People v. Mondragon CA6

Filed 4/17/23 P. v. Mondragon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047341
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. F1870372)

v.

FERNANDO RAMIREZ
MONDRAGON,

Defendant and Appellant.

Defendant Fernando Ramirez Mondragon was convicted by a jury of multiple
counts of committing lewd and lascivious acts on two children—his stepdaughter and her
cousin. (Former Pen. Code, § 288.)1 On appeal, he argues that the trial court erred by
admitting insufficiently authenticated Facebook messages that were not adoptive
admissions, instructing the jury that it could consider evidence of any charged offense as
evidence of his propensity to commit other charged offenses, and instructing the jury that
it could consider expert testimony as to Child Sexual Abuse Accommodation Syndrome
(CSAAS) to evaluate the witnesses’ believability. Mondragon further argues that the
prosecutor committed misconduct by vouching for one of the complaining witnesses, that

1
Unspecified statutory references are to the Penal Code.
cumulative error requires reversal of his convictions, and that his fines and fees must be
stayed because of his inability to pay. We affirm the judgment.
I. BACKGROUND
A. The Operative Information
On December 18, 2018, the Santa Clara County District Attorney filed an
amended information charging Mondragon with five counts of committing a lewd and
lascivious act on a child (victim S.D.) under the age of 14 by force, violence, duress,
menace, or fear (former § 288, subd. (b)(1), amended by Stats. 1995, ch. 890, § 1;
counts 1-5), two counts of committing a lewd and lascivious act on a child (victim S.D.)
under the age of 14 or 15 (former § 288, subd. (c)(1), amended by Stats. 1998, ch. 925,
§ 2; counts 6-7), and one count of committing a lewd and lascivious act on a child (victim
H.D.) (former § 288, subd. (a), amended by Stats. 1998, ch. 925, § 2; count 8). Counts 1
through 5 were alleged to have been committed between January 16, 1997, and
January 15, 2003; counts 6 and 7 were alleged to have been committed between
January 16, 2003 and January 15, 2005; and count 8 was alleged to have been committed
between January 1, 2000 and December 31, 2003. As to all counts, it was alleged that
Mondragon had been convicted in the present case or in another case of committing an
offense against multiple victims within the meaning of the “One Strike” law (§ 667.61,
subds. (b) & (e)).
B. The Trial
1. Counts 1-7
When N.H. first met Mondragon, N.H. already had three daughters from a prior
relationship, including S.D., the middle child, who was born in 1989.2 N.H. married
Mondragon in 1996, and the family moved with N.H.’s mother to a house in Gilroy.

2
S.D. was 30 years old at the time of Mondragon’s trial.

2
Both bathrooms were on the first floor, and there were two bedrooms on each floor.
N.H.’s mother stayed in one of the downstairs bedrooms, and S.D. and her two sisters
stayed in one of the upstairs bedrooms.
In 1997, Mondragon stopped working for about a year because he injured his
hand. Mondragon would often be left home alone with the children, though N.H.’s
mother was also “always there” and was “in and out all day.” N.H.’s mother helped dress
the children in the morning, sent them to school, and was usually at home when the
children returned. N.H. started work at a barbershop on weekdays at 9:00 a.m. and did
not get back until 6:30 p.m., and she also worked on Sundays. As N.H. was often busy,
she “always” had someone helping with the children. Other relatives and close friends, in
addition to N.H.’s mother, sometimes stayed at the house. Starting in 1998, Mondragon
started to work at the same barbershop as N.H.
N.H. thought that Mondragon treated S.D. differently from her two sisters.
Mondragon always said that S.D. was the “dirtiest” and “laziest” out of N.H.’s three
daughters, and he was always picking on her and teasing her; S.D. was more rebellious
and always had an attitude. N.H. and Mondragon had three other children together, born
in the first three years of their marriage.
S.D. was afraid of Mondragon. He yelled and physically disciplined her—pushing
her, spanking her, and pinching her hard enough to leave bruises. Mondragon also
singled S.D. out and “nitpick[ed]” at her—he always told her to clean and take care of her
brothers, and she was tasked with more chores than her siblings. S.D. complained to
N.H. and told her that Mondragon was physically hitting her.3 Sometimes Mondragon
would hit her until she cried, and he would tell her to go upstairs to her bedroom so
nobody would see her crying.

