People v. Noel CA3

Filed 10/21/22 P. v. Noel CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Modoc)
----

THE PEOPLE, C089559

Plaintiff and Respondent, (Super. Ct. No. F18084)

v.

ARTHUR JOSEPH NOEL,

Defendant and Appellant.

SUMMARY OF THE APPEAL
A jury found defendant Arthur Joseph Noel guilty of multiple sex offenses against
his daughter, R., over the course of two years, when she was between the ages of six and
seven. The jury found defendant guilty of one count of a lewd act upon a child (Pen.
Code, § 288, subd. (a); count one; unspecified statutory section citations that follow are
to the Penal Code), one count of sexual intercourse with child aged 10 or younger
(§ 288.7, subd. (a); count two), three counts of oral copulation with a child aged 10 or
younger (§ 288.7, subd. (b); counts three, four, and six), and one count of sodomy with a

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child aged 10 or younger (§ 288.7, subd. (a); count five). The jury also found defendant
guilty of making a criminal threat to R. (§ 422, subd. (a); count seven). The trial court
sentenced defendant to an aggregate determinate term of eight years eight months for
counts one and seven, which included an eight-year upper term on count one. The trial
court also sentenced defendant to an aggregate indeterminate term of 95 years to life in
prison for counts two through six. Defendant timely appealed.
On appeal, defendant argues the trial court violated his rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution in three ways. First, he argues that the
trial court erred in admitting expert witness testimony regarding child sexual abuse
accommodation syndrome (CSAAS), which he characterizes as “junk science” that has a
higher prejudicial than probative value. Second, he argues that CSAAS evidence was not
a proper subject for expert opinion under Evidence Code section 801. Third, defendant
argues the trial court violated his constitutional rights by instructing the jury with
CALCRIM No. 1193, the standard jury instruction regarding the use of CSAAS
evidence.
After the trial court entered its judgment and while this appeal was still pending,
the Legislature amended sections 1170 and 1170.1. Defendant submitted a supplemental
opening brief in which he argues the amended section 1170 limits a trial court’s
discretion to impose an upper term sentence, that the amended statutes apply to the
sentence imposed on him under count one, and that we should vacate the trial court’s
sentence on count one and remand the matter to allow the trial court to apply the
amended law in issuing a new sentence on count one. The People agree that defendant is
entitled to be sentenced under the amended statute and that remand is required.
We remand for resentencing and otherwise affirm the judgment.

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 FACTS AND HISTORY OF THE PROCEEDINGS

The People’s Case

The following is a summary of testimony and evidence presented by the People,
with the exception of the testimony of the CSAAS expert, Dr. Blake Carmichael.
Because the admission of CSAAS evidence is central to issues defendant raised on
appeal, we will set forth a summary of Dr. Carmichael’s testimony in a separate section
that also outlines the parties’ motions and the trial court’s rulings regarding that
testimony.

Report and Investigation

Angelena Meier is a speech language pathologist intern who provides speech
therapy to R. On February 6, 2018, when R. was seven years old, Meier made a report of
suspected child abuse of R. She made the report after R. came in for therapy and was
acting in a strange way. R. said defendant was going to kill her mother, K., which would
mean R. would have to live with defendant, which R. said would be a really bad thing.
During their conversation, R. also told Meier defendant frequently would force K. to
orally copulate him, and R. provided details about how one would suck a man’s penis
which Meier saw as a red flag.
Luke Hughes, a social worker for the Modoc County Department of Social
Services received the report. He spoke with R. and R. told Hughes defendant had
threatened to kill her mother and their dog, and that defendant had thrown the dog.
During the interview, R. told Hughes that defendant had touched her “P” and caused a
bruise. Pursuant to department protocol, Hughes stopped the interview to allow for the
department’s sexual response team protocol to be followed, which requires a forensic
interview with the child.
Erica Tassone, a social worker for the Modoc County Department of Social
Services, who was qualified as an expert in child forensic interviews at trial, conducted

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the forensic interview with R. over the course of two days, beginning on February 7,
2018. The interviews were recorded and played for the jury, and the jury was given a
transcript of the interviews.
During the first day of interviews, R. described defendant touching her “pee”
when she was six, seven, and five. R. said defendant had touched her pee more than
once. R. said defendant had touched her pee while rubbing his own penis. R. said once
when they were “sleeping,” defendant put his penis in her butt. R. also described
defendant putting his penis in her pee.
R. said at some point she told her mom her dad touched her. R. said the first time
her dad touched her pee was November 26 when she was six. R. said defendant kicked
her in the pee. He then made her hump and kiss him. R. said defendant touched her with
his penis and he touched her pee with his hand. R. described defendant putting his penis
in her mouth. R. said she once told K. defendant touched her pee, but K. did not
understand. R. said another time she told K., and K. said it was okay, she was there, and
defendant would not touch R. again. R. said her mom walked in when her dad put his
penis in her mouth. R. said one time her mom called 911 and her dad got arrested.
During the second day of the interviews, at first R. said K. did not know anything
about the abuse except that R. got a bruise on her pee at one point, but then R. said she
told K. that defendant had touched her pee. R. told the story again of when K. walked in
when defendant had his penis in R.’s mouth, and then K. called the cops. R. said when
the cops arrived, defendant was crying and called K. evil. R. said her dad humped her
when she was six and K. did not know.
Tassone had R. draw pictures depicting the abuse. R. drew a picture of her and
defendant lying in bed with defendant’s penis going in her mouth and K. walking in. She
said K. then called 911. In a second drawing, defendant put his penis in R.’s butt.
R. said that afterwards she went to her grandmother’s house and called 911. R. said her
butt felt bad the next time she tried to go to the bathroom.

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 R. said she had K. look at her butt, and K. said something about defendant putting
his penis in R.’s butt. R. then talked about defendant putting his penis in her pee and K.
calling 911. When Tassone asked R. about defendant putting his penis in her pee, R.
responded that she had been lying down and defendant was kissing and licking her pee
while she tried to get away. Defendant then put his penis in her pee and moved up and
down.
R. said that when she had the bruise on her pee, she told K. it was probably from
defendant. R. said her mom then called 911 like she always does.
R. said her dad told her if she told anyone about him touching her pee, he would
kill her mother.

