply a deferential substantial evidence
standard’ [citation] to the trial court’s factual findings regarding
the circumstances surrounding the interrogation, and it must
independently decide whether, given those circumstances, ‘a
reasonable person in [the] defendant’s position would have felt
free to end the questioning and leave’ [citation].” (People v.
Leonard (2007) 40 Cal.4th 1370, 1400.)
“To determine whether an interrogation is custodial we
consider a number of circumstances, including: ‘whether contact
with law enforcement was initiated by the police or the person
interrogated, and if by the police, whether the person voluntarily
agreed to an interview; whether the express purpose of the
interview was to question the person as a witness or a suspect;
where the interview took place; whether police informed the
person that he or she was under arrest or in custody; whether
they informed the person that he or she was free to terminate the
interview and leave at any time and/or whether the person’s

5
conduct indicated an awareness of such freedom; whether there
were restrictions on the person’s freedom of movement during the
interview; how long the interrogation lasted; how many police
officers participated; whether they dominated and controlled the
course of the interrogation; whether they manifested a belief that
the person was culpable and they had evidence to prove it;
whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to
pressure the suspect; and whether the person was arrested at the
end of the interrogation.’” (People v. Torres (2018) 25 Cal.App.5th
162, 172-173.)
Detectives Escalante and McArthur testified at the hearing
on appellant’s motion. The prosecution also offered a video
recording and transcript of appellant’s interview. At about 7:00
p.m. on April 16, 2013, the detectives went to appellant’s
residence to speak to him about the allegations L.C. had reported
to the police earlier that day. Detective McArthur acted as a
Spanish translator. The detectives told appellant they would like
to speak to him at he police station about a “sensitive matter” but
made clear he was not under arrest and was not obligated to go to
the police station or answer any questions he did not want to
answer. Appellant responded that he understood, drove to the
police station with Gaspar and her mother shortly thereafter, and
met up with the detectives in the parking lot.
Gaspar and her mother sat in the lobby while appellant
accompanied the detectives to an interview room. Appellant was
not handcuffed and the door to the room was left open during the
entire interview, which lasted about three hours. Appellant was
relaxed and calm throughout the interview, which was conducted
entirely in Spanish, and was offered water and snacks. At the

6
outset of the interview, Detective McArthur reiterated that
appellant was not in custody or under arrest and told him he was
free to leave at any time. The detective also reiterated that
appellant did not have to answer any questions he did not want
to answer. If appellant had wanted to leave, the detectives would
have guided him out of the police station.
Detective McArthur asked appellant why he thought he
had been asked to speak with them at the police station.
Appellant responded that he knew Maria had accused him of
sexually abusing L.C. About 90 minutes into the interview,
appellant admitted there had been some contact between his
penis and L.C.’s buttocks but did not admit sodomizing her.
After Detective McArthur told appellant that his DNA would
probably be found on L.C., appellant began offering suggestions
as to how his DNA might be found in or around L.C.’s anus. He
claimed that he may have accidentally touched L.C. with his
erect penis while they were sleeping.
Detective McArthur asked appellant if he would voluntarily
provide a cheek swab to compare his DNA to DNA allegedly
found during L.C.’s medical exam. Appellant asked if he was
going to be arrested. The detective replied that appellant would
have the opportunity to explain if the DNA test came back
positive. After appellant voluntarily provided a buccal swab,
Detective Escalante took the swab and left for about 15 minutes.
The detective subsequently engaged in a ruse by returning with a
purported test result falsely showing that appellant’s DNA was
found in L.C.’s anus.
Appellant subsequently admitted an incident when he
sodomized L.C. After he was arrested and given Miranda

7
advisements, he repeated his prior remarks about sodomizing
L.C.
The court did not err in denying appellant’s motion to
exclude his statements to Detectives Escalante and McArthur.
Appellant came to the police station voluntarily and was
repeatedly told he was not under arrest and was free to leave.
The door was left open throughout the interview and only two
detectives were present. On one occasion, appellant left the
interview room to use the bathroom. Moreover, the detectives’
statements and demeanor throughout the interview were not
aggressive, confrontational, or accusatory. (Compare, e.g.,
People. v. Saldana (2018) 19 Cal.App.5th 432, 458-459 [defendant
was in custody where, among other things, detectives “were
aggressive, confrontational and accusatory” and communicated a
“resolute belief” that he committed the crime]; People v. Torres,
supra, 25 Cal.App.5th at p. 176 [defendant was in custody where
“the detectives dominated and controlled the course of the
interrogation” and “ask[ed] confrontational and accusatory
leading questions”].)
Although appellant notes that he asked if he could leave
after he provided a buccal swab and that the detectives’ response
suggested he would have to wait approximately 10 minutes for
them to receive the results, the detectives also repeatedly made
clear that appellant did not have to provide a buccal swab if he
did not want to do so. (Compare People v. Delgado (2018) 27
Cal.App.5th 1092, 1105 [defendant was not free to leave and thus
in custody when police “demanded” his phone and indicated he
could not leave until data was retrieved].) Moreover, appellant
made incriminating statements before he was asked to provide a
buccal swab. We are also unpersuaded by appellant’s complaint