3
N.H. testified that she never saw injuries on S.D., and S.D. never told her about
any physical abuse until S.D. disclosed her abuse to the police.
3
 Mondragon first touched S.D. inappropriately when she was seven years old,
around when Mondragon and N.H.’s first child was born. S.D. had just gotten out of the
shower. Mondragon was waiting in S.D.’s bedroom and had pornographic magazines on
the bed. He tried to show them to S.D. and asked her if “[her] boobs [look] like this?”
This made S.D. uncomfortable, but Mondragon persisted, telling her, “Let me see. Take
off your towel.” When she didn’t comply, Mondragon “forcefully [took] it off.” S.D.
tried to cover herself using her hands, but Mondragon moved her hands away and
“grabb[ed]” her breasts, saying, “Look, . . . you’re growing. . . . [H]ow fast you’re
growing.” He told S.D. that she would have “really big boobs when [she grew] up.”
Mondragon made S.D. bend over so he could examine her buttocks, and he spread her
buttocks apart. S.D. cried. Mondragon seemed “nervous, but he was trying to be kind
about it.” He told S.D. to stop crying and that what he was doing was “okay” because he
was her “dad.” But he also told her not to tell her mother. Before he left, Mondragon
told S.D. to get changed and to “hurry up to start cleaning.”
The next week, Mondragon similarly accosted S.D. after she emerged from the
shower. These post-shower incidents continued on a weekly basis for the next two years,
“as many times as he [could] do it without [S.D.’s mother] being around.” Mondragon
would either wait upstairs for S.D. to finish showering, or he would enter the bathroom.
Sometimes he would watch S.D. shower. S.D. initially tried to avert contact in her
bedroom by changing her clothes in the bathroom, but Mondragon would “always try to
find his way” to open the door while she was changing. S.D. also tried to run past
Mondragon, but he would either stop her or yell at her if she made it past him.
Oftentimes, Mondragon used S.D.’s younger half-brother as an excuse to intrude
on her in the bathroom: he would open the door to send in her brother, ostensibly so S.D.
could bathe the younger child; Mondragon would stare at S.D. while she was naked and
sometimes touch her.

4
 Mondragon would sometimes take S.D. into the other bathroom, next to the
kitchen. He would hit and yell at her to get her into the bathroom, and he would shut the
door and lock it once inside. Mondragon would make her take her shirt off and would
touch her breasts, telling her he needed to see if her breasts had grown. Mondragon
would also try to take S.D.’s pants off, but she would fight him off and yell at him.
Mondragon would yell back that S.D. was the one who was doing something wrong
because she should not be yelling at him. S.D. estimated that Mondragon pulled her into
the kitchen bathroom “a good 20 times” over a period of several years.
Starting when S.D. was around 10 years old, Mondragon began to penetrate her
vagina with his fingers. Typically, Mondragon would run upstairs in the morning, using
the opportunity to catch S.D. still in bed, hit her buttocks, and push his fingers into her
vagina “really hard.” By that time, S.D.’s older sister was using another bedroom, and
S.D.’s younger sister often woke earlier. Even though S.D. was always clothed,
Mondragon would use enough force that even over her underwear and pants, his fingers
would penetrate through.4 S.D. tried to prevent Mondragon from touching her by getting
up as soon as she heard his footsteps on the stairs. Or, if she was already awake, she tried
to walk past him. S.D. would shout at Mondragon to stop touching her, but he would
either laugh or walk away. Sometimes, Mondragon would strike and threaten S.D.; he
said that he would hurt her mother and her sisters, and he asked her if she wanted her
younger siblings to grow up without a father. S.D., who felt abandoned by her own
father, believed Mondragon’s threats. These incidents continued until S.D. was in high
school.

In 2017, S.D. told officers that there was no “skin-to-skin” contact between
4

Mondragon and herself.