K.’s Testimony

Defendant and K. married in the spring of 2010. R. was born that fall. K. and
defendant divorced in 2015. From November 2016 through October 2017, K. and R.
would sometimes stay with defendant. According to an agreement reached between
defendant and K. in September 2017, defendant was supposed to have visitations with R.
one weekday and one weekend day each week.
K. described a few instances where defendant’s interactions with R. might have
been suspicious.
K. recalled a time in June 2017 when she left R. with defendant at his place.
When K. returned, she heard what sounded like R. making muffled cries. She found
defendant and R. in his bedroom. R. was lying on her back on the bed with her feet in the
air, and defendant was standing at the end of the bed, holding R.’s feet in his hands. R.
was wearing just a t-shirt and defendant was wearing boxer shorts. Defendant shut the
door, but K. pushed it back open, grabbed R. and left.
Another time in late June 2017, R. was staying the night with defendant. K. found
defendant and R. naked in bed together.

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 K. recalled another time when defendant and R. were watching a movie together,
and R. was wearing a t-shirt and underwear and sitting on defendant’s lap. Defendant
had his hand on R.’s thigh.
In December 2017, K. saw a bruise near R.’s clitoris that looked like a thumb
print. It was dark purple. K. took R. to the doctor, who looked at the bruise—which was
very light by the time the doctor examined it—and the doctor said everything was okay.
K. also recalled that at some point R. complained about her butt hurting when she went to
the bathroom.
K. testified that during the investigation, she told a deputy sheriff she had no
knowledge of any sexual abuse between defendant and R. K. testified that, at the time,
she believed it was true that there was no sexual abuse, because she did not think
defendant was capable of doing that sort of thing to R. K. also admitted while testifying
that when a social worker asked K. about the incidents, she told the social worker she had
not been more forthcoming because she was afraid defendant would kill her.
K. testified that when R. was supposed to go stay with defendant, R. would
complain about it. R. would say defendant made her uncomfortable and was mean—that
he yelled a lot and threw things. R. would complain about having to sleep in the same
bed as defendant. Because R. complained, K. asked defendant to stay on her couch
instead, and he started doing that in about December 2017.
K. testified that R. did not tell K. about the sexual abuse.

R.’s Testimony

R. testified from a remote location using closed circuit TV. She testified
defendant was in jail because he had sex with her. R. said defendant put his private parts
inside her private parts, including her “pee.” She said that happened more than one time.
The first time it happened she was five or six and at defendant’s home. She was lying

6
down on the bed in her mom’s room. She was lying under him and he was going up and
down.
She testified about another time when he humped her on the couch when he had
his clothes on, and her pants were pulled down but her underwear stayed on. She
testified that when she was seven and in her room at K.’s apartment defendant put his
penis in her butt. R. testified defendant put his penis in her butt one other time, on a
different day, while her mom was at the store. R. denied her father ever did anything else
with her privates or making her touch any part of his body with her mouth. R. recalled
speaking with Tassone and drawing pictures. R. acknowledged that in one drawing
defendant put his penis in her mouth. R. said defendant made her lick his penis while in
the living room at his trailer. In another picture, R. drew defendant putting his penis in
her butt. In a third, she drew his penis going in her pee. Defendant told her not to tell
anyone about him putting his penis in her pee. She thinks she was seven the last time
defendant touched her pee. She said she was maybe three or four when her father started
putting his penis in her butt. She testified she drew pictures of things that actually
happened.
R. testified that the bruise she had on her pee happened after a cousin kicked her
and after defendant pushed too hard when he put his penis in her pee.

Defense Case

The defense called Deputy Sherriff Eric VonRader, who testified that during the
course of his investigation he checked department records to see if there were any
complaints—e.g., records of 911 calls—prior to February 6, 2018, about defendant’s
behavior with R., and he found none.
Defendant also called various friends and acquaintances to attest to his character
and to describe his relationship with R. and K.

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 Paul R. testified he has known defendant since 2008. Defendant has performed
odd jobs for him, from construction to auto work. Paul R. testified he and his fiancée
have also socialized with defendant, K., and R. together. He said all the interactions he
has seen between defendant and R.—of which he estimates there have been about 10—
were normal with nothing out of the ordinary. He has seen R. hug defendant and jump in
his arms, calling him “Daddy.” He has seen defendant and R. play and joke around
together. Paul R. testified that R. never seemed reluctant to be around defendant. He
testified R. never seemed afraid of defendant or talked about him doing bad things to her.
He said he would trust defendant with his own children.
Paul R. testified about a time he and his fiancée saw R. in a parking lot, and he
asked how she was doing. R. started telling them “Daddy does this” and making
gestures, and saying things that were “very abnormal.” Paul R. characterized R.’s
statements as “odd,” “out of the blue,” and “blunt . . . for no reason.” Paul R. testified the
incident did not cause him to think defendant was the sort of person who could molest his
daughter and actually had “the opposite” effect, because “it wasn’t right. It wasn’t
normal. It wasn’t normal.”
On cross-examination, when asked how he would know what was normal behavior
for a seven-year-old child who has been molested by her father, Paul R. responded, “I
have two children of my own. I’d have an inkling.”
Robert T. testified he has known defendant since 2009. Defendant has done odd
jobs around the house for him, and he considers defendant a friend. He has socialized
with defendant, K., and R. together. Defendant and R. have spent the night together at
his place. His wife, Kathleen T., would also socialize with him, defendant, K., and R.
Robert T. testified that defendant is a good guy. He testified that defendant and R.
would interact the way you would expect a father and daughter to interact. They would
color together and play like a father and daughter. R. would run and jump on defendant’s

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lap and he would tickle her. He testified that R. never was afraid of or reluctant to be
around defendant, and R. never told Robert that defendant did something bad to her.
Kathleen T. also testified for the defense. She also met defendant in 2009. She
would see him several times a month and sometimes he would bring R. with him. She
has seen defendant and R. interact many times over the years. She testified that R. would
interact with defendant like a typical child with her dad. R. would be happy to be with
defendant, would crawl on defendant and hug him, and R. would take defendant’s hand
while asking him to go with her to see Kathleen’s horses. R. would color and show
defendant, and defendant would comment on it.
Kathleen testified that R. never seemed afraid of defendant or reluctant to be
around him. Before defendant went to jail, R. never said anything to Kathleen that would
make Kathleen feel concerned about R.’s safety or welfare. Before defendant went to
jail, R. never said anything about defendant doing something bad to her. Kathleen
believes she and R. had a close enough relationship that R. would have told Kathleen if
defendant was doing something bad to R.
Kathleen testified that after defendant was put in jail K. and R. went to visit
Kathleen. K. told Kathleen that R. wanted to speak with her. When Kathleen and R.
were alone, R. told Kathleen things Kathleen did not believe. R. said defendant had
taken her to a shed and tied her up. R. told Kathleen defendant had told R. that grownups
like to be with little kids. Kathleen told R. she did not believe her. Kathleen thought
someone had told R. what to say, because she was speaking like an adult instead of a
child—e.g., the nature of the allegations R. was making were sexual, but she did not use
age appropriate language like “pee-pee” and “private spot” to the describe the acts.
When asked by defense counsel, Kathleen testified R. was not crying, having trouble
speaking, breathing fast, gasping for breath, or acting in an abnormal way physically
when she spoke; but, R. was being a little quiet and sheepish.

