People v. Garcia CA6

Filed 11/9/22 P. v. Garcia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046635
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1793599)

v.

HECTOR GARCIA et al.,

Defendants and Appellants.

Defendants Hector Garcia and Blanca Torres appeal from judgments entered after
separate juries in a joint trial found them guilty of committing sexual offenses against a
four-year-old child. The trial court sentenced Garcia to 80 years to life in prison and
Torres to 55 years to life in prison.
Between their two appeals, Garcia and Torres raise 17 claims of error. Stated
broadly, they separately or jointly contest the trial court’s admission of evidence
(including evidence about child sexual abuse accommodation syndrome (CSAAS)), the
CALCRIM No. 1193 jury instruction on the use of CSAAS evidence, the prosecutor’s
statements in rebuttal argument about the reasonable doubt standard, the cumulative
prejudice of the alleged errors, and various aspects of their sentences.
For the reasons explained below, we reject Garcia’s and Torres’s challenges to
their convictions but vacate their sentences and remand with directions for resentencing.
 I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In August 2018, the Santa Clara County District Attorney filed a first amended
information (information) charging Garcia and Torres with eight sex crimes committed
against four-year-old A. Doe on or about and between January 1, 2017, and March 31,
2017.1 The charges comprised two counts of sexual intercourse or sodomy with a child
10 years of age or younger (Pen. Code, § 288.7, subd. (a);2 counts 1–2), two counts of
oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7,
subd. (b); counts 3–4), and four counts of forcible lewd or lascivious act on a child under
age 14 (§ 288, subd. (b)(1); counts 5–8). Additionally, the information charged Garcia
with misdemeanor false representation of identity to a peace officer (§ 148.9, subd. (a);
count 9).
After the trial court ruled that Garcia’s statement to police about touching A. at
Torres’s direction was admissible only against Garcia, the court empaneled separate
juries to hear the evidence against Garcia and Torres in a joint trial.
In October 2018, Garcia’s jury found him guilty on counts 1–8.3 Torres’s jury
found her guilty of all counts except count 2, on which the jury did not reach a
unanimous verdict. The trial court declared a mistrial on count 2 and dismissed that
count upon a motion of the district attorney.
On December 10, 2018, the trial court sentenced Garcia to consecutive terms of 25
years to life on counts 1 and 2, plus consecutive terms of 15 years to life on counts 3 and
4. The court also imposed stayed terms of 10 years on each of the remaining counts
(counts 5–8), pursuant to section 654. The court ordered payment of various fines, fees,

1
“Doe” is a pseudonym used in the information. We refer to the minor victim by
the first initial of her first name and other witnesses by their first names and initials to
protect their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4), (10)–(11).)
2
Unspecified statutory references are to the Penal Code.
3
Before trial, Garcia pleaded no contest to count 9 (§ 148.9, subd. (a)).
2
and assessments, including a “Court Security Fee of $320” (§ 1465.8), “Criminal
Conviction Assessment Fee of $280” (Gov. Code, § 70373), and “$129.75 Criminal
Justice Administration Fee to the City of Sunnyvale” (Gov. Code, former § 29550 et
seq.).4 Additionally, on misdemeanor count 9, the court imposed a concurrent 120-day
county jail term and “waive[d] the fees on the misdemeanor.”
On December 17, 2018, the trial court sentenced Torres to 25 years to life on
count 1, plus consecutive terms of 15 years to life on counts 3 and 4. The court also
imposed stayed terms of 10 years on each of the remaining counts (counts 5–8), pursuant
to section 654. The court ordered payment of various fines, fees, and assessments,
including a “Court Security Fee of $280” (§ 1465.8), a “Criminal Conviction Assessment
Fee of $210” (Gov. Code, § 70373), a “$129.75 Criminal Justice Administration Fee to
the City of Sunnyvale” (Gov. Code, former § 29550 et seq.), and two $300 fines, plus
penalty assessments, under section “290.3.”5 Additionally, the court ordered Torres to
submit to a blood test for evidence of HIV (§ 1202.1).
B. Evidence Presented at Trial
1. Prosecution Evidence
A. was born in November 2012, and was four years old at the time of the charged
crimes and five at the time of trial. A.’s 22-year-old mother Maria testified that Torres
babysat A. at Maria’s request about four times between January and March 2017.6 Torres
had an adult daughter, Jessica C., who was Maria’s friend and coworker.

4
We note a discrepancy in the record between the trial court’s oral pronouncement
of a $280 criminal conviction assessment fee and the clerk’s sentencing minutes
reflecting the amount of that fee as “$240.” Specifically, the clerk’s minutes state that
the trial court ordered a “$240” “ICMF” fee, which corresponds (except as to the amount)
to the ordered “Criminal Conviction Assessment Fee of $280” (see Gov. Code, § 70373
[also referred to as a court facilities assessment]).
5
Contrary to the trial court’s oral pronouncement at Torres’s sentencing hearing,
the abstract of judgment and clerk’s minutes state that the court imposed one $300 fine
under section 290.3 and another $300 fine under section 290.85.
6
Unless otherwise indicated, all dates were in 2017.
3
 During the period that Torres babysat A., A.’s grandmothers also watched her. In
addition, Maria had two roommates, Mary and Miguel. Maria had an intimate
relationship with Miguel for about four or five months while they roomed together.
Neither Mary nor Miguel watched A., but Mary did sometimes drop A. off at her
grandmothers’ homes. Maria did not notice anything wrong with or unusual about A.’s
vaginal area or private parts during the period that Torres babysat A. Further, Torres did
not say anything to Maria about A. having redness on her private parts or having said that
Miguel had licked her private parts. Once, Torres contacted Maria and asked when she
(Torres) would see A. again. Maria thought this was strange.
Maria told A. weekly that no one (except her mother and her grandmothers) was
allowed to touch her private parts. Maria repeatedly said this to A. because Maria had
been sexually molested around age four, but Maria never told A. about that molestation.
One night, around July 19, as Maria and A. were lying down getting ready for bed
and acting playfully, A. moved Maria’s hand toward her (A.’s) vagina area and made a
humping motion. Maria asked A. why she was doing that. A. said, “ ‘I don’t know.’ ”
Maria continued questioning A. about what she had done and asked “ ‘who showed you
this?’ ” Eventually, Maria said to A. “ ‘This isn’t a game. You need to tell me what’s
going on.’ ” A. responded that Torres (whom she called “Chewbanca”) had touched her
in her vagina area.7 A. said the touching happened about two times and she had told
Torres to stop but Torres did not want to “ ‘because [Torres] liked it.’ ”8 A. said she was

7
Maria testified that A. called her “privates” her “colita,” meaning “the whole
area, the whole vagina and bump (phonetic) area.” Maria further said that A. sometimes
referred to the entire area as her “butt.” Additionally, A. testified that her “ ‘colita’ ” is
“the part where [she] go[es] pee.”
8
The trial court allowed the “ ‘because [Torres] liked it’ ” statement into evidence
over Torres’s objection and motion to strike it as speculation. The court instructed the
jury that that statement was admitted not for its truth but to explain the witness’s (i.e.,
Maria’s) conduct.
4
scared, and she sounded sad to Maria. Before this disclosure, Maria had not seen A. act
in any way that made Maria suspicious that someone had touched A.
The next day (July 20), Maria contacted the Sunnyvale police. When Maria told
A. that they were going to see the police and the police would ask her some questions, A.
asked why. Maria explained that the questions would be about what A. had disclosed
regarding Torres. A. again said she was scared. A. then mentioned Torres’s boyfriend
(whom she later identified as Garcia) and said “that she saw something in a w[ie]ner-like
figure.” A. also said that Garcia had touched her and Torres was holding a light when he
did that. Maria testified that A. said Garcia had put the “hotdog” in her vagina area.
Additionally, Maria had previously told the police that A. said “ ‘[Garcia] put this soft
thingy, put it in my butt.’ ” Maria asked A. why she had not talked about this situation
earlier. A. said she was scared but no one had threatened her.
On August 10, A. was medically examined and interviewed by a police detective.
Physician assistant Mary Ritter conducted the sexual abuse examination. The exam did
not reveal anything remarkable, and Ritter did not find any signs of trauma or
penetration. Ritter explained that, given the timing of the alleged events, an injury from
penetration could have healed by the time of her examination. Ritter also said that her
findings could be consistent with either sexual abuse or no sexual abuse.
Detective Elizabeth Digiovanna interviewed A. on August 10. A. told Detective
Digiovanna that Torres had touched her butt “ ‘cause [her] butt was red.” A. also
described “a big [] thing that his butt rode. [¶] . . . [¶] It’s like a [] hot dog. But more
softer [sic]. [¶] . . . [¶] It was so squishy.” Torres touched A.’s butt after A. said “don’t
touch my butt. My mom will get mad.” Torres touched A. with “the hot dog thing, more
squishier [sic] and more like saltier.” The first time Torres touched A., “[s]he laid [A.]
down and that hurt a lot. [¶] . . . [¶] She was pushing it like too hard. [¶] . . . [¶] And
that [] hurt a lot.” When asked to talk about “the second time,” A. responded, “Because

5
she want to [sic] ‘cause she likes it.” When asked more directly if there was another time
that Torres had touched her, A. said, “No.”
A. told Detective Digiovanna that Garcia had touched her butt. A. said Garcia had
something growing in his butt and “she put it inside . . . . It was tickling me. And I feel
it. [¶] . . . [¶] It’s like something soft.” Garcia put something like a “corndog” (which
grew from his groin area and was “slimy” with a “blanket”) in her butt. Torres was
present at the time and used a light on her phone. A. further reported that Torres and
Garcia took her to a “car house.” There, A. “was laying down [in the bed], ‘cause
[Torres] wanted to touch [A.’s] butt.” A. said Torres did not touch her butt every time
that she had gone to Torres’s home.
On August 15, Detective Digiovanna and Detective Ruben Cortez facilitated a
recorded pretext phone call between Maria and Torres. During the call, Maria told Torres
that A. had said Garcia “showed her some things and he touched her in an inappropriate
place.” Torres responded, “Yes Maria, do you remember that one time I . . . had told you
that I wanted to talk with you. I told [] Jessica, the little girl . . . [¶] . . . [¶] . . . I told
you that I wanted to talk with you because I would see that the little girl, her behavior
was not right.” Torres further said that Garcia was not present while she babysat A., she
never left A. alone, and the only time Garcia saw A. was when they once picked him up
at work and went to get ice cream. Torres also said A. had mentioned a man named
Miguel and had said that Miguel did something to her with his mouth.
After the pretext call, Maria and Torres met in a restaurant parking lot and the
police recorded their conversation. Torres denied taking A. to her RV. Torres said that
she would help Maria investigate the situation and find Garcia, who was homeless and
had last been living in his vehicle behind a supermarket. She also said that she had
thought about calling social services about what A. said to her but did not do so because
she did not want to be a bad person.