5
 Mondragon had S.D. drink alcohol for the first time when she was 12 years old.
He regularly encouraged her to get drunk, giving her “Mad Dog” and telling her it would
get her drunk faster, and then touching her “the most” once she was drunk and less able
to resist as he groped her breasts. S.D. drank “very often,” perhaps every other week.
Several times when S.D. was 13 or 14 years old, S.D. would drink alone with
Mondragon. Mondragon would stay sober and tell S.D. that if she wanted to drink, the
only way for her to do so would be in his room so her sisters would not see. S.D.
sometimes used physical force or raised her voice to resist Mondragon’s advances, but no
one ever came into the room.
By the time S.D. turned 13 years old, the shower incidents were less frequent, as
Mondragon was working more and was going to school. Mondragon still grabbed her
breasts and buttocks every few weeks when S.D. was drunk or N.H. was not around.
S.D., however, was better able to physically resist Mondragon, and by the time she was
16 or 17 years old, she was more aggressive and assertive in fighting off Mondragon’s
advances. Mondragon stopped touching S.D. inappropriately when she was 17 or 18
years old.
N.H. had always had her suspicions about Mondragon, but he would “swear on
[their] children’s lives that he was not doing anything.” Mondragon repeatedly told N.H.
that she was crazy for thinking he was abusing her children and that she needed help.
N.H., however, noticed that Mondragon was always walking out of the bathroom where
S.D. was, or knocking on the bathroom door when S.D. was in the bathroom. One time,
when S.D. was five years old, Mondragon told N.H. that S.D. had had a fever and had
thrown up, and when N.H. went upstairs, S.D. was not wearing a shirt. Mondragon said
that he had put S.D.’s shirt in the wash, but N.H. did not think that S.D. had a fever. S.D.
also said that “ ‘something went in my mouth.’ ” N.H. asked Mondragon what he did,
and he said that N.H. was “sick” and that if she thought he had done something wrong,

6
she should go ahead and call the police. Another time, N.H. came in and saw Mondragon
banging on the bathroom door, and N.H. could hear S.D. crying “No. No. Papi.”
S.D. never told N.H. that Mondragon was touching her inappropriately, even
though N.H. sometimes asked her. Usually when N.H. asked S.D. about Mondragon, he
was nearby—Mondragon would stare at S.D. and tell her not to “fucking say anything.”
2. Count 8
H.D., born in 1991, was S.D.’s younger cousin.5 H.D. and S.D. were “very close”
growing up. H.D. typically saw S.D. every weekend and would go to S.D.’s house in
Gilroy to play. H.D. considered Mondragon an uncle.
At age ten or eleven, H.D. spent a night at S.D.’s house and fell asleep in the
living room on a mattress on the floor.6 S.D. was sleeping beside her. H.D. woke up to
Mondragon trying to touch her breasts over her clothes. H.D. turned aside to try get
Mondragon to stop, but he “kept trying to go again.” H.D. turned to her other side, and
Mondragon stopped and backed away. Mondragon’s brother, who was in the hallway,
asked Mondragon if “they” were asleep, and Mondragon answered no.
S.D. recalled the incident; she remembered that she had seen Mondragon come out
of his room, so she tried to cover her body to keep him from touching her. S.D. then saw
Mondragon try to touch H.D.’s breasts. Mondragon stopped when H.D. moved, waited a
few seconds, then touched H.D. again.
The next morning, H.D. told S.D. that Mondragon had touched her overnight.
S.D. suggested that H.D. tell N.H., so they went to tell N.H. together. H.D. told N.H. that
Mondragon had stood over her and had tried to touch her. N.H. appeared upset and told
H.D. to tell her mother, but H.D. was too scared to say anything to her mother.

5
H.D. was 27 years old at the time of Mondragon’s trial.
6
In an earlier interview, H.D. said that she was 12 years old when the incident
occurred.
7
 S.D. wanted to see what would happen when H.D. disclosed her abuse. N.H.
confronted Mondragon, and S.D. heard them arguing in the bedroom. But nothing more
happened to Mondragon, which disappointed S.D. and kept her from disclosing to N.H.
her own experience of abuse.
N.H. recalled that S.D. and H.D. had approached her to tell her that Mondragon
had molested H.D. N.H. told H.D. to tell her mother, and she also told H.D.’s mother
herself. H.D.’s mother told N.H. not to contact the police because she thought her
husband would kill Mondragon.
H.D. did not tell anyone else about what happened in the subsequent months, and
she continued to go to S.D.’s house afterwards. H.D. tried to keep her distance from
Mondragon. She still slept over at S.D.’s house, but she and S.D. would sleep upstairs
and make sure that the door was locked, even though they did not discuss the incident.
H.D. and S.D. maintained a friendship as they became older, but S.D. never disclosed to
H.D. that Mondragon had ever touched her. H.D. later learned that S.D. had gone to the
police and had reported that Mondragon had abused her. At the time, H.D. had not told
her parents about what Mondragon did to her. About six months before Mondragon’s
trial, she told her parents about what happened with Mondragon.
3. S.D.’s Disclosure to N.H. and Mondragon’s Move to Mexico
In late 2010, one of S.D.’s sisters disclosed that Mondragon’s brother had been
abusing her. After her sister’s disclosure, S.D. saw that her sister was being supported in
her accusation, so she disclosed to N.H. that she had been abused by Mondragon. By that
time, S.D. was 22 years old.7