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 Isabel D. has known defendant for over 25 years. She also knows K. She
described defendant as a “dumbass” with a “horrible temper,” who would sometimes get
violent. Still, she trusted defendant with her own sons and would sometimes leave them
alone with him. She knows R. too. Based on what she knows about defendant, she does
not think he would commit the crimes that were alleged in this case. She would believe it
if someone said he had been violent towards R., but not that he would have done
something sexual.
Isabel D. testified that K. hates defendant and would destroy him anyway she
could. K. got very angry with defendant when he killed one of their dogs, and she is
angry that defendant is bisexual. She described K. as a spiteful person. Given what
Isabel D. knows about K.’s character, Isabel D. believes she would falsify allegations
about defendant sexually abusing their daughter. She believes K. would coach or prompt
R. to make an allegation.

CSAAS Testimony

Prior to trial, the People brought a motion in limine to include expert testimony on
CSAAS. In his motions in limine, defendant sought to exclude expert CSAAS testimony
under Evidence Code section 352, or to at least limit the use of CSAAS testimony to the
People’s rebuttal. At the hearing on the motions in limine, the trial court said it would
allow testimony on CSAAS theory, but stated the expert could not opine as to whether
abuse occurred in this case.
During trial, the People called Dr. Blake Carmichael. Due to scheduling issues, he
testified after VonRader, Paul R., and Robert and Kathleen T., but as part of the People’s
case in chief.
Dr. Carmichael is a clinical psychologist who works at the Child and Adolescent
Abuse Resource and Evaluation, Diagnostic and Treatment Center at the University of
California at Davis Children’s Hospital. He has directly treated 100 to 110 children who

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have been sexually abused and has supervised another 200 or 300 sexual abuse cases. As
a result of his work, he has become familiar with the concept of CSAAS. He knew
nothing about the facts of this case when he testified. The trial court found him qualified
as an expert in CSAAS.
Dr. Carmichael described the origins of CSAAS theory. It was developed in an
article published in 1983 by Roland Summit in order to educate people about children
who have been sexually abused. Dr. Carmichael testified that in 1983, and still today,
there were a number of myths and misconceptions about children who had been sexually
abused, which caused people to have expectations about the things a child molestation
victim should or should not do.
But, he testified, kids who have been sexually abused will act in a variety of ways,
and there is no one way to tell if they have been abused. One myth he noted is that
people seem to think kids should say “no” or run and tell someone, or bite, kick, or
scream to ward off their abusers, but the “vast majority of kids just can’t tell quickly,”
and victims may take years to talk about the abuse.
Another myth is that when a child is abused, people should be able to tell because
of a change in the child’s behavior. Another myth is that there are certain personality
profiles for abusers and abuse victims. Yet another myth is that abusers are typically
strangers. He testified that children who have been abused do not automatically or
uniformly appear disturbed; they have other things going on in their life and may even
enjoy spending time with their perpetrator in a way that makes everything seem normal.
When asked if a child might say someone called 911 when, in fact, no one had,
Dr. Carmichael said that might happen when a victim wishes they or someone else had
done something to stop the abuse. Children might love their perpetrators and feel guilty
once they tell on them because that person will get in trouble.
Dr. Carmichael described CSAAS as having five components. The first three are
secrecy, helplessness, entrapment or accommodation—which he thinks of more as coping

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with how to deal with the abuse. The fourth component is making delayed,
unconvincing, and conflicting disclosures. The fifth is recanting or retracting.
Secrecy involves the perpetrator establishing and maintaining secrecy. This can
involve grooming a victim so the abuse becomes a normal part of the relationship, or
threatening to do something bad if the victim discloses the abuse—including possible
threats to kill the child’s mom or dog—causing the child to become fearful of the
consequences if he or she tells someone about the abuse.
Helplessness involves a bigger, stronger, and more sophisticated perpetrator
abusing a vulnerable child victim. This contributes to it being unlikely that you will see a
victim kick, bite, or scream to ward off their perpetrator.
Entrapment and accommodation factors into how children cope with the abuse.
Children will do ineffective things to avoid the perpetrator. They will also disassociate
during the acts of abuse. This makes it harder for them to recall some of the details of the
abuse. Children might not show outward displays of anger or sadness when discussing
the abuse.
The delayed disclosure component refers to the fact that most victims do not
disclose within a week or two, many do not tell within a year, and many will not tell
before they turn 18. Additionally, children will often be inconsistent in the way they talk
about the abuse. It is also not atypical for victims to make incremental disclosures and
not divulge everything all at once. He observed that dates will often blend together and
overlap, and kids are not always good at remembering dates and sequences in general.
With retraction, a minority of victims will decide talking about abuse did not help
them, and they don’t want to deal with the consequences of telling; so, they will not talk
about it anymore.
Dr. Carmichael testified that not all five CSAAS components will always be
present in a child sexual abuse victim. The factors exist as a framework to understand
why something happens in a way you would not expect. It is not a checklist.

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 The bottom line is not all victims will react the same way.

