People v. Whyte CA1/5

Filed 10/18/22 P. v. Whyte CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A160769
v.
LARRY WHYTE, (Sonoma County
Super. Ct. No. SCR7243081)
Defendant and Appellant.

Defendant and appellant Larry Whyte (Appellant) appeals from the
trial court’s judgment following his conviction of various sexual abuse
offenses. We reject his claims and affirm.
PROCEDURAL BACKGROUND
In September 2019, the District Attorney of Sonoma County filed an
information charging Appellant with six counts of committing a lewd act
upon a child under the age of 14, Jane Doe, between August 2008 and August
2011 (count one), and between August 2010 and August 2012 (counts four,
five, seven, eight, and nine) (Pen. Code, § 288, subd. (a)); 1 causing a minor,
Jane Doe, to engage in sexual conduct for the purpose of making a
photograph between August 2009 and August 2011 (count two; § 311.4,
subd. (c)); possession of child pornography on February 1, 2019 (count three;

1 All undesignated statutory references are to the Penal Code.

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§ 311.11, subd. (a)); sexual penetration with a child ten years old or younger,
Jane Doe, between August 2010 and August 2012 (count six; § 288.7,
subd. (b)); and oral copulation of a person under 16 years old, Jane Doe,
between August 2015 and December 2015 (count ten; former § 288a,
subd. (b)(2)).
In January 2020, a jury found Appellant guilty on all counts. In
August, the trial court sentenced Appellant to prison for a determinate term
of 17 years and 4 months, plus an indeterminate term of 15 years to life.
The present appeal followed.
FACTUAL BACKGROUND
Testimony of Jane Doe
Jane Doe, the alleged victim, was 18 at the time of her testimony in
January 2020. Appellant was Jane Doe’s godfather. She met him when she
was around six years old. She would visit Appellant in his recreational
vehicle (RV) when he was in town, and he would buy her things and take her
to fun places. During the visits to the RV, Appellant encouraged Jane Doe to
be naked. He told her it was “normal” and “natural,” and he showed her
“pictures on his computer of friends of his that were nude and at beaches
with a bunch of other nude people.” He also showed her pornographic
movies.
Appellant encouraged Jane Doe to play a version of hide and seek in
which she was naked; sometimes he was naked too. On multiple occasions
when Jane Doe was 7 to 10 years old, while playing hide and seek with the
lights on, Appellant touched her on the chest and vagina, including inside her
vagina. During these games, Jane Doe was alone with Appellant.

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 On multiple occasions when Jane Doe was between 8 and 10 years old,
Appellant used paint and markers to draw on her naked body. He also
photographed her naked painted body, and she painted his naked body.
Jane Doe also recalled an occasion when Appellant put her hand on his
penis; he said it was something his granddaughter (Jane Doe 2) had done.
She “vaguely remember[ed]” it happening more than once.
Multiple times, starting when Jane Doe was around the age of nine,
Appellant held a vibrating electric toothbrush and sometimes an electric
massager against her clitoris. Appellant told Jane Doe that his
granddaughter and two of her friends were able to withstand the “tickl[ing]”
for certain amounts of time, which made Jane Doe feel she should try to last
longer.
When Jane Doe was around 11 years old, a friend (later identified as
Katrina P.) began accompanying Jane Doe to Appellant’s RV. Katrina P. was
present for games of hide and seek, during which the lights in the RV were
off and Appellant “would try to identify who was who by touching” their “body
parts.”
On one occasion before Jane Doe’s 14th birthday, Appellant put his
mouth on her vagina. Katrina P. was not present. Sometime after then,
Jane Doe stopped seeing Appellant because she “realized what he was doing
was wrong.” When Jane Doe was 14 years old, she told her mother about the
sexual abuse, but she did not tell law enforcement at that time.
On cross-examination, defense counsel confronted Jane Doe with
inconsistencies between her testimony and prior accounts of the abuse.
When asked about the delay in reporting the abuse to law enforcement, she
said she “was not strong enough to go forward” earlier.

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Testimony of Jane Doe 3
Jane Doe 3, who was 16 years old at the time of her testimony, was a
friend of Appellant’s granddaughter (Jane Doe 2). Jane Doe 3 testified that
she and Jane Doe 2 would visit Appellant in his RV when he traveled to
Oregon when she and Jane Doe 2 were around six to eight years old. During
that time, Appellant introduced them to a game that involved hiding each
other’s pants and underwear; they were commonly naked from the waist
down in the RV. During that same time period, Appellant also frequently
had the girls touch his penis. Finally, Jane Doe 3 remembered Appellant
holding a vibrating electric toothbrush against her vagina a couple of times;
the object of the “game” was to see how long she could stand the “tickling.”
Physical Evidence Recovered from Appellant’s RV
In August 2017, Jane Doe gave a statement to the police regarding the
sexual abuse. In early 2019, Appellant was arrested in the City of Petaluma
and his RV was searched. An electric toothbrush and an electric massager
were found in the RV; at trial, Jane Doe identified them as the ones
Appellant held to her vagina. Also, a picture frame with a digital storage
card was found in the RV. The police were able to recover 34 deleted photos
from the storage card. Thirteen of them were photographs of a girl’s
prepubescent naked body, sometimes with body paint. A number of the
photographs were centered on the girl’s genital area. When a deputy showed
cropped versions of two of the photographs to Jane Doe, she identified the girl
as herself.
Katrina P.’s Testimony for the Defense
Katrina P. testified she met Jane Doe when she was around seven
years old; Jane Doe was eight years old. Katrina P. was about 10 years old
when she met Appellant. She and Jane Doe always visited Appellant