7
During her initial interview with police and at the preliminary hearing, S.D. said
that she told her mother about Mondragon’s abuse when she was 17 or 18 years old.

8
 Afterwards, N.H. and S.D. confronted Mondragon. S.D. told Mondragon that he
had to tell N.H. what he used to do to her. S.D. described how he used to take advantage
of her—touching her breasts, watching her shower, slapping her buttocks, and penetrating
her with his fingers. Mondragon did not deny S.D.’s accusations but started crying, fell
to his knees, and apologized. He asked for forgiveness, “admitting everything,” and
begged S.D. not to call the police, saying that he had been “really young and really
stupid.” N.H. said it was S.D. who should decide whether to call the police because she
was now an adult. S.D. gave Mondragon an ultimatum—if he sought counseling, she
would not call the police. S.D. did not want her siblings to grow up without their father
like she had.
In the following days, Mondragon continued to ask S.D. not to call the police,
saying that he would go to jail for a long time. Although S.D. thought this was
manipulative of him, she felt bad for her siblings and did not want to ruin her family.
Mondragon told S.D. that he was going to counseling, but she never saw any proof of
this. S.D. eventually moved out of the house.
N.H. did not ask Mondragon to leave because her younger children, Mondragon’s
biological children, were all still at home. N.H. was under the impression that
Mondragon was going to see a psychologist or a therapist. She repeatedly asked
Mondragon if he was going to seek counseling and reminded him that she would call the
police if he did not get help. N.H. did not give Mondragon a set date to seek counseling,
but she asked him every few weeks about his progress.
In late 2011, N.H. told Mondragon that she was going to report him to the police
because she had no proof that he was actually getting counseling. Two months later,
Mondragon left unannounced and called N.H. as he crossed the border to Mexico. He
said that he was going to Mexico and that she would never see him again.

9
 While in Mexico, Mondragon would sometimes call S.D., occasionally asking
about her body weight, or asking for money.
4. The Facebook Messages
After Mondragon left for Mexico, months passed without contact between N.H.
and Mondragon other than a threatening message he left her after she disclosed his abuse
of S.D. to his sister. At some point, however, communications between N.H. and
Mondragon resumed via Facebook Messenger. N.H. could not recall at trial which of the
two had initiated contact, but the reason N.H. kept in touch with Mondragon was because
of her younger children, who became “depressed” after Mondragon left. N.H.
communicated with Mondragon by sending messages to a Facebook account identified
by the user name, “Nacho Mondragon.”
N.H. and “Nacho Mondragon” exchanged messages in Spanish, and the prosecutor
admitted a translated English version and the original Spanish version of the following
Facebook messages into evidence as an exhibit:8
On October 3, 2013, at 11:09 p.m., N.H. told Mondragon in a lengthy message,
“You need to confront your mistakes. If you come back and deal like a man and get help,
perhaps you can live a good life with your children.” A few hours later, Mondragon
responded, “I know that I did wrong to you who supported me.” That morning,
Mondragon added, “Can I tell you something that they will catch me never.”
Also on October 4, Mondragon asked N.H., “One question.! Life is grand and
better without you say it.” An hour later, N.H. replied, “To me, life is better without you,
without having to see the face of abuse on my daughter.” Mondragon answered five
minutes later, saying, “[N.H.] you said that you were or are big I was there and I gave
you guys everything now it’s your turn. Show that you’re a badass ok. Ok.”