Sentencing on Count One

At the sentencing hearing, in imposing an upper term sentence of eight years for
count one, the trial court stated, “the real issue is whether or not the mitigated, middle, or
upper term should be imposed for that.” The trial court then considered aggravating and
mitigating factors identified in California Rules of Court, rules 4.421 and 4.423.
The factors in aggravation the trial court identified included that the crime was one
of great violence and seriousness (Cal. Rules of Court, rule 4.421(a)(1)), threats made to
the victim (Cal. Rules of Court, rule 4.421(a)(6)), the particular vulnerability of the
victim (Cal. Rules of Court, rule 4.421(a)(3)), that the commission of the crimes involved
defendant violating a position of trust (Cal. Rules of Court, rule 4.421(a)(11)), the serious
and increasing nature of defendant’s conduct (Cal. Rules of Court, rule 4.421(b)(1)), and
that defendant was on probation at the time the crimes occurred (Cal. Rules of Court, rule
4.421(b)(4)). The trial court did not identify any mitigating factors on the record, and
stated “even something akin to remorse that I could consider as a mitigating factor seems
to be absent here.”
The trial court then concluded, based on its consideration of aggravating factors
and potential mitigating factors, “in terms of me exercising my discretion between
aggravated or mitigated terms, the aggravating factors, in my opinion, far outweigh what,
if any, mitigating factors there are. [¶] And so for [c]ount [one], a violation of [section]
288[, subdivision ](a), it is the judgment and sentence of this court that the upper term of
eight years be imposed in the Department of Corrections.”

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 DISCUSSION

I

The CSAAS Evidence Was Properly Admitted

Defendant makes two arguments that the trial court violated his Sixth and
Fourteenth Amendment Rights when it admitted CSAAS testimony.
The first argument is that CSAAS evidence is not sufficiently reliable to be
admissible under the Kelly rule as established in People v. Kelly (1976) 17 Cal.3d 24
(Kelly).
This rule was formerly known as the Kelly-Frye rule, based on the rulings of
Kelly, supra, 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye),
but is now known as the Kelly rule in California after changes to the Federal Rules of
Evidence that superseded Frye. (People v. Lapenias (2021) 67 Cal.App.5th 162, 173,
fn. 2 (Lapenias); People v. Nieves (2021) 11 Cal.5th 404, 442, fn. 8; People v. Bolden
(2002) 29 Cal.4th 515, 545.)
Defendant argues existing jurisprudence allowing the admission of CSAAS
evidence to help counter misconceptions jurors may have about how a child victim of
sexual molestation should react must be reconsidered and abandoned. His second
argument is that this jury specifically did not have—and jurors in general should no
longer have—misconceptions about how victims of childhood sexual abuse should be
expected to respond which must be corrected with CSAAS expert testimony.
Thus, defendant reasons, the CSAAS expert testimony admitted in this action was
not a proper subject for expert testimony under Evidence Code section 801. We disagree
with both arguments.

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 A. California Jurisprudence Regarding the Admissibility of Syndrome and
CSAAS Evidence

In order to best contextualize defendant’s arguments regarding whether CSAAS
evidence should be admissible either in general or on this record, it is useful to briefly
examine the history of California jurisprudence on the use of CSAAS and similar
syndrome evidence.
In People v. Bledsoe (1984) 36 Cal.3d 236, 238 (Bledsoe), our Supreme Court
considered when expert testimony on rape trauma syndrome might be admissible in a
rape prosecution. In Bledsoe, at trial, “the prosecution introduced the rape trauma
syndrome testimony, not to rebut misconceptions about the presumed behavior of rape
victims, but rather as a means of proving—from the alleged victim’s post-incident
trauma—that a rape in the legal sense had, in fact, occurred.” (Id. at p. 248.) The
defendant argued that rape trauma syndrome evidence did not satisfy the test for
admissibility of new scientific methods of proof as articulated in Frye, supra, 293 F. at
page 1014, and applied in California courts pursuant to Kelly, supra, 17 Cal.3d at
pages 30-32, which articulates a framework for determining the reliability of new
scientific techniques offered during expert testimony. The Court observed, “[i]n a
number of the cases in which the issue has arisen, the alleged rapist has suggested to the
jury that some conduct of the victim after the incident—for example, a delay in reporting
the sexual assault—is inconsistent with her claim of having been raped, and evidence on
rape trauma syndrome has been introduced to rebut such an inference by providing the
jury with recent findings of professional research on the subject of a victim’s reaction to
sexual assault.” (Bledsoe, supra, 36 Cal.3d at p. 247.)
The Court also considered the purpose for which rape trauma syndrome theory
was developed as compared to scientific methods typically “evaluated against the Frye
standard of reliability.” (Bledsoe, supra, 36 Cal.3d at p. 249.) The Court noted that,
“[u]nlike fingerprints, blood tests, lie detector tests, voiceprints or the battered child

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syndrome, rape trauma syndrome was not devised to determine the ‘truth’ or ‘accuracy’
of a particular past event—i.e., whether, in fact, a rape in the legal sense occurred—but
rather was developed by professional rape counselors as a therapeutic tool, to help
identify, predict and treat emotional problems experienced by the counselors’ clients or
patients. As the professional literature makes clear—and as the expert testimony in this
case also reveals—because in the past women who have brought charges of rape have
traditionally had their credibility or motives questioned by the police and others, rape
counselors are taught to make a conscious effort to avoid judging the credibility of their
clients.” (Id. at pp. 249-250.)
The Court concluded, “[g]iven the history, purpose and nature of the rape trauma
syndrome concept, we conclude that expert testimony that a complaining witness suffers
from rape trauma syndrome is not admissible to prove that the witness was raped.”
(Bledsoe, supra, 36 Cal.3d at p. 251.)
After the Court issued its decision in Bledsoe, our courts of appeal considered its
application to CSAAS evidence. In People v. Roscoe (1985) 168 Cal.App.3d 1093,
1099-1101, the Fifth District Court of Appeal applied the Bledsoe analysis to find that
while expert testimony on the behavior of child molestation victims would be admissible
for rebuttal purposes, “such as . . . testimony based on general literature or experience as
to the reluctance of molest victims, as a class, to talk to investigators” (Roscoe, at
pp. 1100-1101), testimony diagnosing a specific alleged victim as a molestation victim
would not be admissible, because that diagnosis would imply that the molestation
actually occurred.
In People v. Gray (1986) 187 Cal.App.3d 213, 215, 218 the appellant contended
that the trial court erred when it did not apply the Kelly test and allowed the admission of
CSAAS evidence. The Second District Court of Appeal disagreed, reasoning that the
evidence was neither introduced to nor purported to prove that the molestation had
occurred. (Gray, at p. 219.) Rather, it was used as rebuttal evidence that described the