6
 On August 17, Detective Digiovanna met with A. and showed her a photograph of
Garcia. A. identified Garcia as Torres’s boyfriend. When asked to talk about him, A.
said, “He just put that . . . hot dog in my butt, and she – he put it right now.” A. further
said that Torres “touched [] my butt the first time. . . . The first time when he touched my
butt. [¶] . . . [¶] The first time, when my mom take me there, the first time. . .[] he
touched my butt. [¶] . . . [¶] ‘Cause he wanted to.”
The police arrested Garcia and Torres on August 17. Detective Cortez
interviewed Garcia. A video of the interview was played for Garcia’s jury (but not
Torres’s jury). In the interview, Garcia said that he recalled Torres watching A. about
twice, once at Torres’s apartment and then at a house that had an RV parked in the
backyard. Garcia said the first time Torres watched A., A. woke him up while naked
(after Torres had bathed her), tried to put makeup on him, and wanted to kiss him on the
mouth. A. also wanted to touch his penis and touched herself.
Garcia said that he and Torres had sex while A. was in the bedroom; they thought
A. was asleep. Garcia and Torres “play[ed] around with the girl,” and he looked at A.’s
vagina because it was “chafed.” Torres told Garcia to play with and touch A. “like a
woman.” Torres held her phone and watched as Garcia touched A., including on her legs
and buttocks. Garcia also said that he slightly touched A.’s vagina “almost by accident”
with the back of his hand. Garcia repeatedly denied that he had sexually abused or
penetrated A. Garcia also told Detective Cortez that Torres might have been interested in
children sexually because of the pornography she watched.
Detectives Digiovanna and Cortez interviewed Torres on August 17. Torres
recalled watching A. three times at her apartment and initially said Garcia was not
present any of these times. Torres said that the first time she watched A., A. had a
burning sensation when she urinated, so Torres gave her a bath. Torres contacted Maria
to get clean clothes for A., but when Maria said she could not bring any, Torres bought
A. new underwear. Torres said that she noticed A.’s “ ‘parts’ ” were red, and A.
7
demonstrated a licking motion, saying Torres had to lick her to make it feel better.
Torres did not tell the detectives that she had put Desitin cream on A. or had used a light
on her phone to guide A. to the bathroom.
During the interview, Torres initially said A. had mentioned the name Miguel, but
A. did not say he had abused her. Later in the interview, Torres mentioned Miguel and
Mary as people who might have abused A., and that Miguel and Mary showed A.
pornographic movies. A. told Torres that she (A.) could perform the acts she had seen in
the movies, and she made a grinding motion on a stuffed animal. A. also said that Miguel
put something inside her and it hurt because she is too little. In addition, Torres said she
had told her daughter Jessica and friend Ana H. about Miguel.
Torres made clear to the detectives that she thought Maria was an irresponsible
mother who drank and smoked marijuana in front of A., put A. around many men, and
did not take care of her or keep her safe. Torres said that when she told Maria about A.’s
behaviors, Maria did not care. Torres also said she did not contact child protective
services because she did not know exactly what had happened to A.
Torres explained that Maria made up this story of abuse and might have been mad
at Torres over an unrelated $300 rental agreement fee that Maria owed her. Torres
believed that Maria had coached A. to say things. Torres said she was mad at Maria
because she would not listen to Torres. Torres also said she was upset with Maria
because Maria did not buy medicine for A. when she needed it and Torres had to buy A.
underwear.
After Torres eventually admitted to the detectives that Garcia had been around A.,
Torres told the detectives that A. was curious about Garcia, wanted to play with and be
around him, sat on his lap, and pretended to put makeup on him. Torres denied touching
A. inappropriately and said she and Garcia were never alone with A. in Torres’s RV.
Torres also denied photographing A., but said she no longer had the phone she had at the
time she babysat A. because it had been stolen.
8
 A. testified at trial that Torres had “touched [her] colita” and Garcia “had a little
thingy on his colita [that] he put in [A.’s] colita.” A. described the “thingy” or “little
weenie” as long and feeling “weird and wet.” Torres held Garcia’s weenie and “put it on
[A.’s] colita” while A. was on the bed in Torres’s bedroom. A. touched Garcia’s weenie
and it felt wet and hot. Garcia held up a light on Torres’s phone for Torres to see. The
touching made A. feel mad and sad.
Torres also touched A.’s colita in a “camping car,” which made A. feel “very, very
mad.” Torres had said Garcia was “gonna get the little weenie thing to touch [A.’s]
colita. And [A.] said -- ‘I wanna tell my mom’ -- but [Torres] said, ‘Don’t tell her.’ But
[A.] just told her.”
When asked by the prosecutor if there was anything else Garcia had done that A.
did not like, A. testified that Torres “said to go to [Garcia] and rub some soap on the little
weenie thing.” Torres gave A. the soap and told her to “rub it and get on him” like
“getting on the chair.” As this was happening, Garcia was “[r]elaxing and laying down.”
This made A. feel “[v]ery weird and sad and mad.” A. also testified that Torres once
bought her some toy makeup that she put on her face. A. did not put any makeup on
Garcia.
A. testified that Miguel never touched her and she never told Torres that Miguel
had put his tongue on her private parts.
On cross-examination, A. acknowledged that she had previously testified about
Torres putting cream on her colita.9 A. remembered having a burning sensation in her
colita, but it did not hurt. A. said that Torres had touched her “like, three times.” After
first stating that Torres “[m]aybe” had cream on her hand when she touched her, A.
testified that Torres did not put any cream on her. A. also remembered previously

9
During the prosecution’s case in chief (and upon stipulation of the parties), A.’s
preliminary hearing testimony was read to the jury. In that testimony, A. said Torres had
touched her colita one time and Garcia had touched her colita one time.
9
testifying that Garcia had touched her on the inside of her colita. A. testified that she had
said this because defense counsel told her that and she was just asking if that was the
right answer. In addition, A. admitted that she had previously testified that Garcia
touched her with his hand. She explained that she had said that because she was
embarrassed to say that he had touched her with his penis, so she “pretended” and lied.
Clinical psychologist Dr. Blake Carmichael testified as an expert on child sexual
abuse accommodation syndrome (CSAAS).10
2. Defense Evidence
Torres testified on her own behalf in front of both juries. Torres said she did not
observe Garcia touch A. in any inappropriate way, and she did not see or take part in any
inappropriate behavior with Garcia and A. Torres further testified that she never left A.
alone with Garcia “except to go to the bathroom or the kitchen.” Torres also denied
asking Maria to bring A. over to her home.
During the period that Torres watched A., Torres lived in an apartment with her
two children and another family that included Ana H., her husband, and three children.
The first time Torres watched A., Maria dropped A. off at the apartment in the evening.
Garcia arrived sometime later that night. When A. used the bathroom, A. said she had a
burning sensation and was not able to urinate. Torres looked at A.’s private parts and
they were “very irritated, reddish.” Torres bathed A. and asked Ana for some of her
Desitin cream. As Torres was drying A. off, A. made a movement with her tongue and
said “if [Torres] licked her the way [her mother’s boyfriend] Miguel did, then she would
be able to feel better.” Torres applied cream over the surface of A.’s private parts.
Torres did not insert her finger inside A.’s vaginal area. In the past, Torres used Desitin
cream the same way with her own children and when she worked at a child daycare

10
We discuss Dr. Carmichael’s testimony post, in our discussion of the claims for
relief (see part II.A.1.).
10
facility. Because Maria had not included any underwear in the clothes that she left with
Torres, Torres went to a store to buy A. underwear.
Later, after Garcia left the apartment, Torres and A. went to Torres’s bedroom.
While A. was playing with stuffed animals under a blanket, Torres noticed A. making
“strange movements on top of one of the stuffed animals.” When Torres asked A. about
this, A. “seemed slightly embarrassed” and said she was doing it “ ‘because Mary and
Miguel, that’s what I see them do.’ ” After A. and Torres slept some, A. asked to use the
bathroom. Torres turned on the light on her cell phone to guide A. to the bathroom.
Torres asked A. about how her private parts felt. A. said she felt better, and Torres
decided to apply more cream to A.
In the morning, when Maria came to pick A. up, Torres told Maria what A. had
said and done, informed Maria of the names A. had mentioned, asked who those people
were, and told Maria about A.’s redness. Maria responded that A. “was trippin’.”
Later, Torres decided to talk to her daughter Jessica and roommate Ana. Torres
told Ana about what A. had said and done and asked for Ana’s advice. Torres thought
about reporting the situation, but Torres did not contact the police or child services
“[b]ecause there were many things [Torres] wasn’t sure [about].”
Torres watched A. on three other occasions. During the fourth (final) occasion,
Torres, Garcia, and A. went from Torres’s apartment to her daughter’s house (where the
RV was parked). Torres went inside the RV for “[s]econds” to retrieve a sweater for A.,
but Torres did not take A. inside the RV.
Torres denied filming or taking pictures of A. Torres admitted that she was
untruthful when talking to Maria in August 2017 about Garcia’s whereabouts and the
contact she (Torres) had with him. Torres explained that she did not know what was
going on, did not think Garcia had touched A., and wanted to talk to him. Torres later
confronted Garcia about the abuse allegations and believed what he said to her.