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together when he was in town. Katrina P. had never seen Appellant do
anything inappropriate and she opined the allegations against Appellant
were not consistent with his character. She never saw Appellant walk
around naked and he never showed her photographs or videos of naked
people. Appellant never touched her vagina with an electric toothbrush or
massager, and she never saw Appellant do that to Jane Doe. Sometimes
Jane Doe took off her clothes, and Appellant encouraged her to put them back
on. They did play hide and seek in the dark in Appellant’s RV, but Appellant
did not grope her during the game. Katrina P. recalled that Jane Doe would
sometimes get naked during the game and Appellant had to get her to put
her clothes back on. Katrina P. and Jane Doe stopped being friends at the
age of 13. Katrina P. believes Jane Doe is not an honest person.
On cross-examination, Katrina P. acknowledged Appellant is the only
father figure in her life. She also admitted that Jane Doe was the girl in one
of the sexually explicit photos recovered from Appellant’s RV.
DISCUSSION
I. There Was No Ineffective Assistance of Counsel With Respect to a
Statement Made by Jane Doe’s Support Person
After the prosecution called Jane Doe to the stand, but before the start
of her substantive testimony, the trial court commented, “I see that you have
someone with you. This is an emotional support person. Are you from the
District Attorney’s Office?” The support person responded that she was from
“Verity.” The court then asked Jane Doe if she “wish[ed] to have [the support
person] with [her] while [she] testif[ied].” After Jane Doe answered in the
affirmative, the court asked the support person to “explain what Verity is.”
The support person responded, “We are the sexual assault rape crisis centers.

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We support people who have been sexually assaulted or trafficked.” Defense
counsel did not object.
Under section 868.5, subdivision (a), in a case involving charges of
sexual abuse such as those in the present case, a “prosecuting witness …
shall be entitled, for support, to the attendance of up to two persons of [his or
her] own choosing, one of whom may be a witness, at the preliminary hearing
and at the trial, or at a juvenile court proceeding, during the testimony of the
prosecuting witness.” It is well established that “[t]he utilization of support
persons is not by itself a practice that presents an unacceptable risk that
impermissible factors will come into play which might erode the presumption
of innocence.” (People v. Patten (1992) 9 Cal.App.4th 1718, 1732–1733.)
On appeal, Appellant concedes that, normally, a support person’s
presence is “statutorily and constitutionally permissible.” But he argues his
due process rights were violated in the present case because, during the
challenged exchange, the trial court improperly elicited a statement that the
support person “believed that Jane Doe was in fact a victim of sexual assault
or trafficking.” Appellant characterizes the claim as both an “inadvertent act
of judicial misconduct” and “an act akin to spectator misconduct.” He also
argues the issue should be analyzed under “individualized variables that
affect whether the presence of a support person violates a defendant’s due
process rights,” citing People v. Patten, supra, 9 Cal.App.4th 1718 and section
868.5. We conclude that, however the claim is characterized, any claim based
on the challenged comment by the support person was forfeited, and defense
counsel’s forfeiture of that claim was not ineffective assistance of counsel
(IAC).
At the outset, we conclude Appellant’s claim was forfeited due to his
counsel’s failure to object. (People v. Stevens (2009) 47 Cal.4th 625, 641.)

6
Appellant argues an objection “would have been futile as it was the court
[that] inadvertently elicited this information for the jury.” But Appellant
points to nothing in the record suggesting the trial court would have been
unwilling to admonish the jury. (See People v. Seumanu (2015) 61 Cal.4th
1293, 1320 [“the circumstances in no way suggest an objection and a request
to have the jury admonished would have found an unsympathetic jurist”].)
For example, the court could have admonished the jury pursuant to
CALCRIM No. 377, which provides in part, “Do not consider the presence of
the [support person] who [is] with the witness for any purpose or allow it to
distract you.” Or the court could have specifically admonished the jury to
disregard the support person’s description of Verity. Appellant asserts that
such an admonishment would have been ineffective, but he provides no
persuasive reasoning why and cites no authority to that effect. “We presume
that a jury follows the court’s admonishments.” (People v. Schultz (2020)
10 Cal.5th 623, 673.) Accordingly, any claim based on the challenged
comment by the support person has been forfeited.
Appellant also contends that, if his claim was forfeited then he received
IAC.2 “ ‘ “In assessing claims of ineffective assistance of trial counsel, we
consider whether counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms and whether the
defendant suffered prejudice to a reasonable probability, that is, a probability
sufficient to undermine confidence in the outcome. [Citations.] ... Defendant
thus bears the burden of establishing constitutionally inadequate assistance
of counsel.” ’ ” (People v. Brown (2014) 59 Cal.4th 86, 109 (Brown).) “If the

2 Our analysis as to IAC is the same whether the claim is characterized
as judicial misconduct, spectator misconduct, or a challenge to the presence of
the support person.