16
reluctance of molestation victims as a class to speak with investigators. (Ibid.) The court
explained that while it makes sense that Bledsoe subjected rape trauma syndrome
evidence to the Kelly test when offered to prove that an alleged rape had, in fact occurred ,
the same could not be said of CSAAS evidence that is being offered to explain the
reluctance of molestation victims as a class to talk to investigators when used in rebuttal.
(Gray, at p. 219.)
In People v. Bowker (1988) 203 Cal.App.3d 385, 391 (Bowker), the Fourth
District Court of Appeal noted that in Bledsoe, the Supreme Court applied the Kelly rule
to exclude expert testimony that the complaining witness was suffering from rape trauma
syndrome—i.e., expert testimony that the complaining witnesses behavior was the result
of being raped. The appellate court also noted that the Court “in Bledsoe suggested that
even though rape trauma syndrome failed the Kelly-Frye test, evidence related to the
syndrome could be admissible to ‘[disabuse] the jury of some widely held
misconceptions about rape and rape victims, so that it may evaluate the evidence free of
the constraints of popular myths.’ ([Bledsoe, supra,] 36 Cal.3d at pp. 247-248.)”
(Bowker, at p. 391.) The Fourth District Court of Appeal then applied the Bledsoe rule—
and the “exception” it articulated—to find that CSAAS evidence is admissible only for
the purpose of showing that a victim’s reactions are not inconsistent with having been
molested. (Bowker, at pp. 393 & 394.)
Our Supreme Court first discussed the use of CSAAS evidence in a majority
opinion in People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin). In McAlpin, the court
considered the admissibility of expert testimony that “it is not unusual for a parent to
refrain from reporting a known molestation of his or her child.” (Id. at p. 1300.) In the
trial court, the prosecutor had sought to introduce the evidence to “rehabilitate the
corroborating testimony of” the victim’s mother. (Id. at p. 1301.) The Court concluded
that the proposed “evidence was clearly relevant [citation] because it tended to
rehabilitate the testimony of [the mother] as a corroborating witness. It follows that the

17
trial court did not abuse its discretion in admitting the challenged testimony.” (Id. at
p. 1302, fn. omitted.)
In reaching this holding, the court considered the accepted use of rape trauma
syndrome evidence (as articulated in Bledsoe) and CSAAS evidence (as articulated in
appellate court decisions applying Bledsoe) to rehabilitate the testimony of, respectively,
rape and child sexual abuse victims. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) In so
doing, the Court wrote, “[a]n even more direct analogy” than rape trauma syndrome to
evidence regarding the reactions of victims’ parents “may be drawn to expert testimony
on common stress reactions of children who have been sexually molested (‘child sexual
abuse accommodation syndrome’), which also may include the child’s failure to report,
or delay in reporting, the abuse. In a series of decisions the Courts of Appeal have
extended to this context both the rule and the exception of People v. Bledsoe, supra,
36 Cal.3d 236: i.e., expert testimony on the common reactions of child molestation
victims is not admissible to prove that the complaining witness has in fact been sexually
abused; it 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. (People v. Bowker[, supra]
203 Cal.App.3d [at pp.] 390-394; People v. Gray[, supra,] 187 Cal.App.3d [at pp.] 217-
220; People v. Roscoe[, supra,] 168 Cal.App.3d [at pp.] 1097-1100.) ‘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. [para.] The great majority of courts approve such expert
rebuttal testimony.’ (Myers et al., Expert Testimony in Child Sexual Abuse Litigation
(1989) 68 Neb. L.Rev. 1, 89, fn. omitted[].)” (McAlpin, supra, 53 Cal.3d at pp. 1300-
1301.)
Thus, in McAlpin, the Court signaled its approval of opinions by our courts of
appeal that would not allow the admission of CSAAS evidence to prove that the

18
complaining witness had, in fact, been sexually abused, but that would allow the
admission of CSAAS evidence to rehabilitate a complaining witness’s credibility when
there is a suggestion that the witness’s conduct after the incident is inconsistent with his
or her claim of abuse. (McAlpin, supra, 53 Cal.3d at p. 1300.)
In People v. Humphrey (1996) 13 Cal.4th 1073, 1088, and People v. Brown (2004)
33 Cal.4th 892, 896, 905-907, our Supreme Court relied, in part, on the aforementioned
analysis in McAlpin, to conclude that expert testimony about possible behavior of
domestic violence victims could be used to assist the trier of fact in evaluating the
victim’s credibility, by dispelling misconceptions about battered women and/or
explaining why trial testimony by an alleged domestic violence victim might be
inconsistent with what she previously told police.
Since the Court issued its decision in McAlpin, each of our state’s appellate court
districts has cited it as authority for the rule that CSAAS evidence is not admissible to
prove alleged sexual abuse occurred, but trial courts may admit CSAAS evidence to
disabuse jurors of misconceptions they might have about how a child reacts to
molestation. (See, e.g., People v. Wells (2004) 118 Cal.App.4th 179, 188 [1st
Dist.Ct.App.] (Wells); People v. Munch (2020) 52 Cal.App.5th 464, 468 [2d
Dist.Ct.App.] (Munch); People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002 [3d
Dist.Ct.App.]; Lapenias, supra, 67 Cal.App.5th at p. 171 [4th Dist.Ct.App.]; People v.
Patino (1994) 26 Cal.App.4th 1737, 1744 [5th Dist.Ct.App.] (Patino); People v. Perez
(2010) 182 Cal.App.4th 231, 245 [6th Dist.Ct.App.].) California courts now allow the
admission of CSAAS evidence not only in rebuttal cases, but also in “the prosecution’s
case-in-chief” when “an issue has been raised as to the victim’s credibility. [Citations.]”
(Patino, at p. 1745.)