11
 On cross-examination, regarding the first time she babysat A., Torres said that she
had purchased “little girl’s makeup” for A. and A. tried to put the makeup on Garcia in
the kitchen. Torres denied that she and Garcia had sex while A. was in the bedroom. She
also denied telling Garcia to play with A., give her a spanking, or touch her like a
woman. Torres admitted to having watched pornography for some time (including on the
cell phones recovered by the police) and that some of the pornography included three
participants. Torres said she had watched pornography alone and with Garcia.
Garcia did not testify before either jury.
Torres’s daughter Jessica C. testified before both juries. She corroborated that on
the day after Torres first watched A., Torres relayed a story about A. “sticking out her
tongue,” “asking to [] kiss” Torres, and “just do[ing] [] weird movements with her
mouth, saying that someone showed her how to do that.” Torres also asked Jessica if a
name that started with an “ ‘M’ ” sounded familiar. Jessica suggested the name Miguel,
and Torres also mentioned Mary. Torres asked if she should make a report to child
protective services or the police. Jessica told Torres to “ ‘just leave it alone’ ” because
Maria “would just take it the wrong way,” “wouldn’t really see the seriousness in it,” and
“might just even ignore it.”
On cross-examination, Jessica acknowledged telling the police that Torres did not
say “ ‘that it was Miguel.’ ” Jessica also admitted talking to Torres (before she had
watched A.) about Maria and Miguel and Jessica’s feeling that A. did not act
appropriately around men. Jessica recalled Torres saying that Mary taught A. about
kissing and A. had a rash, so Torres gave her a bath and put rash cream on A.
Torres’s friend and roommate Ana H. testified before both juries. She recalled
Torres asking if she could use the bathroom while she was watching a young girl. Ana
did not remember if Torres asked to use her cream. Ana recalled that the next day,
Torres said that she thought something was going on with the girl (including that the girl
had been touched) and was concerned about the girl’s behavior. Ana told Torres that if
12
she wanted to do something, she should “ ‘call child protective services or stay away
from that child because you are gonna get in trouble or you might get blamed for it.’ ”
Torres mentioned the name Miguel when telling Ana about what the girl had said, and
Torres said she had given the girl a bath because she had some redness or itchiness.
On cross-examination, Ana expanded on what Torres had relayed about the girl:
“[T]he little girl would tell her that this guy would do something in her butt with his
tongue and that she was being touched and that she would like to sit on the men’s, [sic]
and that was concerning for [Torres].” Torres also had said the girl “would move her
tongue in . . . weird ways, that she didn’t understand . . . why -- a little girl should not be
doing that kind of stuff.”
Dr. Bradley McAuliff testified (before both juries) as an expert on child
suggestibility and forensic interviews of children. Dr. McAuliff described suggestibility
as “looking at the accuracy of memory or the accuracy of a witness’s report.” He
discussed the academic study of suggestibility and the factors that relate to or influence
child suggestibility, including direct repeated questioning, “interviewer authority,”
“cross-contamination,” “source monitoring,” and the child’s age. Dr. McAuliff stated
that “the general pattern in suggestibility is that with preschoolers, . . . kids age[d] zero to
five, they’re the most suggestible, which means they’re most easily influenced” by the
factors he described. Dr. McAuliff addressed the potential for suggestibility in the
context of various hypotheticals based on circumstances similar to those in this case.
On cross-examination, Dr. McAuliff stated his concern that A.’s disclosure of
molestation in this case was not a “spontaneous disclosure,” but rather “prompted by
[Maria], who had prior experiences, [and] who was insistent on asking questions.” He
also noted that Torres had described nonsexual touching (i.e., the use of Desitin cream)
and A. could have made “an inference based on the context and the way these questions
[were] being asked [by Maria] that this was a bad thing and that somehow [Torres]
enjoyed it.” Dr. McAuliff said he had concerns about how A. knew that Torres “liked it.”
13
Regarding source monitoring, Dr. McAuliff said he was concerned about “the
conversations [A. had] with [her] mom; the way mom questioned [A.]; the fact that
[Torres] said there was nonsexual touching of the vagina; and the fact that [A.] had
disclosed prior abuse” (i.e., A.’s alleged statements to Torres about Miguel). Dr.
McAuliff also said Detective Digiovanna’s interview of A. was “a good forensic
interview.”
Psychologist Dr. Hy Malinek testified (before Garcia’s jury only) as an expert in
psychology, the diagnosis of mental disorders, and the determination of whether an
individual has a predisposition or inclination to commit sex offenses against children.
Dr. Malinek had interviewed Garcia, administered personality tests to him, and reviewed
case material and Garcia’s criminal history report. Based on the totality of the
information available to Dr. Malinek, he concluded that Garcia was not predisposed to
commit sexual offenses and “cannot be diagnosed with pedophile or antisocial
personality disorder.” Dr. Malinek noted that Garcia had no prior charges or convictions,
had “no other reports that he is into children sexually,” had been married, had four
children, and had maintained a sexual relationship with an adult woman for three years.
According to Dr. Malinek, “All these are not marks of pedophiles.” Additionally, the
personality testing showed Garcia to be a “passive, kind of dependent kind of guy, who is
inclined to be compliant, . . . tends to be self-effacing, tends to be . . . more inflexible,
[and a] more psychologically naïve kind of guy.” Dr. Malinek’s “overall impression” of
Garcia was that he allowed Torres to make decisions for him, and he was dependent on
her.
Detective Matthew Hutchison testified (before Garcia’s jury only) that he
interviewed Torres on August 18 (the day after her arrest and interview with Detectives
Digiovanna and Cortez). Hutchison played for Torres a portion of Garcia’s August 17
interview in which he had admitted touching A. at Torres’s direction. As Torres watched

14
the video, her hands shook, she held her head down low, and covered her eyes with her
hand. Torres also repeatedly said “ ‘Oh. My God’ ” and called Garcia “ ‘stupid.’ ”
3. Stipulations
The district attorney and Garcia stipulated to the following (before Garcia’s jury
only):
“Hector Garcia’s phone that was found on his person when he was arrested had
four deleted commercial adult pornography videos in the deleted portion of the phone.
[¶] It was undetermined when these videos were originally viewed. Two of the videos
were deleted on August 12th, 2017, and two of them were deleted on August 16th of
2017.”
“Torres had on both of her phones, the pink phone found in the RV, and the other
phone found in her car, . . . [a] total [of] over 900 entries in her web browser history for
all types of commercial adult pornography, some with titles including ‘incest’ and ‘young
teen pornography.’ ”
II. DISCUSSION
Torres and Garcia raise 17 claims of error. Garcia and Torres jointly argue:
(1) the trial court erred by admitting Dr. Carmichael’s testimony about CSAAS; (2) the
trial court erred by allowing Dr. Carmichael to testify about certain case-specific
hypothetical scenarios; and (3) the trial court erred by instructing the juries with
CALCRIM No. 1193 (CALCRIM 1193).
Torres separately argues: (1) the trial court erred by admitting evidence that A.
made a statement that Torres touched A. because she (Torres) liked it; (2) the alleged
errors were cumulatively prejudicial; (3) there is insufficient evidence to support the trial
court’s order that she submit to an HIV test; (4) one of the two $300 fines imposed under
section 290.3 is unauthorized; (5) the abstract of judgment should be amended by striking
the 10-years-to-life sentences listed for counts 5–8; (6) the $129.75 criminal justice
administration fee should be vacated in light of Assembly Bill No. 1869 (2019-2020 Reg.
15
Sess.) (Assembly Bill 1869); (7) the matter should be remanded for resentencing due to
recent changes to section 654 made by Assembly Bill No. 518 (2021-2022 Reg. Sess.)
(Assembly Bill 518); and (8) recent changes to section 1170 made by Senate Bill No. 567
(2021-2022 Reg. Sess.) (Senate Bill 567).
Garcia separately argues: (1) the prosecutor improperly stated in rebuttal that
Garcia had failed to create a reasonable doubt and mischaracterized the reasonable doubt
standard; (2) the alleged errors were cumulatively prejudicial; (3) the $129.75 criminal
justice administration fee should be vacated in light of Assembly Bill 1869; (4) the $280
criminal conviction assessment fee should be reduced; (5) the matter should be remanded
for a new sentencing hearing due to recent changes to section 654 made by Assembly Bill
518; and (6) the matter should be remanded for a new sentencing hearing due to recent
changes to section 1170 made by Senate Bill 567.
We will first address Torres’s and Garcia’s joint claims challenging the admission
of Dr. Carmichael’s testimony about CSAAS and the related jury instruction. We next
will consider their separate arguments concerning the admission of other evidence, the
prosecutor’s rebuttal argument, and cumulative error. Finally, we will turn to their
various sentencing claims.
A. CSAAS Evidence and CALCRIM 1193
1. Background
Pretrial, the prosecutor moved in limine to admit CSAAS evidence. The
prosecutor noted that A. had “delayed disclosure for at least 4 months” and asserted that
the CSAAS evidence was relevant and probative. The prosecutor stated that an expert
witness could explain CSAAS “to provide the jurors a better understanding why victims
of child sexual abuse may be fearful and reluctant in disclosing sexual abuse and how
that fear and reluctance may cause delay in reporting such abuse. The expert will also be
able to assist the jury to understand how such abuse may lead to an environment of