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record ‘sheds no light on why counsel acted or failed to act in the manner
challenged,’ an appellate claim of [IAC] must be rejected ‘unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th
641, 746.)
We reject Appellant’s IAC claim. Defense counsel reasonably could
have concluded an admonishment regarding the support person’s comment
was unnecessary in light of the introductory admonishments the trial court
gave to the jury earlier in the day, including, “You must decide what the facts
are in this case. You must use only the evidence that is presented in the
courtroom. Evidence is the sworn testimony of witnesses, the exhibits
admitted into evidence, and anything else I tell you to consider as evidence.”
The court had also admonished the jurors, “You alone must judge the
credibility or believability of the witnesses.” “Defense counsel cannot be
faulted for not requesting an instruction that would duplicate the one given
by the court.” (People v. Lucero (2000) 23 Cal.4th 692, 730.)
Furthermore, defense counsel reasonably could have chosen not to
object or request a special admonishment to avoid drawing attention to the
support person’s comment or to avoid suggesting to the jury that the
comment had significance. As respondent argues on appeal, “defense counsel
could have reasonably assumed the jury would interpret the remark as a
general statement about the organization’s mission.” Given the likelihood
that jurors would put no weight on the support person’s brief general
description of her employer, defense counsel could have reasoned that an
objection and request for an admonishment would have been counter-
productive. (People v. Harris (2008) 43 Cal.4th 1269, 1290 [“while requesting
an admonition was one tactical option, counsel could also have decided that

8
objecting would focus the jury’s attention on the [challenged statement] in
ways that would not be helpful to the defense”]; People v. Carter (2003)
30 Cal.4th 1166, 1223 [“the record does not reveal whether counsel had a
plausible tactical reason for not requesting” that the jury be instructed to
view extrajudicial statements with caution, “such as to avoid unduly focusing
the jury’s attention on those statements”].)3
In conclusion, Appellants’ claims based on the challenged statement by
the support person have been forfeited and Appellant has not shown defense
counsel’s failure to object could not have been a reasonable tactical decision,
as required for an IAC claim on direct appeal.
II. The Trial Court Did Not Err in Admitting Expert Testimony
Appellant contends the trial court erred in allowing the prosecution to
introduce expert testimony regarding Child Sexual Accommodation Abuse
Syndrome (CSAAS). Appellant has not shown error.4
A. Background
Before trial, Appellant moved to exclude expert testimony regarding
CSAAS. Appellant argued the evidence in the case did “not warrant” such
testimony because “[t]here is no evidence tending to show that Jane Doe

3 We also reject any IAC claim on the theory that the support person’s
statement, when viewed in the totality of the circumstances, made the
support person’s presence a due process violation. Defense counsel could
reasonably have concluded that objecting to the presence of the support
person after she made the challenged statement would have engendered
great sympathy in favor of Jane Doe, and that the single passing statement
did not render the support person’s presence prejudicial in light of the trial
court’s instructions.
4 Because Appellant has shown no error in admission of the expert
testimony, he necessarily has failed to show IAC due to his counsel’s failure
to present certain objections to the testimony.

9
manifested any symptoms as characterized in the syndrome.” At the hearing
on the motion, defense counsel also argued the CSAAS expert testimony
should be excluded because the risk of prejudice far outweighed the probative
value, especially because Jane Doe was an adult who could explain her own
behavior to the jury. The trial court denied the motion.
At trial, Dr. Blake Carmichael testified he is a clinical psychologist
working primarily with children who have suffered some form of
“maltreatment.” After explaining his background and experience, he was
deemed an expert regarding CSAAS. Dr. Carmichael testified he had no
knowledge about the facts of the case before the jury. He opined the CSAAS
model can be “very helpful to educate people” about the “counterintuitive”
behavior of victims of childhood sexual abuse. Among other things, he
testified that people should not have expectations regarding the outward
emotional responses of children to abuse; that abused children may
repeatedly return to an abuser; how abusers may “groom” children for abuse;
why children may delay in reporting abuse; and why abused children may
have faulty memories.
After the close of evidence, the trial court instructed the jury regarding
expert testimony in general using CALCRIM No. 332. The court also
instructed the jury regarding CSAAS testimony specifically using CALCRIM
No. 1193. The court explained, “You have heard testimony from Dr.
Carmichael regarding [CSAAS]. [¶] Dr. Carmichael’s testimony about
[CSAAS] is not evidence that the defendant committed any of the crimes
charged against him. [¶] You may consider this evidence only in deciding
whether or not Jane Doe’s conduct was not inconsistent with the conduct of
someone who has been molested, and in evaluating the believability of her
testimony.”