8
We quote verbatim from the exhibit that was admitted into evidence; the
spelling, punctuation, abbreviations are from the original.
10
 On December 2, 2013, at 6:21 p.m., N.H. wrote, “Hello . . . did you forget what
you did? You abused my daughters ASSHOLE!!!!!!!!!!!!.” Mondragon responded at
10:56 p.m., “By,” and then at 11:06 p.m., “Ok sorry [N.H.] you’re. [N.H.] take care.”
Also at 11:06 p.m., Mondragon wrote, “I am Glad. That you are a great woman Hector
took care of your children.” Mondragon also asked N.H. to take care of their children.
Also on December 2, 2013, at 11:52 p.m., N.H. wrote, “I hope Chikis [(their son)]
doesn’t turn out like you . . . [Mondragon’s brother] and Lalo . . . and maybe your dad
was that way . . . sick abusers that like little girls.” Mondragon responded on
December 3, 2013, at 6:15 a.m., “We weren’t like raul9 or boy [sic] or maximo they were
rapists who raped you boby okay normita you’re kidding. You’re still sick [N.H.]” At
1:05 p.m. that same day, N.H. responded in part, “[Y]ou are worse, since you started
molesting my daughters since they were 5 years old.” At 9:32 p.m. that day, Mondragon
replied, “That you also took your cousin’s . . . boyfriend but I was always ahead with
other broads and you thought you were the only one there is [N.H.]? You’re such a
badass take care and say hello to the neighbor that was by buddy and cool with both.”
On December 4, 2013, N.H. wrote to Mondragon at 10:09 p.m. that he did not
think about the children and had done “a lot of damage here.” Mondragon responded
four minutes later that he loved “my little goats so much[,] I was not there for my girl’s
15th nor the graduation for my sons.” At 10:19 p.m., N.H. wrote: “My daughters would
have forgiven you . . . now they hate you because you didn’t care about what you did.
You have no remorse. [Their daughter] said that she didn’t enjoy her 15th because you
were not there.” Two minutes later, Mondragon responded, “Don’t continue.”
Also on December 4, 2013, at 10:27 p.m., N.H. sent Mondragon a message saying,
“I’m just going to ask you something. Ask my daughters for forgiveness. They need to

9
N.H.’s brother, Raul, had been convicted of statutory rape.

11
hear that.” Mondragon responded immediately, saying in part, “Thank you for telling me
that, but I’m honestly sick. I’m not telling you to make fun of me. I am sick.”
5. The Disclosure to the Police
S.D. believed Mondragon would stay in Mexico, so she saw no need to report him
to the police. But this changed in 2017, when she learned that Mondragon had returned
to the United States. Fearing for her life, she reported his past abuse to the police.
6. CSAAS Expert
Psychologist Anna Washington testified as an expert in CSAAS. CSAAS,
according to Washington, describes some common aspects of “how [children] might
respond to sexual abuse and how they may report about abuse after their experiences.”
Washington described CSAAS as encompassing five characteristic responses: secrecy;
helplessness; feelings of entrapment and accommodation; unconvincing, conflicted, or
delayed disclosure of abuse; and retraction. Not all abused children exhibit all the
responses characteristic of CSAAS. Washington described the categories as follows:
The first characteristic, secrecy, stems from the preexisting relationship
perpetrators often have to a child. The perpetrator may be someone the child knows and
loves or who “meets some of [the child’s other] needs” and may use “grooming
intimidations” or coercion to keep the child quiet.
Helplessness refers to a child’s vulnerability. Washington testified that
perpetrators of child sexual abuse are usually adults and are both physically stronger and
more sophisticated in relationships than children, so children are unable to physically
resist or may submit to the abuse because they are made to feel helpless for other reasons.
Entrapment and accommodation, according to Washington, refer to the child’s
feeling of being trapped in the relationship and the child’s mechanisms for coping with
the abusive relationship. A child may try to avoid the perpetrator or may develop

12
“internalized mental health problems, like disruptive behavioral problems, substance
abuse, or other similar behaviors.”
The next characteristic—“delayed, unconvincing, and conflicting disclosures”—
Washington testified refutes the “myth” that child sexual abuse victims will tell someone
about the abuse right away. According to Washington, the majority of child abuse
victims will not disclose the abuse because of their preexisting relationship with their
abuser. Even when children do disclose abuse, their disclosures may be inconsistent.
The last characteristic, retraction, involves a child “taking back a previous true
allegation of child sexual abuse.” Washington testified that retraction occurs “if [the
children] realize that telling about the abuse caused something bad to happen.”
C. The Verdict and Sentencing
On March 27, 2019, the jury convicted Mondragon of all counts as charged and
found the multiple-victim enhancement allegation to be true. On May 20, 2019, the trial
court sentenced Mondragon to prison for a total indeterminate term of 92 years and
eight months to life.10
II. DISCUSSION
A. Facebook Messages
Mondragon argues that the trial court erred by admitting the Facebook messages
because they were insufficiently authenticated and did not qualify as adoptive
admissions. We review the trial court’s findings as to foundational facts for substantial
evidence. (People v. DeHoyos (2013) 57 Cal.4th 79, 132 (DeHoyos).) We review its
ultimate determination as to admissibility for abuse of discretion. (People v. Goldsmith
(2014) 59 Cal.4th 258, 266 (Goldsmith); People v. Chism (2014) 58 Cal.4th 1266, 1297