8
that the detectives falsely told him they had found his DNA in
L.C.’s anus. “‘The use of deceptive statements during an
investigation does not invalidate a confession as involuntary
unless the deception is the type likely to procure an untrue
statement.’ [Citation.]” (People v. Fayed (2020) 9 Cal.5th 147,
165.) Appellant makes no such showing here.
We also reject appellant’s claim that the incriminating
statements he made after he was given Miranda warnings were
obtained through an unconstitutional two-step interrogation, in
violation of Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2d
643] (Seibert). Appellant did not raise this claim below so it is
forfeited. (See People v. Linton (2013) 56 Cal.4th 1146, 1170.) In
any event, Seibert prohibits law enforcement officers from
employing a deliberate two-step interrogation technique where
they elicit a confession, administer Miranda warnings and obtain
a waiver of Miranda rights, then elicit a repeated confession.
(Siebert, at pp. 604, 609-610, plur. opn. of Souter, J.; id. at p. 622,
conc. opn. of Kennedy, J.) Seibert, however, involved Miranda
warnings delivered in the midst of a custodial interview. (Id. at
p. 604, plur. opn.) Moreover, Siebert only applies when the police
have deliberately and intentionally sought to circumvent
Miranda. (See People v. Rios (2009) 179 Cal.App.4th 491, 504-
505.) Because appellant makes no such showing here, his
reliance on Siebert is misplaced.
Even if appellant’s statements should have been excluded,
the error would be harmless. L.C. testified that appellant had
repeatedly sodomized her, and she has scar tissue indicating
multiple anal penetrations over an extended period of time. In
light of this evidence, any error in admitting appellant’s
statements was harmless beyond a reasonable doubt. (Chapman

9
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]; People v.
Neal (2003) 31 Cal.4th 63, 86 [applying Chapman harmless error
standard of review to Miranda violation].)
CSAAS Testimony
Appellant contends the trial court erred in admitting Dr.
Ward’s testimony on CSAAS. He asserts that the testimony was
“irrelevant to the issues in [the] case and is unreliable ‘scientific’
evidence that is not generally accepted by the scientific
community.” He also claims that the evidence should have been
excluded under Evidence Code section 352 as more prejudicial
than probative. We are not persuaded.
In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our
Supreme Court approved of the decisions of Courts of Appeal
holding that CSAAS testimony is admissible for some purposes.
(Id. at p. 1300.) McAlpin was followed by People v. Brown (2004)
33 Cal.4th 892 (Brown), which upheld the use of expert testimony
on battered women’s syndrome based on similar reasoning.
(Brown, at pp. 905-907.) It is now well-settled that CSAAS
evidence is admissible for the limited purposes for which it is
admitted in this case. (McAlpin, at pp. 1300-1301; see also People
v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Perez (2010)
182 Cal.App.4th 231, 243-245; People v. Sandoval (2008) 164
Cal.App.4th 994, 1001-1102 (Sandoval); People v. Patino (1994)
26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Bowker (1988)
203 Cal.App.3d 385, 390-394 (Bowker).) We are also clearly
bound to follow McAlpin and Brown. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455; Munch, at p. 468.) As
we recently recognized, the Kelly/Frye test (which applies to
expert testimony based on a new scientific technique) “‘does not
apply to this type of evidence.’ [Citations.]” (Munch, at p. 473.)

10
Accordingly, the trial court’s decision to admit expert testimony
on CSAAS “‘will not be disturbed on appeal unless a manifest
abuse of discretion is shown.’” (McAlpin, at p. 1299.)
While CSAAS testimony is inadmissible to prove that a
molestation occurred, it is nevertheless admissible as to the
alleged victim’s “‘credibility when the defendant suggests that the
child’s conduct after the incident—e.g., a delay in reporting—is
inconsistent with his or her testimony claiming molestation.’”
(Sandoval, supra, 164 Cal.App.4th at p. 1001, quoting McAlpin,
supra, 53 Cal.3d at pp. 1300-1301.) CSAAS evidence has been
held 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 . . . .”’” (Sandoval, at p. 1002, quoting
McAlpin, at p. 1301.) “‘For instance, where a child delays a
significant period of time before reporting an incident or pattern
of abuse, an expert could testify that such delayed reporting is
not inconsistent with the secretive environment often created by
an abuser who occupies a position of trust. In the typical
criminal case . . . , it is the People’s burden to identify the myth
or misconception the evidence is designed to rebut.’” (Sandoval,
at p. 1002, quoting Bowker, supra, 203 Cal.App.3d at p. 394.)
“Identifying a ‘myth’ or ‘misconception’ has not been
interpreted as requiring the prosecution to expressly state on the
record the evidence which is inconsistent with the finding of
molestation. It is sufficient if the victim’s credibility is placed in
issue due to the paradoxical behavior, including a delay in
reporting a molestation.” (Patino, supra, 26 Cal.App.4th at pp.
1744-1745.) That was plainly the case here. In cross-examining
the sexual assault nurse who examined L.C., defense counsel