16
secrecy, helplessness, entrapment and accommodation, and retraction. The expert will
explain how such abuse affects how a child discloses such abuse.”
At a pretrial hearing, Garcia’s defense counsel (joined by Torres’s counsel) argued
there was no “significant delayed disclosure . . . attributable to any kind of
accommodation on the part of the victim” and no indication that A. feared either Garcia
or Torres. Torres’s defense counsel added that CSAAS was “outdated,” in that it arose
“when people had certain beliefs about how a child victim should act.”
The trial court granted the prosecutor’s motion, ruling that the CSAAS evidence
was generally relevant and, “subject to relevance objections and there being some
connection to the allegations in this case, it is admissible to explain things like delayed
disclosure to the jury.” The court advised defense counsel to raise any necessary
objection during the expert’s testimony.
At trial, Dr. Blake Carmichael testified as an expert on CSAAS. He explained that
CSAAS was fashioned in the early 1980s to help educate people, explain the
misconceptions and context in which child sexual abuse can occur, and lay a foundation
for understanding “how something like this could occur,” including the reactions of the
abused child or an involved adult “that might not make sense otherwise, but we know
these things do happen when kids have been sexually abused.” Dr. Carmichael was not
aware of the circumstances or the charges in this case and said that CSAAS is not used to
diagnose children or determine whether they are telling the truth about sexual abuse. He
further said that there is “no checklist,” “interview,” or “method to determine whether or
not a child was sexually abused.”
Dr. Carmichael described the five “topics” included in CSAAS, namely, secrecy,
helplessness, entrapment or accommodation, delayed and unconvincing or inconsistent
disclosure, and recantation or retraction.
Regarding delayed and unconvincing or inconsistent disclosure, Dr. Carmichael
said that “what we know from decades of research is that most kids don’t tell right
17
away.” He said further that around 20 percent or less of children tell “quickly,” within
the first week or two, while 40 to 60 percent do not tell within the first year. When
children disclose, it can be unconvincing because they often do not give consistent
details, do not give the information the same way each time, or might tell different details
to different people based on what they are comfortable telling each person or the context
of the conversation. A common misconception regarding unconvincing disclosures is
that a child will cry or be overly emotional when disclosing abuse. Rather, research done
with sexually abused children showed that “about 80 percent of those kids were very
flat. . . . They didn’t appear tearful. They didn’t cry.” Furthermore, children (especially
younger children) might not have “the language base or experience” to describe certain
acts or body parts in a clear, non-confusing manner.
Over defense objections, Dr. Carmichael addressed some hypothetical questions
posed by the prosecutor. The first hypothetical described a delayed disclosure under
circumstances akin to those in this case, including that the child had previously been
informed by her mother about proper and improper touching, was not threatened by the
abuser, and was scared to disclose the abuse because her mother would get mad. Dr.
Carmichael said that the child’s behavior in this hypothetical scenario was not surprising
to him because the child might feel responsible for the abuse and fear getting in trouble
for being a part of it. Dr. Carmichael further explained that “touch is a very natural part
of relationships” and a child might not recognize when touching becomes inappropriate.
He summed up by saying, “So there’s a lot of reasons why younger kids may not tell
about being touched inappropriately or even be unaware of it.”
Another of the prosecutor’s hypothetical questions addressed incremental
disclosure, presenting a scenario in which a sexual abuse victim discloses information to
a parent about abuse by one person and, the next day, states further that another person
also was involved in the abuse. Dr. Carmichael testified that he would not be surprised
by this scenario because “it may not be relevant to that child to share about a different
18
abuse or a different situation.” When the prosecutor followed up with a hypothetical in
which the child had been molested simultaneously by two people but initially disclosed
information about only one molester, Dr. Carmichael explained that “there are core
details and peripheral details,” and the fact that the touching happened (i.e., a core detail)
“is maintained or maybe shared first.”
The prosecutor asked Dr. Carmichael if he would be surprised if a child claimed
“they were touched with a hand and then also touched with a penis, but they initially
disclosed that they were just touched with the hand by one perpetrator. They don’t
disclose the penetration part initially.” Dr. Carmichael said he would not be surprised by
this situation because most people do not go fully into the “salacious” or “most traumatic
details” of a disturbing event when they first talk about the event. “It’s not expect[ed
that] someone [would] divulge everything all at once.”
Additionally, Dr. Carmichael said he would not be surprised that a child would
willingly go back to an abusive caretaker for a second or third time after abuse because
children rely on adults for care and protection and “might not be able to avoid going to
[the abuser] because they’re told they have to go.” He further testified that the child
might enjoy certain aspects of the relationship with the caretaker or the caretaking
environment.
In objecting to the prosecutor’s hypothetical questions, Garcia’s counsel and
Torres’s counsel cited People v. Jeff (1988) 204 Cal.App.3d 309 (Jeff) and argued that
the case-specific hypotheticals could not properly be used for the “purpose of proving
that a molest occurred” and were being used here “to support the allegations of the
molest.” Garcia’s counsel stated that the defense objection was limited to the use of
hypotheticals, not the expert’s testimony more generally. The trial court overruled the
defense objection, stating that the use of hypotheticals generally is proper.
Furthermore, Garcia’s counsel and Torres’s counsel said they had no objection to
the trial court instructing the juries regarding their consideration of the CSAAS evidence
19
and, more generally, the expert witness testimony. But Garcia’s counsel said he did not
“think that will cure the problem,” while acknowledging “it’s a step in the right
direction.”
During Dr. Carmichael’s direct testimony, the court instructed the juries with a
version of CALCRIM 1193 and with CALCRIM No. 332 (regarding expert witness
testimony). The court repeated these instructions when finally (and separately)
instructing the juries after the close of evidence. The final instruction with CALCRIM
1193 read as follows: “You have heard testimony from Dr. Blake [Carmichael] regarding
child sexual abuse accommodation syndrome. [¶] Dr. [Carmichael]’s testimony about
child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against [him/her]. [¶] You may consider this
evidence only in deciding whether or not [A.] Doe’s conduct was not inconsistent with
the conduct of someone who has been molested, and in evaluating the believability of her
testimony.”
In separate closing argument to each jury, the prosecutor made numerous
references to Dr. Carmichael’s testimony.
2. Challenge to CSAAS Expert Testimony
In the first of three claims challenging the CSAAS evidence and CALCRIM 1193,
Torres contends the trial court erred by admitting Dr. Carmichael’s testimony. She
asserts the CSAAS evidence was not probative and was unduly prejudicial. She argues
that while the evidence is intended to address misconceptions the jurors might have had,
nothing in the record establishes whether people today still hold such misconceptions.
She also asserts that the evidence was “likely more misleading than helpful,” raises
“grave concerns” regarding its scientific validity and underlying assumptions, and was
prejudicial under People v. Watson (1956) 46 Cal.2d 818 (Watson), because “[A.]’s
credibility was paramount,” Dr. Carmichael “effectively told the jury that Torres
molested” A., and the prosecutor relied heavily on the CSAAS evidence in her closing
20
argument. In addition, Torres contends generally that CSAAS intrudes on the jury’s
determination of witness credibility, is not probative of abuse, and does not assist the jury
in determining whether allegations of abuse are true. Lastly, Torres claims that the
admission of CSAAS evidence violated her due process right to a fair trial. Garcia joins
Torres’s argument in full.
Expert witness testimony is admissible if it is “[r]elated to 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)), and is “[b]ased on matter (including [the
expert witness’s] special knowledge, skill, experience, training, and education) perceived
by or personally known to the witness or made known to [the witness] at or before the
hearing, whether or not admissible, that is of a type that reasonably may be relied upon
by an expert in forming an opinion upon the subject to which [the witness’s] testimony
relates.” (Id., subd. (b).) We review a trial court’s decision to admit expert testimony for
abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
As Torres acknowledges, CSAAS evidence is routinely admitted in sexual abuse
cases in California. “Trial courts may admit CSAAS evidence to disabuse jurors of five
commonly held ‘myths’ or misconceptions about child sexual abuse. [Citation.] While
CSAAS evidence is not relevant to prove the alleged sexual abuse occurred, it is well
established in California law [that] CSAAS evidence is relevant for the limited purpose
of evaluating the credibility of an alleged child victim of sexual abuse.” (People v.
Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); see also McAlpin, supra, 53 Cal.3d
at pp. 1300–1301; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Wells (2004)
118 Cal.App.4th 179, 188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745
(Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955–956; People v. Harlan (1990)
222 Cal.App.3d 439, 449–450; People v. Stark (1989) 213 Cal.App.3d 107, 116–117.)
In light of this precedent, we conclude the trial court here did not abuse its
discretion when it ruled pretrial that the prosecution’s proposed expert testimony on
21
CSAAS was relevant and admissible. (See Lapenias, supra, 67 Cal.App.5th at p. 172,
Patino, supra, 26 Cal.App.4th at pp. 1744–1745; People v. Perez (2010) 182 Cal.App.4th
231, 245.)
Because we discern no error by the trial court in admitting Dr. Carmichael’s
testimony about CSAAS generally, we need not address Torres’s related argument that
that testimony was prejudicial under Watson.11 Moreover, we decide that
Dr. Carmichael’s testimony about CSAAS did not violate Torres’s or Garcia’s
constitutional right to due process. (See Lapenias, supra, 67 Cal.App.5th at p. 174;
Patino, supra, 26 Cal.App.4th at pp. 1746–1747.)
3. Challenge to Case-Specific Hypothetical Questions
Garcia and Torres each contend that the trial court erred by allowing
Dr. Carmichael to opine on the hypothetical questions posed by the prosecutor.12 Garcia
argues that the hypotheticals exceeded the proper scope of CSAAS expert testimony,
violated Garcia’s constitutional right to be convicted based on reliable evidence, and was
prejudicial under any standard of prejudice. Similarly, Torres argues that even if the
CSAAS evidence was generally admissible, the hypothetical questions and Dr.
Carmichael’s responses were not admissible, violated Torres’s constitutional right to a
fair trial, and were prejudicial regardless of the applicable harmlessness standard. As
they did in the trial court, Garcia and Torres rely in part on Jeff, supra, 204 Cal.App.3d
309 as support for their arguments.
“ ‘Generally, an expert may render opinion testimony on the basis of facts given
“in a hypothetical question that asks the expert to assume their truth.” ’ ” (People v.
11
Neither Torres’s defense counsel nor Garcia’s defense counsel argued at trial
that the trial court should preclude Dr. Carmichael’s testimony under Evidence Code
section 352. We do not understand Torres’s argument on appeal regarding the prejudice
resulting from the purportedly erroneous admission of Dr. Carmichael’s testimony to
include a separate claim that the prosecutor committed error when discussing the CSAAS
evidence in her closing arguments.
12
In her briefing, Torres also joins Garcia’s argument on this claim.
22
Vang (2011) 52 Cal.4th 1038, 1045; see also People v. Sanchez (2011) 63 Cal.4th
665, 676–677.) On the other hand, it is improper for an expert to testify about CSAAS in
a manner that directly coincides with the facts of the case. (See People v. Gilbert (1992)
5 Cal.App.4th 1372, 1384; People v. Bowker (1988) 203 Cal.App.3d 385, 394; People v.
Roscoe (1985) 168 Cal.App.3d 1093, 1099–1100.) A trial court has broad discretion with
respect to the admission of expert testimony, and we review a trial court’s rulings for
abuse of discretion. (See People v. Duong (2020) 10 Cal.5th 36, 60; People v. Moore
(2011) 51 Cal.4th 386, 419 (conc. opn. of Kennard, J.).)
In Jeff, two experts for the prosecution testified: The first described the victim’s
symptoms based on interviews with the victim, and the second described child molest
syndrome. The prosecution prefaced the expert testimony in opening statement by saying
that the second expert would tell the jury “ ‘what these symptoms mean.’ ” (Jeff, supra,
204 Cal.App.3d at p. 338.) The prosecution ultimately asked the second expert a series
of hypothetical questions that incorporated “the exact same facts and details” as those in
the allegations against the defendant. (Ibid.) The expert explained that the victim’s
“emotions, fears, and reactions to others are symptoms exhibited by a child molest
victim.” (Ibid.) On appeal, the Jeff court held this evidence was inadmissible because
the expert’s testimony “told the jury that they should accept” as true the victim’s version
of events. (Ibid.)
The expert testimony presented in this case is distinguishable from that in Jeff.
The prosecution did not present any expert testimony based on interviews or
examinations of A. In fact, Dr. Carmichael testified that he did not know any
circumstances of the present case. Although the prosecutor’s hypothetical questions bore
similarities to A.’s behavior as established by prosecution evidence, neither the questions
nor Dr. Carmichael’s responses tracked A.’s conduct so closely that the testimony “told
the jury” it should believe her allegations. (Jeff, supra, 204 Cal.App.3d at p. 338.) By
contrast, Dr. Carmichael testified specifically that CSAAS is “absolutely not” used to
23
diagnose children or determine whether they are telling the truth about sexual abuse. He
further said, “There’s no method to determine whether or not a child was sexually
abused.” Additionally, the trial court instructed the juries on the limited permissible use
of Dr. Carmichael’s testimony. We presume the juries here understood and followed
these instructions. (See People v. Hinton (2006) 37 Cal.4th 839, 871.)
Under these circumstances, we are not persuaded that the prosecutor’s
hypothetical questions and Dr. Carmichael’s responses were impermissible under Jeff or
any other binding precedent. We thus conclude that the trial court did not abuse its
discretion by allowing Dr. Carmichael to opine in response to the hypothetical questions.
Given our conclusion that this testimony was properly admitted, we further decide that
there was no violation of Garcia’s or Torres’s constitutional rights. (See People v. Jones
(2013) 57 Cal.4th 899, 949; Lapenias, supra, 67 Cal.App.5th at p. 174.)
4. Challenge to CALCRIM 1193
Garcia and Torres each contend that the trial court erred by instructing with
CALCRIM 1193.13 Garcia acknowledges that his defense counsel failed to object to this
instruction and described it as a “step in the right direction.” Nevertheless, Garcia urges
us to address the merits of his appellate claim based on several exceptions to forfeiture
and argues alternatively that we should consider the merits of his challenge under the
rubric of ineffective assistance of counsel. As for CALCRIM 1193 itself, Garcia
contends that the instruction misstates California law by effectively allowing the jurors to
consider the CSAAS evidence as circumstantial proof of molestation. He argues further
that CALCRIM 1193 violated his constitutional rights to a jury trial and due process.
Lastly, he asserts that the error was prejudicial under Chapman v. California (1967) 386
U.S. 18 (Chapman) and Watson.