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 B. Legal Background
We review the trial court’s decision whether to admit expert testimony
for an abuse of discretion. (People v. Lapenias (2021) 67 Cal.App.5th 162, 170
(Lapenias).) “An appellate court cannot reverse a judgment based on the
erroneous admission of evidence unless the admitted evidence ‘resulted in a
miscarriage of justice.’ (Evid. Code, § 353, subd. (b).) In a criminal case, a
miscarriage of justice can only be found when the reviewing court determines
it is reasonably probable that a result more favorable to the defendant would
have been reached had the trial court excluded the erroneously admitted
evidence.” (Lapenias, at p. 170, fn. omitted.)
“Expert testimony on ‘the common reactions of child molestation
victims,’ known as CSAAS theory evidence, ‘is admissible to rehabilitate such
witness’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.’ [Citation.] ‘ “Such expert testimony 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.” ’ [Citation.] [¶] But such evidence ‘is
not admissible to prove that the complaining witness has in fact been
sexually abused.’ [Citation.] ‘The expert is not allowed to give an opinion on
whether a witness is telling the truth . . . .’ ” (People v. Julian (2019)
34 Cal.App.5th 878, 885; see also Lapenias, supra, 67 Cal.App.5th at p. 170.)
C. Analysis
At the outset, Appellant argues the CSAAS evidence was “irrelevant
and inadmissible because there are no longer misconceptions to correct and
there is no evidence that any juror in this case held misconceptions related to
how abuse victims should act. . .” That argument appears to have been

11
forfeited because Appellant cites nowhere in the record where he made it
below. In any event, the same argument was rejected in Lapenias, supra,
67 Cal.App.5th at pages 172–173, which involved another case in which
Dr. Carmichael testified. The court of appeal reasoned that the “argument
rests on a factual assertion (misconceptions about child sexual abuse are no
longer present) that was not established prior to the trial court’s evidentiary
ruling.” (Id. at p. 172.) Moreover, “while some prospective jurors in this case
may have been aware of some aspects of CSAAS, it is not clear from the
record that all the empaneled jurors were aware of the entire spectrum of
CSAAS evidence (secrecy, helplessness, entrapment, accommodation, and
recantation). Moreover, even if we were to assume that all the empaneled
jurors were fully aware . . ., we would then find Dr. Carmichael’s testimony to
be merely cumulative and therefore not prejudicial.” (Id. at pp. 172–173.)
We agree with that analysis.
Appellant next argues there was no need for expert testimony
regarding CSAAS because Jane Doe was an adult at the time she testified.
He reasons, “She could most certainly have explained for herself the reasons
why she behaved in the manner she did. If it is true she delayed in reporting,
she could have explained to the jury why this was so. She could have
explained for herself if she had a faulty recollection of events [that] occurred
so many years in the past.” In support of his position, he cites only a 1989
Ohio court of appeal decision concluding that a 14 year old was “perfectly
capable of communicating a case of alleged sexual abuse” and the expert
testimony would be “the equivalent of allowing an expert to testify as to
credibility.” (State v. Davis (1989) 64 Ohio App.3d 334, 346–347.) We reject
that reasoning. In California, expert testimony regarding CSAAS is relevant
to assist the jury in determining whether the alleged victim’s “conduct was

12
not inconsistent with the conduct of someone who has been molested.”
(CALCRIM No. 1193; see also, e.g., People v. Munch (2020) 52 Cal.App.5th
464, 475 [“The CSAAS evidence was relevant to advise jurors that such
normally self-impeaching behavior is not unusual for sexually abused
children.”].) Expert testimony “disabus[ing] jurors” of “commonly held
‘myths’ or misconceptions about child sexual abuse” (Lapenias, supra,
67 Cal.App.5th at p. 171) is relevant regardless of whether the witness can
also explain their conduct. Indeed, the witness can only explain their own
behavior, not the “typical reactions among children who have been sexually
abused.” (Id. at p. 172.) Furthermore, even if we were to conclude that Jane
Doe’s testimony was an adequate substitute for testimony about CSAAS, we
would then find Dr. Carmichael’s testimony to be merely cumulative and
therefore not prejudicial. (See id. at pp. 172–173.) Appellant’s argument
fails.
Appellant also argues expert CSAAS testimony is inadmissible because
it is unreliable under the Kelly rule,5 which “concerns the admissibility of
evidence based on a new scientific method, which requires a showing the
method is generally accepted in the relevant scientific community.”
(Lapenias, supra, 67 Cal.App.5th at p. 173.) That argument appears to have
been forfeited because Appellant cites nowhere in the record where he made
it below. In any event, the argument was rejected in the Lapenias decision,
which reasoned, “Here, the theory of CSAAS is not new. [Citation.] Further,
CSAAS testimony does not purport to provide a definitive truth; rather, the
expert testimony attempts to disabuse jurors of misconceptions they might
hold about the conduct of children who have been sexually abused. In short,
expert CSAAS testimony is not ‘ “ ‘scientific’ ” evidence’ subject to the Kelly

5 People v. Kelly (1976) 17 Cal.3d 24.

13
rule.” (Lapenias, at p. 173.) Again, we agree with the analysis of the
Lapenias court. (See also Munch, supra, 52 Cal.App.5th at pp. 472–473 [also
rejecting challenge to CSAAS evidence under the Kelly rule].)
Appellant argues the CSAAS evidence should have been excluded
under Evidence Code section 352 because the probative value was
substantially outweighed by the probability of undue prejudice. The
argument rests on his previous arguments that the CSAAS evidence is not
probative because there are no longer generally held misconceptions and
because the CSAAS theory lacks scientific validity. We have rejected those
arguments and have concluded that Dr. Carmichael’s testimony was relevant
to help the jury to assess Jane Doe’s credibility.6
Neither did Appellant demonstrate a risk of undue prejudice that
substantially outweighed the probative value of the expert testimony. “Here,
the prosecution charged [Appellant] with committing multiple sex crimes
against his [goddaughter] when she was under 14 years old. From our
perspective, the prejudicial impact of the relatively benign CSAAS testimony
was likely to have paled in comparison to the charged conduct.” (Lapenias,
supra, 67 Cal.App.5th at p. 174; see also Munch, supra, 52 Cal.App.5th at
p. 475 [the expert’s “testimony was relatively short and benign as compared
to the highly relevant explicit details of the sexual offenses Jane Doe testified
about” and “[t]he potential prejudicial impact of [the expert’s] testimony was
also reduced because [the expert] testified that he knew no facts about this
case”].) Contrary to Appellant’s argument, Dr. Carmichael was very clear he
was not opining on whether Jane Doe had been abused, and the trial court’s