11
asked if the claimed abuse would cause a great deal of pain and
whether such pain “would be accompanied by crying or screaming
of some sort.” In cross-examining Escalante, defense counsel
asked “[d]id strike you as odd that” appellant could have
molested L.C. in such a small room while Gaspar was present.
Defense counsel also elicited Escalante’s testimony that the
alleged acts took place between November 2012 and January
2013, yet they were not reported until April 2013. It is thus clear
that “the victim’s credibility [was] placed in issue due to . . .
paradoxical behavior.” (Patino, at pp. 1744-1745.)
CALCRIM No. 1193
Appellant also contends that the court erred in instructing
the jury pursuant to CALCRIM No. 1193 because the instruction
misstates the law and reduced the prosecution’s burden of proof.
We have previously rejected this contention. (See Munch, supra,
52 Cal.App.5th at p. 474; People v. Gonzales (2017) 16
Cal.App.5th 494, 504.)
In Munch, the defendant claimed that CALCRIM No. 1193
“‘effectively instructs the jury that they may take [the expert’s]
testimony as evidence of the defendant’s guilt’” because
“instructing jurors that they may use it ‘in evaluating the
believability’ of the child’s testimony means they will improperly
use it to find the defendant is guilty.” (Munch, supra, 52
Cal.App.5th at p. 474.) In rejecting this claim we reasoned that
“‘[t]he 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

12
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 not show she had been molested. There is no conflict in the
instruction.’” (Ibid., italics omitted, quoting Gonzales, supra, 16
Cal.App.5th at p. 504.)
Appellant offers nothing to persuade us that Munch and
Gonzales were incorrectly decided on this point. Accordingly, we
follow our previous holdings that CALCRIM No. 1193 is a correct
statement of the law and sufficiently advises the jury that
CSAAS evidence may not be used to prove that the defendant
committed any of the charged crimes.
Cumulative Error
Appellant contends that the cumulative effect of the alleged
errors compels reversal of the judgment. Because we reject each
assignment of error, appellant’s claim of cumulative error
necessarily fails. (People v. Avila (2006) 38 Cal.4th 491, 608.)
Dueñas
Appellant contends the court erred in imposing a $10,000
restitution fine (§ 1202.4, subd. (b)), a $40 court facilities
assessment (§ 1465.8, subd. (a)(1)), a $30 court operations
assessment (Gov. Code, § 70373), and a $1,200 sex offender fine
including related assessments (§ 290.3) without determining
whether he had the ability to pay as contemplated in Dueñas,
supra, 30 Cal.App.5th 1157. We are not persuaded.
In Dueñas, the court concluded that “due process of law
requires the trial court to conduct an ability to pay hearing and

13
ascertain a defendant’s present ability to pay before it imposes
court facilities and court operations assessments under . . .
section 1465.8 and Government Code section 70373.” (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) The court also concluded that
“although . . . section 1202.4 bars consideration of a defendant’s
ability to pay unless the judge is considering increasing the fee
over the statutory minimum, the execution of any restitution fine
imposed under this statute must be stayed unless and until the
trial court holds an ability to pay hearing and concludes that the
defendant has the present ability to pay the restitution fine.”
(Ibid.)
With respect to appellant's $10,000 restitution fine, the
trial court had the authority, even before Dueñas, to “consider[ ]”
the defendant’s “[i]nability to pay” whenever it “increase[ed] the
amount of the restitution fine” in excess of the $300 minimum.
(§ 1202.4, subds. (b)(1), (c).) The $1,200 sex offender fine and
related assessments also contemplate a finding regarding the
defendant’s ability to pay. (§ 290.3) When a statute mandates a
fine but requires the court to consider the defendant’s ability to
pay, the burden is on the defendant to object or demand a
hearing to determine the ability to pay. (People v. McMahan
(1992) 3 Cal.App.4th 740, 749-750.) At sentencing, appellant did
not object or demand a hearing regarding his ability to pay the
restitution or sex offender fines, so he forfeited his right to
challenge those fines on appeal. (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1154.) Because appellant failed to object to the
restitution and sex offender fines by asserting an inability to pay,
he also cannot be heard to complain that the court failed to
consider his ability to pay the $40 court facilities and assessment

14
and the $30 court operations assessment. (See People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
In any event, “Dueñas is distinguishable. That case
involved a homeless probationer . . . who suffered from cerebral
palsy and was unable to work. [Citation.]” (People v. Johnson
(2019) 35 Cal.App.5th 134, 138.) Appellant, who was sentenced
to prison, “is not similarly situated to the misdemeanor
probationer in Dueñas. He was ordered to pay mandatory fees
and a fine under the same constellation of statutes that were at
issue in Dueñas, but there the similarity ends.” (Id. at p. 139.)
Appellant has the ability to earn wages while in prison. Any due
process violation arising from the court’s failure to consider
appellant’s ability to pay the court security fee and criminal
conviction assessment was thus harmless beyond a reasonable
doubt. (Id. at pp. 139-140 citing Chapman v. California, supra,
386 U.S. at p. 24.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J. YEGAN, J.

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 Bruce A. Young, Judge
Superior Court County of Ventura
______________________________

Arielle Bases, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.