13
In her briefing, Torres also joins Garcia’s argument on this claim.
24
 Torres similarly acknowledges that her defense counsel did not object to the trial
court instructing her jury with CALCRIM 1193. She argues, however, that we should
consider her challenge to CALCRIM 1193 based on exceptions to forfeiture and,
alternatively, because her counsel was ineffective for failing to object. Regarding the
merits of her challenge to CALCRIM 1193, Torres claims that the instruction improperly
allowed her jury to consider the “CSAAS evidence to diagnose or profile [A.] as a
molestation victim,” misled the jury by allowing it to use the evidence when considering
A.’s believability, and “offer[ed] only the option to find [A.]’s conduct consistent with
that of a molestation victim.” Torres also contends the flawed instruction was not
otherwise cured by any other instruction. Lastly, Torres argues that CALCRIM 1193
violated her constitutional rights to a jury trial and due process, and the error was not
harmless under Chapman or Watson.
The Attorney General counters that Garcia and Torres forfeited their appellate
claims by failing to object to CALCRIM 1193 at trial, their defense counsel were not
constitutionally ineffective, and there was no violation of Garcia’s or Torres’s
constitutional rights.
Regarding forfeiture, we decide that we can consider the merits of Garcia’s and
Torres’s claims despite their failure to object at trial because they contend the challenged
instruction was an incorrect statement of law and affected their substantial rights under
section 1259.14 (See People v. Grandberry (2019) 35 Cal.App.5th 599, 604; People v.
Gomez (2018) 6 Cal.5th 243, 312; People v. Townsel (2016) 63 Cal.4th 25, 59–60.)
Turning to the merits of the challenge to CALCRIM 1193, “[w]e review a claim of
instructional error de novo. [Citation.] The challenged instruction is considered ‘in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.’ ”

14
Because we will address the merits of the challenge to CALCRIM 1193, we
need not address the alternative ineffective assistance of counsel claims.
25
(People v. Rivera (2019) 7 Cal.5th 306, 326.) “We of course presume ‘that jurors
understand and follow the court’s instructions.’ ” (People v. Wilson (2008) 44 Cal.4th
758, 803.)
As Garcia and Torres acknowledge, California courts have upheld CALCRIM
1193 as accurately informing jurors about the limited use of CSAAS evidence and have
rejected various attacks on the instruction’s propriety. (See Lapenias, supra, 67
Cal.App.5th at pp. 175–176 [citing People v. Gonzales (2017) 16 Cal.App.5th 494, 503–
504 & People v. Munch (2020) 52 Cal.App.5th 464, 473–474].) Nevertheless, Garcia
and Torres argue that those decisions did not fully address the alleged flaws in
CALCRIM 1193, specifically the language in the third sentence of the instruction
concerning the victim’s conduct being “ ‘not inconsistent with’ ” that of a molestation
victim.15
We are not persuaded by Garcia’s and Torres’s arguments that the existing
precedent falls short in analyzing the correctness of CALCRIM 1193. We also disagree
with Garcia’s and Torres’s reading of the third sentence of the instruction. As a matter of
logic, that particular conduct by an alleged victim is not inconsistent with having been a
victim of sexual abuse and does not necessarily mean the alleged victim’s conduct is
inevitably consistent with such victimization.
Furthermore, assessing the instruction in light of the entire record, we are not
convinced that there is a reasonable likelihood the juries here applied the instruction in an
impermissible manner. CALCRIM 1193 told the jurors that the CSAAS evidence could
not be considered as evidence that Garcia and Torres “committed any of the crimes
charged against [them].” Thus, the instruction explicitly precluded the use of the CSAAS
evidence to conclude inferentially from A.’s conduct and Dr. Carmichael’s testimony that

15
That sentence reads: “You may consider this evidence only in deciding whether
or not [A.] Doe’s conduct was not inconsistent with the conduct of someone who has
been molested, and in evaluating the believability of her testimony.”
26
Garcia and Torres committed the charged crimes. Relatedly, Dr. Carmichael testified
that CSAAS was not a test to determine the truth of a sexual abuse allegation. In
addition, as discussed, the third sentence of the instruction did not compel a conclusion
that A.’s conduct was consistent with being a victim. Moreover, we are not convinced
that the prosecutor’s comments in closing argument would have caused the juries to
consider the CSAAS in a manner contrary to the trial court’s instruction. The court
instructed the jurors (with CALCRIM No. 200) that they “must follow the law” as the
court explained it, and if the jurors “believe[d] the attorneys’ comments on the law
conflict with [the court’s] instructions, [the jurors] must follow [the court’s] instructions.”
We acknowledge there is a fine line between the impermissible use of CSAAS
testimony to determine guilt and the permissible use of the evidence to evaluate a
victim’s credibility as described in CALCRIM 1193, but California courts have upheld
this distinction. We decline to depart from that precedent under the present
circumstances. In sum, we conclude that the trial court properly instructed the juries with
CALCRIM 1193, and Garcia’s and Torres’s constitutional rights were not violated by
that instruction.
B. Testimony that Torres “ ‘Liked It’ ”
Maria testified that A. said she had told Torres to stop touching her. But Torres
“didn’t want to” stop. When Maria asked A., “ ‘Why didn’t [Torres] stop? What do you
mean?’ ” A. responded “ ‘because [Torres] liked it.’ ” Maria replied by saying
something like “ ‘Okay. We’re just -- we’re gonna go to sleep.’ [¶] And I just -- I was,
like --”
At that point, Torres’s defense counsel interrupted Maria’s testimony saying,
“Your honor, I want to ask the latter part of the previous answer be stricken. It’s
speculation.” The trial court responded, “It will be accepted not for the truth of what was
said but just to explain the conduct of the witness.”

27
 The prosecutor next asked if Maria had tried to clarify with A. if Torres had
touched her when “ ‘wiping’ ” her in the bath “or anything like that.” Maria responded,
“I asked [A.] . . . ‘Did she shower you or did she clean you?’ [¶] And [A.] said, ‘No,
[Torres] . . . touched me because she liked it.’ ” Torres’s defense counsel objected
saying, “Again, same objection.” The trial court responded, “Ladies and Gentlemen, the
last part of that answer about ‘she liked it’ is being admitted not for the truth of the words
that were said, but just to explain what the witness then did after that. You are not to
accept it for the truth of the matter, just to explain the witness’s subsequent conduct.”16
On appeal, Torres contends that the trial court abused its discretion by not
excluding the “ ‘she liked it’ ” statements entirely. She argues that the statements were
A.’s inadmissible lay opinion about Torres’s state of mind and were prejudicial under
Watson with regard to the four lewd or lascivious act convictions (§ 288, subd. (b)(1);
counts 5–8).
An out-of-court statement admitted to show its effect on the listener is “not
hearsay because it [is] not admitted for [its] truth.” (People v. Jablonski (2006) 37
Cal.4th 774, 820; see also Evid. Code, § 1200, subd. (a).) Nonetheless, the nonhearsay
purpose of the statement must be relevant to an issue in dispute. (Jablonski, at pp. 820–
821; see also Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, including
evidence relevant to the credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) “A trial court’s decision to admit or
exclude evidence is reviewed for abuse of discretion, and it will not be disturbed unless
there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner
resulting in a miscarriage of justice.” (People v. Wall (2017) 3 Cal.5th 1048, 1069.)

16
Relatedly, after the close of evidence, the trial court instructed Torres’s jury as
follows: “During the trial, certain evidence was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no other.”
28
 We discern no abuse of discretion in the trial court’s rulings to allow the jurors to
hear Maria’s testimony about A.’s description of Torres’s behavior. In defending against
the charges, Torres disputed the circumstances of the interaction between Maria and A. at
the time of the disclosure and further challenged Maria’s credibility. In her pretrial in
limine motion, Torres asserted that “[A.] may have been influenced by her mother’s
questioning.” At trial, and in the same vein, Torres asserted that Maria aggressively
questioned A. when she first disclosed the abuse, was, at that time, “thinking about what
happened to her[self] when she was young,” “obviously ha[d] concluded that [Torres]
and [Garcia] ha[d] harmed [A.],” and testified “with her mind set already.” Further,
Torres’s defense counsel urged the jurors to “keep [Maria’s mentality] in mind as you
think about her testimony, and how that may have influenced [A.]”
Given the disputed nature and centrality of A.’s initial disclosure, Maria’s role in
that disclosure, and Maria’s credibility, the trial court acted properly when it overruled
Torres’s objections, rejected her request to strike the “ ‘because she liked it’ ” statements,
and limited the jury’s consideration of those statements. The statements provided
relevant context for the conversation between Maria and A. and had probative value on
the issue of why Maria would act the way she did in the face of A.’s answers and whether
Maria was a believable witness. The statements informed the jury’s analysis of Maria’s
conduct both during the disclosure itself and later when she contacted the police about
what A. had told her. Further, by limiting the jury’s use of the statements to an
assessment of Maria’s subsequent conduct, the trial court’s ruling rendered immaterial
Torres’s current assertion that the statements are inadmissible lay opinion testimony
under Evidence Code section 800. Under these circumstances, we conclude the trial
court acted within its discretion when admitting the challenged statements for a limited
purpose.