6 The decision in People v. Clotfelter (2021) 65 Cal.App.5th 30, is
distinguishable. In that case, it was “not at all apparent that the CSAAS
testimony was relevant” because the alleged victims “denied they had been
touched inappropriately.” (Id. at p. 64.)

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instructions clearly prohibited the jury from treating the expert’s testimony
as “evidence that the defendant committed any of the crimes charged against
him.” The trial court did not abuse its discretion in declining to exclude the
CSAAS evidence under Evidence Code section 352. (Lapenias, at p. 174;
Munch, at p. 475.)7
Finally, Appellant argues admission of the expert testimony about
CSAAS violated his rights to due process and a fair trial under the federal
Constitution. The argument is premised on Appellant’s preceding
contentions that the testimony was irrelevant. Because we have rejected
those arguments, we also reject his contention that admission of the evidence
was unconstitutional.
III. Appellant Has Not Shown Prejudicial Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct in eliciting
improper CSAAS testimony and in misusing that testimony during closing
argument, in violation of the trial court’s order restricting the admissibility
and use of CSAAS evidence. The claim fails.

7Appellant argues for the first time in his reply brief that Dr.
Carmichael’s testimony was improper because he “answer[ed] questions that
improperly mirrored various facts in the case” and because the expert did not
expressly testify to the “five components of the CSAAS theory.” (Lapenias,
supra, 67 Cal.App.5th at p. 169.) Arguments asserted for the first time in a
reply brief are forfeited. (Proctor v. Vishay Intertechnology, Inc. (2013)
213 Cal.App.4th 1258, 1273–1274.) In any event, the arguments are
meritless. Appellant cites no authority the CSAAS theory must be presented
in any particular manner, as long as the testimony explains misconceptions
about the behavior of child sexual abuse victims and it is not presented to
prove the alleged sexual abuse occurred. (Lapenias, at p. 170.) And
questioning whether particular behaviors are inconsistent with being a
victim of sexual abuse, including behaviors manifested by the alleged victim
in the case, is in accordance with the purposes for which the CSAAS evidence
is admitted.

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 At the outset, we observe the claim is forfeited because Appellant cites
no portion of the record where he objected below to the portions of testimony
and argument challenged on appeal. (People v. Johnsen (2021) 10 Cal.5th
1116, 1164 (Johnsen).) Appellant argues the failure to object was IAC.8 That
claim fails because counsel may have had a tactical reason not to object (id.
at p. 1165), and, as explained below, any objection would have been without
merit and the alleged misconduct was not prejudicial. (See People v.
Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile
objections”]; Brown, supra, 59 Cal.4th at p. 109 [an IAC claim requires a
showing of a “ ‘ “a reasonable probability” ’ ” the defendant suffered
prejudice].)
As noted above, the claim fails on the merits. The trial court prohibited
the prosecution’s expert from giving “any opinions or conclusions on whether
or not abuse occurred in this case, but rather just on the accommodation
syndrome itself so that the jury can fully understand that issue.” Appellant
argues that, “[i]n violation of that court order, the prosecution elicited
testimony from its expert witness that was tailored to fit Jane Doe’s
testimony, which created a predictive profile of a child abuse victim to show
that Jane Doe was telling the truth about being sexually abused.”
We disagree. As noted in footnote 7, ante, it does not violate the
purposes for which CSAAS evidence is admitted to ask an expert whether
particular behaviors are inconsistent with being a victim of sexual abuse,
including behaviors manifested by the alleged victim in the case.
Accordingly, the prosecutor in the present case did not violate the trial court’s

8We reject Appellant’s contentions that his pre-trial objection to
CSAAS evidence preserved his claims regarding the alleged misconduct and
that any objections would have been futile.

16
order or the established limits on CSAAS testimony by asking Dr.
Carmichael whether the jury should “have any expectations” about a child’s
“outward emotional responses” to abuse; whether an abused child should be
expected to remember every detail of the abuse; whether it would be
inconsistent with abuse for a victim to recall additional details over time;
whether it would be inconsistent with abuse for a child to return to the
abuser; and whether the likelihood of disclosure of abuse could be affected by
“groom[ing],” a victim’s feeling of personal strength, or the child’s “special
relationship” with their abuser.
Although those were behaviors Jane Doe manifested, Appellant points
to nowhere in the expert’s testimony where the expert suggested that if a
child showed such behaviors it meant they had been abused. Instead, the
expert clearly testified that the purpose of educating the jurors about CSAAS
was to disabuse them of misconceptions they may have regarding how abused
children behave. The expert said, “It is important to educate people about
this population of kids that most people don’t know about, don’t study, don’t
come into contact with. And understanding there’s a variety of ways how
kids can and do react after they have been abused, some of which are kind of
counterintuitive.” The expert emphasized, “There is no set of behaviors or
things that you can point to to say that kid was abused because they did this
or they did not do that.” On cross-examination, he confirmed he had “no
personal opinion as to the credibility of anyone who has been testifying
during the course of [the] trial,” emphasizing, “I don’t know any of that
information, and that is the purview of the jury and the legal process.”
Appellant has not shown the CSAAS testimony exceeded the scope of the trial
court’s order or the established legal limits.