10
The trial court sentenced Mondragon to six consecutive terms of 15 years to life
for counts 1 through 5 and 8, a middle term of two years for count 6, and eight months
(one-third the middle term of 2 years) for count 7.

13
(Chism).) Under these deferential standards, we find no merit in Mondragon’s
contentions.11
1. Authenticity of the Facebook Messages
As “writings,” the Facebook messages are subject to authentication by “the
introduction of evidence sufficient to sustain a finding that [they are] the writing[s] that
the proponent of the evidence claims [they are].” (Evid. Code, §§ 250, 1400.) The
authenticity of a writing can be established by circumstantial evidence and by the
contents of the writing itself, and the means of authenticating a document are not limited
to those specified in the Evidence Code. (People v. Landry (2016) 2 Cal.5th 52, 87;
People v. Valdez (2011) 201 Cal.App.4th 1429, 1435 (Valdez) [MySpace page may be
authenticated by items on the page suggesting the identity of owner]; People v. Cruz
(2020) 46 Cal.App.5th 715 (Cruz) [Facebook messages can be adequately authenticated
by circumstantial evidence, including the contents of the messages themselves]; Evid.
Code, §§ 1410, 1421.) “The purpose of the evidence will determine what must be shown
for authentication, which may vary from case to case. [Citation.] The foundation
requires that there be sufficient evidence for a trier of fact to find that the writing is what
it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially,
what is necessary is a prima facie case. ‘As long as the evidence would support a finding
of authenticity, the writing is admissible. The fact conflicting inferences can be drawn
regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ ”
(Goldsmith, supra, 59 Cal.4th at p. 267.)
Substantial evidence supported the trial court’s determination that the jury could
find the Facebook messages to be genuine communications between N.H. and

11
Given Mondragon’s alternative claim of ineffective assistance of counsel, we
elect to reach the merits of both the hearsay and lack of authentication claims, despite
Mondragon’s reliance at trial on solely the hearsay ground.

14
Mondragon. Gilroy Police Department Officer Hugo Delmoral testified that he was
tasked with looking at Facebook messages associated with Mondragon’s case. N.H. gave
Delmoral her Facebook password so that he could access her account, and Delmoral
found a Facebook profile for a user named “Nacho Mondragon.” Delmoral was able to
view messages sent between “Nacho Mondragon” and N.H. from July 2013 until
January 2014. The messages were written in Spanish, which Delmoral was fluent in.
Delmoral wrote a search warrant for the Facebook account. Facebook responded to the
search warrant with records associated with the account, which showed that the account
was associated with an email address called “chiki_boys@hotmail.com.”
Delmoral found multiple indications that the “Nacho Mondragon” account
belonged to Mondragon. Delmoral knew that “Chikis” was a nickname used by
Mondragon’s late son. “Nacho Mondragon” had Mondragon’s daughter and son listed as
Facebook friends, and the user of the account had sent Mondragon’s photograph to other
women. Mondragon’s daughter and son sent “Nacho Mondragon” Facebook messages
where they would call him “papi,” a term of endearment for “dad.” Mondragon’s son
sent “Nacho Mondragon” photos of himself playing football, and “Nacho Mondragon”
sent photos of Mondragon to the son. N.H. herself testified that Mondragon went by the
name “Nacho” and also used the “Nacho Mondragon” Facebook account to communicate
with her. N.H. told Delmoral that she had deleted some messages, but N.H. had
confirmed that no messages were deleted from July 2013 to January 2014. Based on the
foregoing, circumstantial evidence dating years before any law enforcement involvement
supported the trial court’s prima facie determination of the messages’ authenticity. (See
Valdez, supra, 201 Cal.App.4th at p. 1436; Cruz, supra, 46 Cal.App.4th at pp. 730-731.)
Arguing otherwise, Mondragon relies on People v. Beckley (2010) 185
Cal.App.4th 509 (Beckley), in which the Court of Appeal considered whether a
photograph on a MySpace page depicting a witness allegedly using gang signs was