29
 C. Prosecutor’s Rebuttal Argument on Reasonable Doubt
Garcia contends that in rebuttal argument to his jury, the prosecutor improperly
argued that he failed to create a reasonable doubt (“burden-shifting” claim) and
mischaracterized the reasonable doubt standard by suggesting it could be satisfied by a
reasonable account of the evidence (“mischaracterization” claim). Garcia asserts the
prosecutor’s errors violated California state law and his constitutional right to due
process. He claims further that the errors were prejudicial under any applicable standard,
because the prosecution’s case was not overwhelming and the prosecutor repeatedly
misstated the law just before jury deliberation.17
The Attorney General responds that Garcia forfeited his claims by failing to object
at trial and, regardless, his claims lack merit because the prosecutor did not misstate or
diminish the reasonable doubt standard.
1. Background
Immediately preceding closing arguments, the trial court instructed Garcia’s jury
with the standard instructions on reasonable doubt (CALCRIM No. 220), circumstantial
evidence (CALCRIM No. 224), and adherence to the law as explained by the court
(CALCRIM No. 200).18 The court also reiterated the People’s burden to prove Garcia’s
guilt beyond a reasonable doubt when providing other jury instructions.

17
We do not understand Torres’s statement of joinder in “all other issues and
arguments applicable to her that are raised in the briefs of co-appellant Garcia” as
including this particular claim of error. Torres’s and Garcia’s juries heard separate
closing arguments, and Torres made no argument regarding this issue in her briefing.
18
The reasonable doubt instruction read in part: “A defendant in a criminal case is
presumed to be innocent. This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable
doubt is proof that leaves you with an abiding conviction that the charge is true. The
evidence need not eliminate all possible doubt because everything in life is open to some
possible or imaginary doubt. [¶] In deciding whether the People have proved their case
beyond a reasonable doubt, you must impartially compare and consider all the evidence

30
 During her initial closing argument, the prosecutor argued that the prosecution had
proven its case beyond a reasonable doubt on all counts.
In response, Garcia’s defense counsel challenged the reliability of A.’s testimony,
argued that the CSAAS evidence was insignificant, noted that Dr. Malinek said Garcia
was not a pedophile, and asserted that Garcia’s statement to police was consistent with
other evidence, including A.’s preliminary hearing testimony. Counsel discussed the
prosecution’s burden of proof and argued that only one count of the lesser included
offense of lewd or lascivious act under section 288, subdivision (a), had been proved
beyond a reasonable doubt. Alternatively, counsel argued that if the jurors believed
duress had been proved, then they should find Garcia guilty of a single count of violating
the greater offense charged under section 288, subdivision (b)(1). Counsel urged the
jurors to return not guilty verdicts on the remaining counts and said “this is one of those
cases that turns on reasonable doubt, where reasonable doubt is really important,
reasonable doubt matters more than anything else in the world.”
In rebuttal, the prosecutor began by saying, “Now is my opportunity to discuss the
defense in this case and explain to you why they have not created reasonable doubt. [¶]
First, I’m going to talk about the red herring in this case and then I’m going to address
the defense[’s] arguments to the People’s case and why they did not create reasonable
doubt.” The prosecutor then read a portion of the trial court’s reasonable doubt
instruction, including that “[t]he evidence need not eliminate all possible doubt because

that was received throughout the entire trial. Unless the evidence proves the defendant
guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.” (CALCRIM No. 220.)
The circumstantial evidence instruction told the jurors that before they could rely
on circumstantial evidence to conclude a necessary fact had been proved, they had to be
“convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt.” (CALCRIM No. 220.) The instruction stated further: “Also, before
you may rely on circumstantial evidence to find the defendant guilty, you must be
convinced that the only reasonable conclusion supported by the circumstantial evidence
is that the defendant is guilty.” (Ibid.)
31
everything in life is open to some possible or imaginary doubt.” The prosecutor said that
although it was possible that A. simply saw Garcia and Torres having sex and Garcia
only touched A. one time, “possible” is “not the standard in this case. Anything is
possible. [¶] What is reasonable? That is the standard in this case and it’s the standard
in every courtroom across America. This is not this crazy unattainable standard. What is
reasonable? That’s what you have to ask yourself.”
The prosecutor urged the jurors not to be “thrown off by the defense’s red
herrings. They do not create reasonable doubt.” After arguing why Dr. Malinek was the
“biggest red herring,” the prosecutor reiterated that she would address “the defense’s
arguments to the People’s case and why did they [] not create reasonable doubt.” The
prosecutor then discussed the differences and consistencies in A.’s statements and her
preliminary hearing testimony, and stated “that does not create reasonable doubt.”
The prosecutor then cited a number of disputed evidentiary points and argued they
do “not create reasonable doubt” and stated, “What is reasonable? There’s no way that
[A.] is making this up and can keep up this lie.”
The prosecutor then said: “The defense did not create reasonable doubt in this
case. All of their defense, sure, it’s possible. That’s not the standard. You saw [A.] and
what she went through and what she told you. [Garcia] even admitted it, but we know
from his personality test that he can’t get himself there.” At that point, Garcia’s defense
counsel objected “to the use of the term ‘create reasonable doubt.’ ” The trial court
overruled the objection. When defense counsel attempted to elaborate on his objection,
the court immediately reiterated its ruling.
The prosecutor continued, stating that Garcia had admitted to touching A. in two
places and the lesser included offense (under section 288, subdivision (a)) did not apply
given the evidence supporting the greater offense. The prosecutor then concluded her
rebuttal argument by saying: “The defense did not create reasonable doubt. And [A.]
alone, her testimony alone shows that [Garcia] is guilty beyond a reasonable doubt, but
32
all of the other evidence -- his admission, [Torres]’s coverup, [A.]’s demeanor, the way
she disclosed it -- all of that shows you that he’s guilty beyond a reasonable doubt. [¶]
And I ask that you hold him accountable for making her go through what no four-year-
old should ever go through.”
2. Legal Principles
The prosecution has the burden to prove the charged crimes beyond a reasonable
doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5; People v. Centeno (2014) 60 Cal.4th
659, 672 (Centeno); § 1096.) Although a defendant may present evidence to suggest a
failure of proof (see, e.g., People v. Hendrix (2022) 13 Cal.5th 933, 940) or to raise a
reasonable doubt (see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1136), the
defendant is not required to present any evidence and may simply rely on the state of the
prosecution’s evidence. (See People v. Hill (1998) 17 Cal.4th 800, 831–832 (Hill);
People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The jury, “[s]etting aside the
incredible and unreasonable, . . . evaluates the evidence it deems worthy of consideration.
It determines just what that evidence establishes and how much confidence it has in that
determination. The standard of proof is a measure of the jury’s level of confidence. It is
not sufficient that the jury simply believe that a conclusion is reasonable. It must be
convinced that all necessary facts have been proven beyond a reasonable doubt.”
(Centeno, at p. 672.)
“It is considered misconduct to misstate the law to the jury, and bad faith is not
required. [Citation.] But a prosecutor is allowed to vigorously argue the case and is
afforded ‘significant leeway’ in discussing the facts and the law in closing argument.”
(People v. Azcona (2020) 58 Cal.App.5th 504, 516.)
“Generally, ‘ “[t]o preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the improper argument.” ’ [Citation.] A failure to ‘object and
request an admonition will be excused if doing either would have been futile, or if an
33
admonition would not have cured the harm.’ [Citation.] ‘[T]he absence of a request for a
curative admonition does not forfeit the issue for appeal if “the court immediately
overrules an objection to alleged prosecutorial misconduct [and as a consequence] the
defendant has no opportunity to make such a request.” ’ ” (People v. Mendoza (2016) 62
Cal.4th 856, 905.)
“When attacking the prosecutor’s remarks to the jury, the defendant must 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. [Citations.] 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.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
“ ‘Prosecutorial misconduct requires reversal when it “so infect[s] a trial with
unfairness [as to] create a denial of due process. [Citations.] Conduct by a prosecutor
that does not reach that level nevertheless constitutes misconduct under state law, but
only if it involves the use of deceptive or reprehensible methods to persuade the court or
jury.” ’ ” (People v. Peterson (2020) 10 Cal.5th 409, 464.)
Prosecutorial misconduct that violates state law is harmless unless it is reasonably
probable that a result more favorable to the defendant would have been reached in the
absence of the error. (People v. Wallace (2008) 44 Cal.4th 1032, 1070–1071; see also
Watson, supra, 46 Cal.2d at p. 836.) Federal constitutional error is harmless if, beyond a
reasonable doubt, the error did not affect the outcome of the trial. (People v. Cook (2006)
39 Cal.4th 566, 608; see also Chapman, supra, 386 U.S. at p. 24.)
“[A]n appellate court reviews a trial court’s ruling on prosecutorial misconduct for
abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 213; People v. Peoples
(2016) 62 Cal.4th 718, 792–793.)