17
 Appellant also argues the prosecutor committed misconduct in his
closing argument. Primarily, Appellant argues the prosecutor “invited jurors
to misuse the CSAAS evidence as proof that Jane [Doe] had in fact been
abused.” We disagree. Appellant points to several brief ambiguous
comments. To wit, the prosecutor argued: “Dr. Carmichael taught us that
childhood sexual abuse occurs in the context of a relationship;” “look at the
nature of the relationship, it provides you with a bit of guidance on how to
understand how things happened the way they did;” and “[w]hen we hear
from Jane Doe about how this happened, we hear from Dr. Carmichael about
how this happened. It is hard, but it makes sense.”
Although one interpretation of those statements is that Jane Doe was
abused because the circumstances she described mirrored those described by
Dr. Carmichael, that interpretation was belied by the prosecutor’s other,
more substantial arguments, in which he properly and repeatedly used the
CSAAS evidence to emphasize that the jury should “have no expectations”
regarding how Jane Doe should have responded if she was abused. And, as
noted previously, Dr. Carmichael was clear that he was not testifying Jane
Doe was abused if she manifested the behaviors he described, and the trial
court’s instructions clearly prohibited the jury from treating the expert’s
testimony as “evidence that the defendant committed any of the crimes
charged against him.”9

9 Defense counsel’s closing reflected a consistent interpretation of Dr.
Carmichael’s testimony. He argued the expert’s testimony was not “very
helpful … because his testimony is essentially there is no fixed pattern by
which victims of abuse react to abuse. So it could be consistent that, you
know, they delay in their reporting. They might report right away.
Sometimes they provide inconsistent testimony. Sometimes not. Sometimes
they forget things. Sometimes they remember specific acts. In short,

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 On appeal, Appellant is required to “show that, ‘[i]n the context of the
whole argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner.’ ” (People v. Centeno (2014) 60 Cal.4th 659,
667.) “ ‘In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.” ’ ” (Ibid.) In the present case, there is no
reasonable likelihood the jury understood the challenged brief and ambiguous
arguments to mean that it could use the CSAAS testimony as evidence Jane
Doe was abused, contrary to the trial court’s instructions. (See People v.
Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are presumed able to understand
and correlate instructions and are further presumed to have followed the
court’s instructions”].)10

anything that victim of abuse does is consistent with the truth, according to
Dr. Carmichael.”
10 Appellant also argues the prosecutor’s argument “invited jurors to
further misuse the CSAAS evidence to conclude that appellant had also
sexually abused” Katrina P. However, in the cited argument from the
prosecutor’s rebuttal, he made no reference to the CSAAS evidence; indeed,
he made no reference to CSAAS in the entire rebuttal. And Appellant cites
no authority it was misconduct for the prosecutor to postulate various
reasons why, as he argued, Katrina P. was untruthful. Finally, Appellant
contends the prosecutor committed misconduct when he argued that, in
“assess[ing] the credibility of Jane Doe’s account,” the jury should use
“common sense” and consider “the information about his access to vulnerable
children, his free access to multiple children in multiple places, accounting
for what you know happened in Oregon, accounting for what you know is
found in his trailer with those photographs. . . .” In context, it is clear the
prosecutor was referring to the evidence corroborating Jane Doe’s testimony;
we reject Appellant’s assertion the argument was improperly “calculated to
inflame the jury and evoke anger and punitive impulses of jurors.”

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 In any event, even if some of the prosecutor’s arguments were improper
for the reasons identified by Appellant (including those in footnote 10, ante),
they were not so egregious or pervasive that “ ‘ “it is reasonably probable that
a result more favorable to the defendant would have been reached without
the misconduct.” ’ ” (People v. Martinez (2010) 47 Cal.4th 911, 955.)11
Appellant asserts the present case was a “contest of witness credibility”
between Jane Doe and Katrina P. However, Katrina P. did not directly
contradict most of Jane Doe’s testimony. Appellant asserts that Katrina P.
testified she and Jane Doe visited Appellant when Katrina P. was between 8
and 9, but Katrina P. testified she met Appellant when she was around ten.
That meant Jane Doe had visited with Appellant for years before she did so
with Katrina P.; Katrina P. had no direct knowledge regarding Jane Doe’s
allegations of abuse when Jane Doe was younger. That encompasses all the
allegations of abuse, except for the allegations of hide and seek in the dark
with Katrina P. and the incident where Jane Doe alleged Appellant touched
her vagina with his mouth (when Katrina P. was not present). Also, although
Katrina P. denied any inappropriate touching during the hide and seek
games, because it was dark, it appears she lacked any direct knowledge of
how Appellant touched Jane Doe during those games.
Finally, Appellant ignores that Jane Doe’s account was strongly
corroborated by the photographs found in Appellant’s RV and by Jane Doe 3’s
testimony describing very similar sexual abuse—especially the game both
Jane Doe and Jane Doe 3 described with a vibrating toothbrush and/or

11 Because any misconduct did not “comprise[ ] a pattern of conduct ‘so
egregious that it infect[ed] the trial with such unfairness as to make the
conviction a denial of due process,’ ” any prejudice is analyzed under the state
standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Espinoza (1992)
3 Cal.4th 806, 820–821.)