15
sufficiently authenticated. (Id. at p. 515.) Opining that “ ‘[a]nyone can put anything on
the Internet’ ” and that “hackers can adulterate the contents of any web-site from any
location at any time’ ” (id. at pp. 515-516), the court in Beckley held that the trial court
erred in admitting the photograph in question. (Id. at p. 514.) The court further
concluded that the trial court erred in admitting a gang roster that appeared on a web page
as there was insufficient evidence that the writing was what it purported to be—there was
no evidence as to who authored the roster, the officer who obtained the roster did not
know who created it, and there was no evidence that the person who created the list had
any personal knowledge of the gang’s members or that persons on the list were in fact
gang members. (Id. at pp. 517-518.)
Beckley is distinguishable both in the circumstances of the web posting and the
purpose for which the evidence was admitted, which as we have noted “will determine
what must be shown for authentication.” (See Goldsmith, supra, 59 Cal.4th at p. 267.)
Unlike Beckley, we are not concerned with the authentication of a photograph for the
purpose of proving the action depicted in the photograph—irrespective of the truth of
N.H.’s statements in the Facebook Messenger exhibits, the purpose of the exhibits was to
document how Mondragon responded to those accusations. “The questions concerning
the accuracy and reliability of these Facebook messages differ from the questions
concerning the accuracy and reliability of the photographic evidence presented in
Beckley.” (Cruz, supra, 46 Cal.App.5th at p. 731.) And unlike the gang roster
considered in Beckley, there was ample circumstantial evidence from which the trial court
could find that the writing was what it purported to be—an exchange of messages
between N.H. and Mondragon. (See Beckley, supra, 185 Cal.App.4th at pp. 517-518.)
To the extent Mondragon argues that there was no evidence from Facebook or an
Internet Service Provider that established that he was the one who sent the messages in
reply to N.H. or evidence about how easy or hard it would be for someone to use the

16
“Nacho Mondragon” account or to hack into the “chikis_boys@hotmail.com” e-mail,
these arguments go primarily to the weight of the evidence, not to its admissibility.
“[T]he proponent’s threshold authentication burden for admissibility is not to establish
validity or negate falsity in a categorical fashion, but rather to make a showing on which
the trier of fact reasonably could conclude the proffered writing is authentic.” (Valdez,
supra, 201 Cal.App.4th at p. 1437.) All that is required to authenticate a writing is a
“prima facie case” that the writing is what it purports to be. (Goldsmith, supra, 59
Cal.4th at p. 267.)
Finally, Mondragon relies on Commonwealth. v. Williams (Mass. 2010) 926
N.E.2d 1162 (Williams). In Williams, the Massachusetts Supreme Court that held that
MySpace messages purportedly from the defendant’s brother to a prosecution witness
were insufficiently authenticated, although the MySpace account featured a photo of the
defendant’s brother, the witness testified generally that the messages she received came
from the MySpace account, and the contents of the messages demonstrate a familiarity
with the recipient and the defendant’s criminal case. (Id. at pp. 1172-1173.) Williams
reasoned that “[a]nalogizing a Myspace Web page to a telephone call, a witness’s
testimony that he or she has received an incoming call from a person claiming to be ‘A,’
without more, is insufficient evidence to admit the call as a conversation with ‘A.’ ” (Id.
at p. 1172.)
The persuasive authority of Williams is lessened by its distinguishable facts—there
was no evidence in Williams that the defendant’s brother had ever communicated with
the recipient prior to trial, nor was there evidence about the account’s communication
with other individuals. (Williams, supra, 926 N.E.2d at p. 1172.) Here, there is