34
 3. Analysis
Regarding forfeiture, Garcia acknowledges that his defense counsel objected only
once (late in the rebuttal argument) to the prosecutor’s statements about the defense not
having created a reasonable doubt. Nevertheless, Garcia asserts that his challenge to the
prosecutor’s use of the alleged burden-shifting language throughout the rebuttal argument
should be excepted from forfeiture because any earlier objection would have been futile
given the trial court’s ruling when his counsel finally objected. Under the present
circumstances, we agree. Given the similarity of the prosecutor’s statements throughout
her rebuttal argument, we can presume the trial court would have overruled any earlier
objection by Garcia’s counsel. (See People v. Zambrano (2004) 124 Cal.App.4th 228,
237.)
Garcia similarly acknowledges that his defense counsel failed to object to the
alleged mischaracterization of the reasonable doubt standard. He nonetheless urges us to
address the merits of his claim because we have the discretion to do so and can eschew
forfeiture to forestall a claim of ineffective assistance of counsel. Alternatively, he
argues that we should consider the merits of his claim under the rubric of ineffective
assistance of counsel. By contrast to Garcia’s burden-shifting claim, we decide that his
mischaracterization claim is forfeited by the failure to object to the prosecutor’s “[w]hat
is reasonable” statements and request an admonition. (See People v. Morales (2001) 25
Cal.4th 34, 43–44; Centeno, supra, 60 Cal.4th at p. 674.) Nevertheless, given that both
parties have addressed the merits of the mischaracterization claim in their briefing, we
will assume arguendo that the claim was preserved for our review and decide whether
any relief is warranted.
Turning to the merits of Garcia’s claims, section 1096 “expressly provides that a
‘reasonable’ doubt is not a mere ‘ “possible” ’ or ‘ “imaginary” ’ doubt.” (Centeno,
supra, 60 Cal.4th at p. 672.) However, “it is error for the prosecutor to suggest that a
‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.” (Ibid.,
35
italics omitted.) “It is likewise error to state that ‘a defendant has a duty or burden to
produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.] It is,
and remains, the prosecutor’s burden to prove the case. If the defense chooses to produce
evidence, the jury must, of course, consider it as part of the complete record before it. To
that end, the prosecution can surely point out that interpretations proffered by the defense
are neither reasonable nor credible. Nevertheless, even if the jury rejects the defense
evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the
prosecutorial burden. The prosecution cannot suggest that deficiencies in the defense
case can make up for shortcomings in its own.” (Id. at p. 673; see also Hill, supra, 17
Cal.4th at pp. 831–832.)
“To determine whether a prosecutor has committed reversible misconduct in this
context, we examine (1) whether it was reasonably likely that the prosecutor’s statements
misled the jury on reasonable doubt and (2) whether there is ‘a reasonable probability that
the prosecutor’s argument caused one or more jurors to convict defendant based on a
lesser standard than proof beyond a reasonable doubt.’ ” (People v. Johnsen (2021) 10
Cal.5th 1116, 1165–1166 (Johnsen).)
Here, the prosecutor’s statements asserting the defense had failed to create a
reasonable doubt and explaining the difference between a possible doubt and a reasonable
doubt are somewhat ambiguous. Additionally, the prosecutor did not clearly articulate
that the burden to prove the charges beyond a reasonable doubt is always on the People
and that the defense does not have to prove anything. Given the ambiguity in the
prosecutor’s rebuttal statements, we will assume arguendo that the statements were
reasonably likely to have misled the jurors to think that the defense had a duty to
establish a reasonable doubt and the prosecution’s burden turned on whether its proof
was reasonable.
Notwithstanding this assumption, we are not convinced that there is a reasonable
probability the prosecutor’s statements caused a juror to convict Garcia on a standard
36
lower than beyond a reasonable doubt. On the same day as the rebuttal argument, the
trial court correctly instructed the jury on the reasonable doubt standard and directed the
jury to follow the court’s instructions in the event of any conflicting statements by the
attorneys. We presume, absent contrary indications, that the jurors followed the
instructions given by the court. (See People v. Fayed (2020) 9 Cal.5th 147, 192; see also
People v. Mayfield (1993) 5 Cal.4th 142, 179.)
Further, the prosecutor’s statements were principally directed at the relative
weakness of the defense’s evidence and argument when considered in light of the entire
record, rather than expressly suggesting that the defense bore a burden to show
reasonable doubt to obtain an acquittal or that the prosecution did not have to prove every
element of the charged crimes beyond a reasonable doubt. Additionally, the prosecutor
stated in both the initial closing argument and the rebuttal argument that the evidence
proved Garcia’s guilt of the charges beyond a reasonable doubt. Thus, this is not a case
where the prosecutor’s arguments consistently attempted to shift or reduce the People’s
burden of proof. Furthermore, we do not consider the case against Garcia to be a
particularly close one. Although Garcia denied sexually abusing or penetrating A., he
admitted touching her at Torres’s urging and described A. as wanting to kiss him and
touch his penis. When viewed along with A.’s statements about what transpired and the
rest of the prosecution’s evidence, the case against Garcia was strong.
On this record, we conclude that there is no reasonable probability the
prosecutor’s erroneous statements caused any jurors to convict Garcia based on a lesser
standard of proof than proof beyond a reasonable doubt. (See Johnsen, supra, 10 Cal.5th
at p. 1168.) Moreover, the prosecutor’s statements did not infect the trial with such
unfairness that Garcia’s constitutional rights were violated. (See People v. Seumanu
(2015) 61 Cal.4th 1293, 1345.) Hence, we will not reverse the judgment against Garcia
because of the prosecutor’s statements in rebuttal argument.

37
 D. Cumulative Error
Having concluded ante that Torres’s claims challenging her convictions are
without merit, we in turn reject her claim of cumulative prejudice resulting from the
asserted errors. There is no prejudicial error to cumulate. (See People v. Hensley (2014)
59 Cal.4th 788, 818 (Hensley).)
We similarly reject Garcia’s claim of cumulative error and prejudice. Although
we assumed error regarding the prosecutor’s statements in rebuttal argument, we have
determined that Garcia was not prejudiced and discerned no other error with regard to
Garcia’s convictions. Thus, there is no prejudicial error to cumulate for Garcia. (See
Hensley, supra, 59 Cal.4th at p. 818.)
E. Claims Related to Sentencing
As described in the introduction to part II. of this opinion, ante, Torres and Garcia
raise multiple claims on appeal related to their sentencings. We will address their
requests (set forth in supplemental briefing) for remand based on recent changes to
section 654 made by Assembly Bill 518. Because we decide that a remand for full
resentencing under current section 654 is appropriate for both Garcia and Torres, we do
not address Garcia’s or Torres’s other sentencing claims. Garcia and Torres may raise
any of their remaining sentencing claims in the trial court during resentencing, including
any issues regarding the applicability of Senate Bill 567 and Assembly Bill 1869, the trial
court’s order requiring Torres to submit to an HIV test, and the imposition of fines, fees,
or assessments.
Furthermore, because we vacate both Garcia’s and Torres’s sentence, we will not
order any correction to the abstracts of judgment or clerk’s sentencing minutes, although
we agree with the parties that there are a number of errors in those documents. On
remand, the trial court will generate new abstracts of judgment and minute orders based
on its resentencing and will exercise its usual prerogative to ensure that the abstract of

38
judgment and sentencing minutes comport with the sentence pronounced. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
1. Background
During the jury instruction conference, the trial court explained its understanding
that the prosecution had decided to charge counts 5 through 8 (§ 288, subd. (b)(1)) as
“alternative,” “lesser-related offenses” for the acts charged in counts 1 and 2 (§ 288.7,
subd. (a) [sexual intercourse or sodomy]) and counts 3 and 4 (§ 288.7, subd. (b) [oral
copulation or sexual penetration]). None of the parties disputed this summary. Further,
the parties and the court agreed that both juries would be instructed on lesser included
offenses for counts 5 through 8 but no lesser included offenses would be provided to the
juries for counts 1 through 4.
The trial court instructed both juries on lesser offenses only as to the crimes
charged in counts 5 through 8. The court did not provide either jury any instruction
regarding the “alternative” nature of counts 1 through 4 and counts 5 through 8, and the
verdict forms permitted the juries to return verdicts on all of the counts. In addition, the
court’s instructions for counts 1 and 2 told the jurors that the People had to prove “[t]he
defendant engaged in an act of sexual intercourse with [A.] Doe.” Similarly, the
instructions for counts 3 and 4 told the jurors that the People had to prove “[t]he
defendant engaged in an act of oral copulation or sexual penetration with [A.] Doe.”
Neither these instructions nor the related verdict forms specified what particular act
committed by Garcia and/or Torres had to be proved by the prosecution to satisfy counts
1 through 4. Likewise, the instructions and verdict forms for counts 5 through 8 did not
specify the relevant lewd or lascivious act that had to be proved by the prosecution.
During closing argument to Garcia’s jury, the prosecutor argued that Garcia was
guilty of counts 1 through 4 and then stated that, for counts 5 through 8, if the jurors “find
that something happened, there was touching, but if you don’t find that it rises to the level
of legal penetration, then you can find [Garcia] not guilty of counts 1 through 4 and still
39
find him guilty of counts 5 through 8. Or if you find there is a legal penetration by a
penis, oral copulation, and digital penetration, he’s also guilty of touching and molesting,
because naturally, if you are having a four-year-old hump your penis, you’re also guilty
of counts 5 through 8.”
Similarly, during closing argument to Torres’s jury, the prosecutor argued that
Torres was guilty of counts 1 through 4 and said that counts 5 through 8 involved sexual
touching without any requirement of penetration. The prosecutor further explained that if
the jurors “think [Torres] is guilty of count 1 through 4, the legal penetration, sexual
penetration, digital penetration and oral cop[ulation], she’s also guilty of counts 5 through
8, because the penetration is also a sexual touching. Guilty of counts 1 through 4, also
guilty of counts 5 through 8 automatically. But if you think that there’s no penetration
but you think that there is a sexual touching or oral copulation then she could be not
guilty of counts 1 and 4, and still be guilty of counts 5 through 8, and that’s because you
just didn’t think there was a legal penetration. And again, that it has to be oral copulation
or touching for a sexual purpose. And again, we know it happened twice. Once in the
apartment; once in the RV. And there’s different things going on. It’s legal penetration,
digital penetration, copulation and legal penetration in both places. She is guilty of
counts 5 through 8.”
As discussed ante (see part II.C.1.), Garcia’s defense counsel urged the jury to
find Garcia guilty of only one count for counts 5 through 8 and not guilty on all
remaining counts.
Torres’s defense counsel urged Torres’s jury to “say not guilty on the penetration”
and contended that there was no evidence of sexual arousal as to Torres having put
Desitin cream on A. Counsel also asserted that if the jurors felt Torres “went out of
bounds by putting Desitin on [A.], then hold her accountable for the battery, which is one
of the less[e]rs that you have been instructed [on], but she did not molest [A.] All she did
was put [on] cream.”
40
 Garcia’s jury found him guilty on all counts. Torres’s jury found her guilty on
count 1 and counts 3 through 8. The jury failed to reach a unanimous verdict on count 2
(one of the two sexual intercourse counts), and the trial court dismissed it. Neither
Garcia nor Torres has claimed (either at trial or on appeal) that their convictions on
counts 5 through 8 are improper multiple convictions under section 954. (See People v.
Aguayo (2022) 13 Cal.5th 974, 981–982; see also People v. White (2017) 2 Cal.5th 349,
355.)
At Garcia’s December 2018 sentencing, defense counsel stated that he had
“explained to Mr. Garcia that consecutive sentencing is mandatory on Counts One
through Four.” The trial court did not correct this statement.19 Counsel also said that he
agreed with the probation officer’s report that the punishments on counts 5 through 8
should be stayed pursuant to section 654.20
In accord with the probation officer’s recommendation, the trial court imposed on
Garcia a total sentence of 80 years to life comprising consecutive terms of 25 years to life
on counts 1 and 2 (§ 288.7, subd. (a)), plus consecutive terms of 15 years to life on counts
3 and 4 (§ 288.7, subd. (b)). The court also imposed stayed terms of 10 years on each of
counts 5 through 8 (§ 288, subd. (b)(1)), pursuant to section 654. The trial court did not