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massager. The prosecutor emphasized that powerful corroborating evidence,
and not the CSAAS evidence, in the closing portion of his rebuttal. Appellant
has not shown there is a reasonable probability he was prejudiced by any
prosecutorial misconduct.12
IV. Appellant is Not Entitled to Remand Under Senate Bill No. 567
Appellant contends this case must be remanded for resentencing
because a change in law subsequent to his sentencing hearing has rendered
his upper term sentence unlawful. At the time Appellant was sentenced,
“section 1170, subdivision (b), gave the trial courts broad discretion to decide
which of the three terms specified for an offense would best serve the
interests of justice. (See § 1170, subd. (b), as amended by Stats. 2020, ch. 29,
§ 14.) Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg.
Sess.)…, amended section 1170, subdivision (b), in a number of respects, one
of which was to make the middle term of imprisonment the presumptive
sentence. (See § 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.)
Under the amended statute, ‘When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court shall, in its
sound discretion, order imposition of a sentence not to exceed the middle
term, except as otherwise provided in paragraph (2).’ (§ 1170, subd. (b)(1).)”
(People v. Wandrey (2022) 80 Cal.App.5th 962, 981, review granted Sept. 28,
2022, S275942 (Wandrey); see also People v. Flores (2022) 73 Cal.App.5th
1032, 1038 (Flores).) Under the amended version of section 1170, subdivision
(b)(2), a trial court may impose the upper term only if “there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying

12Appellant argues for reversal under the cumulative error doctrine,
but we have not found multiple errors to be considered cumulatively.

21
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial . . . .”
Appellant contends he is entitled to resentencing under Senate Bill
No. 567 (2021–2022 Reg. Sess.) because “[w]hen the [trial] court sentenced
[A]ppellant, it imposed upper terms based on aggravating factors that had
not been found true beyond a reasonable doubt at trial or admitted by
[A]ppellant.” Respondent properly concedes the amended version of section
1170, subdivision (b) “applies retroactively in this case as an ameliorative
change in the law applicable to all nonfinal convictions on appeal.” (Flores,
supra, 73 Cal.App.5th at p. 1039.) However, respondent argues, “Any error
in failing to obtain true findings by the jury or admissions by [A]ppellant was
harmless beyond a reasonable doubt, since the jury would have
unquestionably found the factors true had they been submitted to it.”
“Error in relying on facts not found by the jury to impose an aggravated
term is subject to review under the harmless error standard of Chapman v.
California (1967) 386 U.S. 18.” (Wandrey, supra, 80 Cal.App.5th at p. 981.)
“ ‘[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury,
applying the beyond-a-reasonable-doubt standard, unquestionably would
have found true at least a single aggravating circumstance had it been
submitted to the jury, the Sixth Amendment error properly may be found
harmless.’ ” (Wandrey, at p. 982.)
In the present case, at sentencing the trial court relied on four
aggravating factors in imposing the upper term for the lewd act charged in
count one: (1) Jane Doe was “particularly vulnerable;” (2) “the manner in
which the crimes were carried out suggests planning over a long period of
time;” (3) Appellant abused “a position of trust and confidence;” and (4)

22
Appellant “use[d] obscene material to encourage Jane Doe to engage in…
behavior.”13 Although the jury did not find those circumstances true beyond
a reasonable doubt, Appellant fails to explain how the jury could have failed
to do so had they been asked to do so. As respondent argues, the jury
“ ‘unquestionably’ ” (Wandrey, supra, 80 Cal.App.5th at p. 982) would have
found all of those circumstances true beyond a reasonable doubt. In
particular, given the corroborating physical and testimonial evidence and the
jury’s acceptance of Jane Doe’s account, there is no doubt the jury would have
found that Jane Doe was particularly vulnerable, that Appellant engaged in
extensive planning, that Appellant abused a position of trust, and that
Appellant used obscene material to groom Jane Doe. There is no basis to
remand for resentencing. (Id. at p. 981.)14

13Appellant asserts the trial court relied on a finding of Appellant’s
callousness as an aggravating circumstance. But, although the trial court did
say Appellant’s acts showed callousness, it expressly declined to rely on the
relevant aggravating factor—that “[t]he crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court,
Rule 4.421(a)(1).)
14 Because it is clear the jury would have found true all of the
aggravating factors upon which the trial court relied, there is no need to
consider if it is reasonably probable the trial court would have exercised its
discretion to select the upper term if it “recognized that it could permissibly
rely on only a single one of the aggravating factors, a few of the aggravating
factors, or none of the aggravating factors, rather than all of the factors on
which it previously relied.” (People v. Lopez (2022) 78 Cal.App.5th 459, 467,
fn. 11; see also People v. Zabelle (2022) 80 Cal.App.5th 1098, 1113; People v.
Dunn (2022) 81 Cal.App.5th 394, 408–410, review granted Oct. 12, 2022,
S275655.)