19
 B. The Kelly Rule Does Not Bar the Admission of CSAAS Evidence

In his first argument, defendant takes the position that CSAAS testimony as used
here should be inadmissible under the Kelly rule because it is “junk science.”
Defendant’s argument is inconsistent with California jurisprudence on CSAAS evidence
and misapplies the Kelly rule.
The Kelly rule “conditions the admissibility of evidence based on a new scientific
method of proof on a showing that the technique has been generally accepted as reliable
in the scientific community in which it developed.” (People v. Shirley (1982) 31 Cal.3d
18, 34; see also Lapenias, supra, 67 Cal.App.5th at p. 173.) It applies “only to expert
testimony ‘based, in whole or part, on a technique, process, or theory which is new to
science and, even more so, the law.’ (People v. Stoll (1989) 49 Cal.3d 1136, 1156.)”
(Lapenias, supra, 67 Cal.App.5th at p. 173.) Additionally, the rule only applies if “the
unproven technique or procedure appears in both name and description to provide some
definitive truth which the expert need only accurately recognize and relay to the jury.
The most obvious examples are machines or procedures which analyze physical data.”
(Stoll, at p. 1156; see also Lapenias, supra, 67 Cal.App.5th at p. 173.) Under these
principles, as discussed above, CSAAS evidence is subject to exclusion under Kelly when
offered “ ‘to prove that a molestation actually occurred,’ ” which is not why it was
admitted here. (See Wells, supra, 118 Cal.App.4th at p. 188, quoting Patino, supra,
26 Cal.App.4th at p. 1744.)
“Here, the theory of CSAAS is not new” to science or the law. (Lapenias, supra,
67 Cal.App.5th at p. 173.) The CSAAS evidence appellant challenges “has been ruled to
be properly admitted by the courts of this state for decades.” (Munch, supra,
52 Cal.App.5th at p. 472; see also McAlpin, supra, 53 Cal.3d at pp. 1300-1301; Lapenias,
at p. 173; Bowker, supra, 203 Cal.App.3d at p. 389, fn. 3 [CSAAS dates back to at least

20
1983].) Plainly, CSAAS does not fall into the first category of evidence—new scientific
methods—to which Kelly applies.
Second, California courts have strictly limited admission of CSAAS evidence (and
analogous models such as battered person’s syndrome and rape trauma syndrome) to
disabusing a jury of commonly held misconceptions about how a child reacts to a
molestation, “ ‘and to explain the emotional antecedents of abused children’s seemingly
self-impeaching behavior.’ ” (McAlpin, supra, 53 Cal.3d at p. 1301; see also People v.
Humphrey, supra, 13 Cal.4th at p. 1088; Lapenias, supra, 67 Cal.App.5th at p. 171.)
Thus, while “expert testimony on the common reactions of child molestation victims is
not admissible to prove that the complaining witness has in fact been sexually abused[,] it
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.” (McAlpin, supra, 53 Cal.3d at p. 1300; see also
Munch, supra, 52 Cal.App.5th at pp. 466, 468; People v. Coffman and Marlow (2004)
34 Cal.4th 1, 82 [psychological expert may not testify about rape trauma syndrome in
order to prove that a rape actually occurred, but “such testimony is admissible to
rehabilitate the credibility of the complaining witness against a suggestion that her
behavior after the assault—such as a delay in reporting it—was inconsistent with her
claim of having been raped”]; Bledsoe, supra, 36 Cal.3d at pp. 247-248, 251.)
As limited by California courts, expert testimony based on CSAAS does not
purport to provide a definitive truth, but “is ‘based on [the expert’s] clinical experience
with child sexual abuse victims and on [his or] her familiarity with professional literature
in the area.’ ” (Munch, supra, 52 Cal.App.5th at p. 473, quoting People v. Harlan (1990)
222 Cal.App.3d 439, 449.) This testimony meets “traditional standards for competent
expert opinion, without need for additional screening procedures [under Kelly]” (People
v. Stoll, supra, 49 Cal.3d at p. 1161), and is therefore not subject to the Kelly rule

21
(Munch, at p. 473; Lapenias, supra, 67 Cal.App.5th at p. 173; Harlan, at p. 449 [“The
[Kelly] rule does not apply to [CSAAS] evidence”]).
Defendant makes four arguments in an effort to convince this court to part with
California jurisprudence that finds CSAAS testimony admissible for the purposes it was
used here. First, citing academic articles and decisions of other states and the federal
Second Circuit Court of Appeals, defendant argues that CSAAS testimony ought to be
more severely restricted or banned entirely because it “is not reliable enough to be used
in criminal prosecutions.” We decline defendant’s invitation to reconsider California
precedents based on decisions reached in other jurisdictions.
To begin with, in response to similar arguments, the Court of Appeal for the
Second District, in Munch, supra, 52 Cal.App.5th at pages 469-471, took a close look at
many of the citations defendant relies upon in his brief, and found that they either no
longer represent the prevailing law in the subject jurisdictions or are otherwise
unpersuasive. Indeed, Munch concluded that “the vast majority of jurisdictions and many
of the jurisdictions Munch highlights have rendered decisions that are consistent with
McAlpin.” (Id. at p. 472.) Also, authority from other states is not controlling. (People v.
Williams (1997) 16 Cal.4th 153, 195.)
The law is well-settled in California that CSAAS evidence is admissible for the
purposes for which it was admitted here. (McAlpin, supra, 53 Cal.3d at p. 1301; Wells,
supra, 118 Cal.App.4th at p. 188; People v. Gray, supra, 187 Cal.App.3d at pp. 218-220.)
We are bound by precedent from our Supreme Court. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455; see People v. Perez, supra, 182 Cal.App.4th
at p. 245 [reasoning of McAlpin, supra, 53 Cal.3d 1289 and People v. Brown, supra,
33 Cal.4th 892 regarding admissibility of CSAAS testimony binding on Courts of
Appeal].)
Second, defendant argues that even though California courts have allowed the
consideration of CSAAS to dispel misconceptions about victim reactions and reporting,