19
Counts 1 through 4 (charged under section 288.7, subdivisions (a) and (b)) are
not offenses specified in subdivision (e) of section 667.6, for which mandatory
consecutive sentencing is required.
20
The probation officer’s report for Garcia stated the following: “[W]hile noting
Counts Five, Six, Seven and Eight (violent sex crimes requiring consecutive sentencing
pursuant to Section 667.6[, subdivision] (d) []) were filed as alternate Counts as to Counts
One, Two, Three, and Four, punishments in the former Counts are recommended stayed
pursuant to Section 654 of the Penal Code.” The probation report also said: “In view of
the case being aggravated, as the conduct was committed against a young vulnerable
victim, and involved behavior where force was used, with the assaults having occurred on
multiple dates, it is recommended Counts One, Two, Three, and Four be consecutive to
one another, for a total indeterminate term of 80 years to life.”
41
state any reasons for imposing the consecutive sentences on counts 1 through 4 or the
upper term of 10 years on counts 5 through 8.
At Torres’s December 2018 sentencing, a probation department representative
acknowledged that, contrary to a statement in the probation officer’s report, the fact that
the “assaults [against A.] occurred on multiple dates [] is actually not an
aggravator . . . just a reason to go consecutive.” The representative also stated that the
listed aggravating factor noting “force” as an element of the offense “should be deleted
[from the probation report] as well.”21 Furthermore, the representative explained: “So
the [section] 288.7[, subdivision] (a) and [subdivision] (b) counts are not specifically
listed under [section] 667.6. But based on the alternate charges of Counts Five, Seven,
and Eight being listed, it appears that those counts could be sentenced pursuant to
[section] 667.6. [¶] However, to stay on the safe side, I would recommend that they all
be sentenced, including Count Six, all be sentenced under [section] 1170.”

21
Torres’s probation report stated the following: “[W]hile noting Counts Five,
Seven and Eight were filed as alternate Counts as to Counts One, Three, and Four,
punishments in the former Counts are recommended stayed pursuant to Section 654 of
the Penal Code. In view of the case being aggravated due to the vulnerability of the
victim, that the assaults occurred on multiple dates, and with behavior that involved
force, the aggravated term of 10 years is selected as to Count Six. It is further
recommended the indeterminate term of 25 years to life as to Count One be consecutive
to Count Six, along with Counts Three and Four (each 15 years to life) also consecutive,
in view of the above, for a total term of 55 years to life consecutive to 10 years. Should
the Court decide to impose a different sentence, it is noted Count Six is a violent sex
offense, and pursuant to Section 667.6[, subdivision] (d) of the Penal Code, the term (10
years) ‘shall be served consecutively to any other term of imprisonment’ and
additionally, ‘any other term imposed subsequent to that term (10 years) shall not be
merged.’ ” Additionally, in a list of circumstances in aggravation attached to the
probation report, the probation officer further noted that Torres took advantage of a
position of trust or confidence to commit the offense (Cal. Rules of Court, rule
4.421(a)(11)) and that Torres’s “prior convictions . . . are numerous or of increasing
seriousness.” (Id., rule 4.421(b)(2).) However, the probation report also stated that
Torres had no prior felony convictions and only one prior misdemeanor conviction for
petty theft in 2004.
42
 Torres’s defense counsel asserted that section 654 applied to counts 5 through 8,
“given how the case was charged and argued,” as well as to counts 3 and 4 (relative to
count 1), “given the lack of specific findings or anything like that with regards to what
occurred.” Counsel summed up his position by saying “it’s 25 to life [on count 1] and
everything else is either [section] 654 or concurrent.” The prosecutor responded, “The
jury did find [Torres] guilty of all of the lessers [(i.e., counts 5 through 8)]. So she could
be sentenced consecutively as to one of them, which would replace Count Two” (on
which the jury could not reach a unanimous verdict and which had been dismissed at the
district attorney’s request).
The trial court said “the jury was instructed [] that Counts Five, Six, Seven, and
Eight were lesser offenses to Counts One, Two, Three and Four . . . . And so I do think
Count Six is a lesser offense.”22 After holding an unreported bench conference, the court
stated further: “The jury was instructed with regard to the lessers, the charge of lessers.
Given that the jury did not acquit [Torres] of the greater in Count Two, I think it was
more appropriate to assume that the charge of Count Six was [section] 654 with regard to
Counts One, Three and Four.”
The court imposed on Torres a total sentence of 55 years to life comprising 25
years to life on count 1 (§ 288.7, subd. (a)), plus consecutive terms of 15 years to life on
counts 3 and 4 (§ 288.7, subd. (b)). The court also imposed stayed terms of 10 years on
each of counts 5 through 8 (§ 288, subd. (b)(1)), pursuant to section 654. The trial court
did not state any reasons for imposing the consecutive sentences on counts 1, 3, and 4 or
the upper term of 10 years on counts 5 through 8.

22
This statement by the trial court does not accurately reflect the jury instructions.
As discussed above, although counts 5 through 8 were deemed “alternative,” lesser
related offenses to counts 1 through 4, the trial court only instructed Torres’s jury on
lesser offenses for counts 5 through 8, not for counts 1 through 4.
43
 On appeal, the Attorney General raises (for the first time in his supplemental
respondent’s brief) a “problem” with Torres’s sentencing. The Attorney General
contends “the court imposed and stayed four terms under Penal Code section 654, when it
should have imposed and stayed only three of them because Torres was being doubly
punished on only three rather than on four of the [c]ounts. Under the sentencing as it
currently exists, Torres is not being punished at all for one of the [c]ounts of forcible
lewd and lascivious conduct.” Torres has not addressed this issue in her briefing.
2. Analysis
As described above, there appear to have been a number of misconceptions held
by the parties and/or the trial court at the sentencings for both Garcia and Torres. For
example, Garcia’s counsel stated that counts 1 through 4 were required to be sentenced
consecutively, the probation reports included uncorrected errors regarding aggravation,
and the trial court described counts 5 through 8 as having been presented to the jury as
“lesser offenses” to counts 1 through 4. Nevertheless, for the reasons stated below, we
conclude that both Garcia and Torres must be resentenced in full. Therefore any errors in
the previous sentencings can be remedied at resentencing.
Effective January 1, 2022, section 654 was amended by Assembly Bill 518.
(Stats. 2021, ch. 441, § 1.) As amended, section 654, subdivision (a), provides in
relevant part, “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (Italics added.)
Previously, where section 654 applied, the sentencing court was required to impose the
term that “provides for the longest potential term of imprisonment” and stay execution of
the other term. (§ 654, former subd. (a).)
The Attorney General concedes that the recent legislative changes to sections 654
apply to Garcia and Torres because their judgments are not yet final. We agree. (See

44
People v. Mani (2022) 74 Cal.App.5th 343, 379; People v. Sek (2022) 74 Cal.App.5th
657, 673.)
Regarding Garcia’s request for a remand for resentencing under current section
654, the Attorney General argues that remand is not necessary because “[t]here is simply
no reasonable basis for the court to have exercised discretion to impose sentence on
Counts 5 through 8 and stay the terms on Counts 1 through 4, when Garcia’s conduct far
exceeded what would be required for a forcible lewd touching.”
Regarding Torres’s request for a remand under current section 654, the Attorney
General states no position. Instead, the Attorney General notes his unrelated position that
Torres’s case should be remanded for resentencing because the trial court committed an
error by imposing two fines under section 290.3. The Attorney General also sets out the
potential error in failing to impose any sentence on Torres for one of the lewd act
convictions caused by the trial court having stayed all punishment on counts 5 through 8.
At the time the trial court sentenced Garcia and Torres, it had no discretion to
choose which counts to stay under section 654. (§ 654, former subd. (a).) Generally,
when a change in the law confers previously unavailable discretion on a trial court, “the
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see also
People v. Jones (2019) 32 Cal.App.5th 267, 273; People v. McVey (2018) 24 Cal.App.5th
405, 418.) We review the sentencing court’s statements and sentencing decisions to infer
what its intent would have been. (Jones, at p. 273.)
Under the present circumstances, we decide that a remand for resentencing is
proper for both Garcia and Torres. Although the probation reports noted a few
circumstances in aggravation for Garcia and Torres, the trial court did not detail any
specific aggravating circumstances supporting its imposition of the upper term on counts
5 through 8. Likewise, the court did not provide any explanation for its imposition of
45
consecutive sentences on counts 1 through 4 for Garcia or on counts 1, 3, and 4 for
Torres.
It is, of course, understandable that the trial court gave no indication of how it
would exercise its discretion under current section 654, which had not yet been enacted.
Although the court’s imposition of consecutive and upper term sentences for Garcia and
Torres provides some indication that the trial court might choose to exercise its newly
conferred discretion under section 654 by electing to stay the counts with the shorter
terms of imprisonment, the sparse record here does not clearly indicate that the court
would take that approach at a resentencing.
Accordingly, we agree with Garcia and Torres that remand is appropriate so the
trial court may fully resentence each of them anew under the new law. (See People v.
Buycks (2018) 5 Cal.5th 857, 893.) At resentencing the trial court will have the
opportunity to exercise its discretion to apply current section 654. In addition, the People
may raise any argument regarding the impropriety of staying the punishment for all of
Torres’s convictions on counts 5 through 8. We express no opinion on how the court
should exercise its sentencing discretion.
Furthermore, upon remand the trial court may revisit all its prior sentencing
decisions, including the application of section 1170, subdivision (b), as amended by
Senate Bill 567. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424–425; People v.
Jones (2022) 79 Cal.App.5th 37, 46.)
Garcia and Torres may raise in the trial court their arguments challenging their
sentences which this court has not addressed in light of its decision to vacate their
sentences.
III. DISPOSITION
The judgment against Garcia is reversed, his sentence is vacated, and the matter is
remanded to the trial court solely for resentencing under current law and consistent with
this opinion. Garcia’s convictions are affirmed.
46
 The judgment against Torres is reversed, her sentence is vacated, and the matter is
remanded to the trial court solely for resentencing under current law and consistent with
this opinion. Torres’s convictions are affirmed.

47
 ______________________________________
Danner, J.

WE CONCUR:

____________________________________
Bamattre-Manoukian, Acting P.J.

____________________________________
Lie, J.

H046635
People v. Garcia et al.