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V. Appellant is Not Entitled to Remand Under Assembly Bill No. 518
Following Appellant’s sentencing, effective January 1, 2022, section 654
was amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.). (People v.
Mani (2022) 74 Cal.App.5th 343, 379 (Mani).) “Previously, where . . .
section 654 applied, the sentencing court was required to impose the sentence
that ‘provides for the longest potential term of imprisonment’ and stay
execution of the other term. (. . .§ 654, former subd. (a).) As amended by
Assembly Bill 518, . . . section 654 now provides the trial court with
discretion to impose and execute the sentence of either term, which could
result in the trial court imposing and executing the shorter sentence rather
than the longer sentence.” (Mani, at p. 379.)
At issue in the present appeal is the trial court’s application of
section 654 to counts six and seven. The court imposed a 15-years-to-life
sentence on count six, sexual penetration with a child aged 10 years or
younger (§ 288.7, subd. (b)), and stayed a two-year sentence (one-third the
middle term of six years) on count seven, committing a lewd or lascivious act
upon a child under the age of 14 years (§ 288, subd. (a)). Appellant contends
this case must be remanded to allow the trial court an opportunity to exercise
its newly granted discretion whether to impose the sentence under count six
or count seven. The parties agree Assembly Bill No. 518 (2021-2022 Reg.
Sess.) is retroactive. (Mani, supra, 74 Cal.App.5th at pp. 379–380.)
However, respondent argues section 1203.065, subdivision (a) prohibits the
trial court from staying the execution of sentence for count six.
Section 1203.065, subdivision (a) provides, in pertinent part,
“Notwithstanding any other law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for, a person who is
convicted of violating . . . Section 288.7 . . . .” Respondent cites People v.

24
Caparaz (2022) 80 Cal.App.5th 669 (Caparaz), at page 689, for the
proposition that “a stay is type of suspension; thus, a prohibition against
suspending a sentence necessarily prohibits the stay of a sentence.”
Respondent then argues, “What section 1203.065, subdivision (a) means is: A
trial court is prohibited from staying the execution of sentence for a violation
of section 288.7 (count 6 here) notwithstanding any other law, including
section 654.”
We agree. The decision in Caparaz, supra, 80 Cal.App.5th 669, is
directly analogous. There, the Attorney General argued that remand for
resentencing under Assembly Bill No. 518 was unnecessary because the
superior court was without discretion to stay punishment mandated by the
One Strike law, which applied to the count for which the sentence was not
stayed. (Caparaz, at p. 688.) The Attorney General relied on section 667.61,
subdivision (h) of the One Strike law, which provides, “Notwithstanding any
other law, probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, a person who is subject to
punishment under this section.” (Caparaz, at p. 689.) The court of appeal
stated, “When a defendant is convicted of two offenses for which section 654
prohibits multiple punishment (as is the case here), the trial court imposes
sentence for one of them, and then imposes and stays the sentence for the
other offense. [Citation.] A stay is a type of suspension. [Citation.] The
Attorney General argues section 667.61[, subdivision] (h) means a trial court
is prohibited from suspending or staying the imposition of a One Strike law
sentence notwithstanding any other law, including section 654.” (Caparaz, at
p. 689.) The court of appeal agreed, concluding it was unnecessary to remand
because the trial court had “no discretion to suspend or stay the One Strike

25
law sentence . . . in favor of the shorter non-One Strike law sentence . . .
notwithstanding the amendment to section 654.” (Caparaz, at p. 690.)
The operative language in section 667.61, subdivision (h), at issue in
Caparaz, is identical to that in section 1203.065, subdivision (a), at issue in
the present case. Accordingly, employing the same reasoning as in Caparaz,
it is unnecessary to remand for resentencing because the trial court would
have no discretion to stay the sentence on count six. In response, Appellant
does not dispute that the statute at issue in Caparaz is directly analogous to
that at issue in the present case. Instead, Appellant argues the Caparaz
court erred because a 1986 decision cited therein for the meaning of “stay,”
People v. Santana (1986) 182 Cal.App.3d 185, concluded the “stay” of an
enhancement had the “functional effect” of striking the enhancement.
Santana is inapposite; the issue in that case was whether to treat the trial
court’s order purporting to “stay” the enhancement as an order “striking” the
enhancement for purposes of appellate review. (Santana, at pp. 190–192.)
We reject Appellant’s argument that a stay under section 654 is equivalent to
striking the count—the stayed count can be “resurrected” (Santana, at p. 191)
if, for any reason, the unstayed sentence is reversed or vacated. (People v.
Alford (2010) 180 Cal.App.4th 1463, 1469.) In any event, a stay of the
sentence on count six under section 654 is prohibited by the plain language of
section 1203.065, subdivision (a), regardless of whether a court might
conclude the stay is functionally equivalent to striking the count.
It is unnecessary to remand for resentencing because the trial court is
without authority to stay the sentence on count six.15

15 We need not and do not address respondent’s additional contention
that remand would be futile because it is clear the trial court would not elect
to stay the sentence on count seven instead of the sentence on count six, if it
did have the authority to do so.

26
 DISPOSITION
The trial court’s judgment is affirmed.

SIMONS, Acting P.J.

We concur.

BURNS, J.

WISEMAN, J.*

(A160769)

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

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