22
the California Supreme Court has never squarely found that CSAAS evidence is
admissible under the Kelly test in such cases. Instead, he argues, California courts have
consistently relied on “dictum” in two California Supreme Court decisions—McAlpin,
supra, 53 Cal.3d at pages 1300-1301 and People v. Brown, supra, 33 Cal.4th at
pages 906-907—to find CSAAS evidence admissible, and that we ought to consider the
evidence by applying the Kelly rule anew and then stop allowing the use of CSAAS
evidence.
But “[d]icta of our Supreme Court are highly persuasive.” (People v. Wade (1996)
48 Cal.App.4th 460, 467.) “When the Supreme Court has conducted a thorough analysis
of the issues and such analysis reflects compelling logic, its dictum should be followed.”
(Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.) As such, “ ‘we will not
reject dicta of the Supreme Court without a compelling reason.’ (Howard Jarvis
Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 925.)” (Benton v. Benton
(2019) 39 Cal.App.5th 212, 218.) We find no compelling reason here.
Third, defendant argues that this court and other courts of appeal have previously
applied the Kelly rule to bar the use of CSAAS evidence in dependency hearings,
suggesting the same reasoning should bar its use here. However, in two of the four
dependency cases defendant cites, CSAAS evidence was being offered to prove a child
had, in fact, been sexually abused. (See In re Sara M. (1987) 194 Cal.App.3d 585, 592;
Seering v. Dep’t of Social Services (1987) 194 Cal.App.3d 298, 306 [“The Seerings
contend that Dr. Corwin was improperly permitted to give his opinion that the Seerings
were the molesters and that he was improperly permitted to testify that in his opinion [the
victim] had been molested because he viewed her behavior as consistent with the ‘child
sexual abuse accommodation syndrome’ (CSAAS)”]). In the other two cases the
admissibility of CSAAS evidence under Kelly was not at issue at all (In re Amber B.
(1987) 191 Cal.App.3d 682, 690, fn. 3 [“This case, therefore, does not present the issue
whether the theory of child sexual abuse accommodation syndrome is subject to Kelly-

23
Frye”]; In re Christine C. (1987) 191 Cal.App.3d 676, 679, fn. 2 [“The expert witnesses
occasionally described behavior by Christine and Michael which appears similar to some
of the elements of ‘child sexual abuse accommodation syndrome’ [citation] but none of
the witnesses asserted this theory or described its elements”]).
Fourth, defendant claims that Bowker, supra, 203 Cal.App.3d 385 and cases
following it—which would include McAlpin, supra, 53 Cal.3d at page 1301—ignores that
in Bledsoe the Supreme Court recognized that “even when syndrome evidence is offered
for a limited purpose, it must still be generally accepted by the scientific community
under Kelly[].”
That is, defendant suggests that McAlpin’s findings regarding CSAAS evidence,
which courts in this state have relied on for many years now, are based on a decision
(Bowker) that in turn misread the Supreme Court’s Bledsoe findings regarding when
syndrome evidence is admissible and when the Kelly rule applies to keep it out. Bledsoe
does not require the Kelly test to be applied when determining if rape trauma syndrome
evidence is admissible to disabuse jurors of misconceptions they might have regarding
how rape victims should behave. Moreover, we are not inclined to conclude that our
Supreme Court hastily adopted findings of an appellate court without an understanding of
the nature and import of the reasoning the appellate court used to support those findings.

C. Admissibility Under Evidence Code Section 801

In his second argument, defendant says that, in light of increased awareness
surrounding sexual assault due to the #MeToo movement and statements made by
potential jurors during voir dire, CSAAS was not a proper subject for expert testimony
under Evidence Code sections 801 and 352.
This argument carries no weight.
“California law permits a person with ‘special knowledge, skill, experience,
training, or education’ in a particular field to qualify as an expert witness (Evid. Code,

24
§ 720), and to give testimony in the form of an opinion (Evid. Code, § 801).” (People v.
Ewing (2016) 244 Cal.App.4th 359, 381.) A testifying expert may “express an opinion
on ‘a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).) In addition to matters
within their own personal knowledge, experts may relate information acquired through
their training and experience, even though that information may have been derived from
conversations with others, lectures, study of learned treatises, etc.” (People v. Sanchez
(2016) 63 Cal.4th 665, 675.) “ ‘The trial court has broad discretion in deciding whether
to admit or exclude expert testimony [citation], and its decision as to whether expert
testimony meets the standard for admissibility is subject to review for abuse of
discretion.’ (People v. McDowell (2012) 54 Cal.4th 395, 426.)” (People v. Duong
(2020) 10 Cal.5th 36, 60; see also Ewing, at p. 381.) Similarly, Evidence Code
section 352 allows a trial court, “in its discretion” to exclude “evidence if its probative
value is substantially outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The trial court’s “exercise of discretion under Evidence Code section 352 will not be
disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence
clearly outweighs its probative value.” (People v. Karis (1988) 46 Cal.3d 612, 637.)
Defendant asks us to assume that, in light of the recent #MeToo movement and the
resulting media attention and press, jurors no longer possess misconceptions about why
child victims of sexual abuse might delay reporting abuse, recant stories of abuse,
minimize that abuse, stay in contact with their abusers, or tell inconsistent stories about
the abuse and, therefore, the use and probative value of expert CSAAS testimony is now
greatly diminished. We will not so assume.
As a preliminary matter, defendant cites no evidence or studies to support his
claim that #MeToo has had a meaningful impact on public understanding of the reactions
of victims of sexual abuse—whether adult victims or minor victims—such as to eliminate

25
misconceptions by jurors as to frequent reactions of those victims. Defendant offered no
evidence at trial, and offers no supporting studies here, that find that lay jurors have
somehow become aware enough of and have become sophisticated enough to know or
appreciate the often apparent inexplicable actions of children who have been sexually
abused, the #MeToo movement notwithstanding. In our view, child sexual abuse and the
reactions of its victims remains, fortunately, beyond the experience of many, if not most,
lay jurors.
Turning his attention away from current media trends and to the record in this
case, defendant argues that statements made by jurors (or their silence) during voir dire
demonstrate that in this specific case there was no evidence that the jurors retained the
sort of misconceptions CSAAS expert testimony is used to correct. He points to answers
in which jurors admitted that they themselves or people they were related to had been
victims of sexual abuse, to jurors not raising their hands when the prosecutor asked if
they would expect child abuse victims to report immediately or fight back, and to jurors
implying by their silence during defense counsel questioning that they would keep an
open mind when asked if they would expect an abuse victim to avoid her abuser.
But, to begin with, that jurors or their family members have suffered abuse does
not lead to a conclusion that those jurors understand the varying reactions to abuse which
CSAAS expert testimony can offer to explain. If anything, absent CSAAS testimony,
there is a risk that a juror might have decided R. was not credible because she did not
react to her abuse the same way the juror or their family member reacted to sexual abuse.
In addition, juror silence in response to group questioning hardly gives rise to a
certain conclusion that they have a full understanding about how a child victim will react
to sexual abuse. Defendant’s own witnesses testified they did not believe R. when she
told them she had been abused, demonstrating the value of allowing an expert to testify
about how people expect victims of sexual abuse to react and behave.

26
 D. Defendant’s Constitutional Rights Were Not Violated

“The admission of relevant evidence will not offend due process unless the
evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.”
(People v. Falsetta (1999) 21 Cal.4th 903, 913.) As indicated above, we find that
CSAAS evidence retains its value as a means of dispelling misconceptions about how
child victims of sexual abuse should react both in general and as they might have in this
case. It is well-settled that “introduction of CSAAS testimony does not by itself deny
appellant due process.” (Patino, supra, 26 Cal.App.4th at p. 1747.) Where, as here,
CSAAS evidence is used to explain behavior of a victim whose credibility has been
questioned—e.g., because she did not tell a trusted family friend about her abuse, because
she behaved normally around her father, or because she said her mother had called 911 to
protect her when her mother made no such calls—there is no due process violation. (See
id. at pp. 1744-1745, 1747; McAlpin, supra, 53 Cal.3d at pp. 1300-1302.) We therefore
reject defendant’s claim that admission of the CSAAS evidence violated his
constitutional rights.

II

Instruction Regarding CSAAS Testimony

Defendant argues that CALCRIM No. 1193 allows jurors to use CSAAS evidence
as substantive evidence of a defendant’s guilt. Defendant reasons that because the
instruction allows jurors to consider CSAAS evidence in evaluating the believability of
victim witnesses, it functionally contributes to a finding that the complaining witness’s
allegations of sexual abuse are true.
Defendant also argues that the instruction lowered the prosecution’s burden of
proof, depriving him of due process. In reply to the People’s argument that defendant
forfeited any argument he has regarding this instruction by not objecting to it below,
defendant argues that his substantial rights have been affected by the purported problems

27
with the instruction. Even assuming defendant did not forfeit his right to raise this issue
on appeal, his argument fails.
We apply a de novo standard of review to claims of jury instructional error.
(People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) “[T]he proper test for judging the
adequacy of instructions is to decide whether the jury was fully and fairly instructed on
the applicable law.” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.)
CSAAS evidence “is not admissible to prove that the complaining witness has in
fact been sexually abused; it 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.” (McAlpin,
supra, 53 Cal.3d at p. 1300; id. at pp. 1300-1301.)
Here, the trial court slightly modified the Judicial Council’s recommended
instruction (CALCRIM No. 1193) to conform to the actual CSAAS testimony in this
case: “You have heard testimony from Dr. Carmichael regarding Child Sex Abuse
Accommodation Syndrome. Dr. Carmichael’s testimony about Child Sex Abuse
Accommodation Syndrome is not evidence that the Defendant committed any of the
crimes charged against him. [¶] You may consider this evidence only in deciding
whether or not R.[]’s conduct was not inconsistent with the conduct of someone who has
been molested, and in evaluating the believability of her testimony.” (See Cal. Rules of
Court, rule 2.1050(a).)
Courts have held this pattern jury instruction accurately informs the jury on the
limited use of CSAAS evidence, but the instruction does not: (a) improperly allow an
alleged minor victim of sexual abuse to corroborate her own testimony; (b) violate due
process; or (c) misapply the burden of proof. (People v. Gonzales (2017) 16 Cal.App.5th
494, 503-504; accord, Munch, supra, 52 Cal.App.5th at pp. 473-474; Lapenias, supra,
67 Cal.App.5th at pp. 175-176.)

28
 We agree with People v. Gonzales, supra, 16 Cal.App.5th at pages 503-504;
Munch, supra, 52 Cal.App.5th at pages 473-474; and Lapenias, supra, 67 Cal.App.5th at
pages 175-176. We also hold CALCRIM No. 1193 accurately instructs the jury on the
law including the proper use and the proper limitations on the use of CSAAS evidence.
Thus, we find the trial court did not commit error by instructing the jury with CALCRIM
No. 1193.

III

Resentencing Under Senate Bill No. 567

While defendant’s appeal was pending, the Legislature enacted Senate Bill No.
567 (2021-2022 Reg. Sess.) (Senate Bill 567), which took effect on January 1, 2022.
Among other things, the bill amended section 1170, subdivision (b) to prohibit trial
courts from considering aggravating circumstances to justify an upper term sentence,
unless the facts underlying each aggravating factor have been established by one of three
prescribed methods. (Stats. 2021, ch. 731, § 1.3.) As amended, section 1170,
subdivision (b) provides that aggravating circumstances only justify the imposition of an
upper term sentence if (1) “the facts underlying those circumstances have been stipulated
to by the defendant, or [(2)] have been found true beyond a reasonable doubt at trial by
the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2), as amended by Stats.
2021, ch. 731, § 1.3.), or (3)the court may “consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without submitting the
prior convictions to a jury.” (§ 1170, subd. (b)(3).)
Defendant correctly argues and the People correctly concede that 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. (See In
re Estrada (1965) 63 Cal.2d 740, 745; People v. Conley (2016) 63 Cal.4th 646, 657 [“in
the absence of contrary indications, a legislative body ordinarily intends for ameliorative

29
changes to the criminal law to extend as broadly as possible”]; People v. Flores (2022) 73
Cal.App.5th 1032, 1039 [holding Senate Bill 567 applies retroactively to nonfinal
convictions on appeal].)
Defendant contends and the People agree that these amendments to section 1170,
subdivision (b) require reversal of defendant’s sentence and remand for resentencing
because the trial court based the upper term sentence for count one on aggravating factors
that do not satisfy the amended statute’s threshold requirements for consideration.
Specifically, defendant notes he did not stipulate to any of the aggravating circumstances
the trial court considered in selecting an upper term sentence, and a jury did not find true
the aggravating factors considered by the judge in imposing the upper term. And the
court did not find the defendant had prior convictions based on a certified record of
conviction.
The parties agree that remand for resentencing consistent with the amendments to
section 1170, subdivision (b), is the proper remedy for addressing the sentence imposed
for count one.
We will remand for a full resentencing. (See People v. Buycks (2018) 5 Cal.5th
857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a
full resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances’ ”].) On remand, the trial
court may revisit all of its sentencing choices in light of new legislation. (See People v.
Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court to
revisit all prior sentencing decisions when resentencing a defendant”].)

30
 DISPOSITION
The sentence is vacated and the matter is remanded for resentencing in compliance
with section 1170 as amended by Senate Bill 567. The judgment is otherwise affirmed.

HULL, Acting P. J.
We concur:

MAURO, J.

DUARTE, J.

31