17
comparatively more circumstantial evidence that “Nacho Mondragon” was used by
Mondragon and that Mondragon sent the messages.12
Accordingly, we conclude that substantial evidence supports the trial court’s
determination of foundational facts and that the trial court did not abuse its discretion in
deeming these sufficient to overcome Mondragon’s authenticity objection. (DeHoyos,
supra, 57 Cal.4th at p. 132; Goldsmith, supra, 59 Cal.4th at p. 266.) We therefore turn to
the merits of Mondragon’s hearsay objection.
2. Adoptive Admissions
“ ‘There are only two requirements for the introduction of adoptive admissions
[under Evid. Code, § 1221]: “(1) the party must have knowledge of the content of
another’s hearsay statement, and (2) having such knowledge, the party must have used
words or conduct indicating his adoption of, or his belief in, the truth of such hearsay
statement.” [Citation.]’ ” (People v. Combs (2004) 34 Cal.4th 821, 843.) In other words,
an adoptive admission can be admitted if a statement was made “ ‘ “under circumstances
that would normally call for a response if the statement were untrue” ’ ” and the recipient
of the message responded with “ ‘ “silence, evasion, or equivocation.” ’ ” (People v.

12
Mondragon also relies on State v. Eleck (Conn.Ct.App. 2011) 23 A.3d 818, a
case decided by the Appellate Court of Connecticut but since overruled by the Supreme
Court of Connecticut in State v. Manuel T. (Conn. 2020) 254 A.3d 278 (Manuel T.). In
Manuel T., the intermediate appellate court held that the trial court properly excluded
Facebook messages where the proponent did not present evidence that the messages came
from the purported author and not just from the author’s Facebook account. (State v.
Eleck, supra, at p. 824.) But the Supreme Court of Connecticut reversed, holding that
authentication of electronic communications—including screenshots of text messages—
requires no more than the same “low burden” of prima facie authenticity as other forms
of evidence under Connecticut law. (Manuel T., supra, 337 Conn. at pp. 294-295.)

18
Jennings (2010) 50 Cal.4th 616, 661 (Jennings).)13 “ ‘To warrant admissibility, it is
sufficient that the evidence supports a reasonable inference that an accusatory statement
was made under circumstances affording a fair opportunity to deny the accusation;
whether defendant’s conduct actually constituted an adoptive admission becomes a
question for the jury to decide.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1189-1190
(Riel).) Mondragon argues both that he was not silent in the face of N.H.’s accusations
and that his responses were neither evasive nor equivocal. Mondragon’s arguments
largely turn on the availability of alternative interpretations for either N.H.’s accusations
or Mondragon’s responses and are therefore inconsistent with our deferential standard of
review.
As a threshold matter, we agree that Mondragon was not merely silent in the face
of N.H.’s many accusations. But it is the content of his various responses that the trial
court found to support a reasonable inference of equivocation or evasion, rather than his
silence. Mondragon’s contrary arguments uniformly go toward the weight of the
evidence, not their admissibility.
Mondragon specifically challenges the following statements:
On October 3, 2013, in response to N.H.’s message that he needed to “confront his
mistakes” and get help, Mondragon expressly admitted, “I know that I did wrong to you
who supported me.”
On October 4, when N.H. wrote that her life was better “without having to see the
face of abuse on my daughter,” Mondragon did not expressly deny N.H.’s accusation of
abuse, but responded, “I gave you guys everything now it’s your turn.”

13
However, an adoptive admission cannot be admitted if there is “ ‘an inference
that [a person] was relying on the right of silence guaranteed by the Fifth Amendment of
the United States Constitution.’ ” (Jennings, supra, 50 Cal.4th at p. 661.)
19
 On December 2, 2013, when N.H. wrote, “You abused my daughters
ASSHOLE!!!!!!!!!!!!.” Mondragon responded several hours later with only “By,”
followed a few minutes thereafter with, “Ok sorry . . . [N.H.] take care.”
On December 2, 2013, when N.H. wrote that she hoped “Chikis” did not turn out
“like you, [Mondragon’s brother], and Lalo . . . . sick abusers that like little girls.”
Mondragon responded the next day, “We weren’t like raul or boy [sic] or maximo they
were rapists who raped you . . . .”
On December 4, 2013, when N.H. wrote that her daughters “hate you because you
didn’t care about what you did” and that he had no remorse,” Mondragon responded,
“Don’t continue.”
And finally, on December 4, 2013, when N.H. told Mondragon, “Ask my
daughters for forgiveness. They need to hear that.” Mondragon responded almost
immediately, in part saying, “Thank you for telling me that, but I’m honestly sick. I’m
not telling you to make fun of me. I am sick.”
We discern no abuse of discretion in the trial court’s admission of these messages:
considered in context, the evidence supported a reasonable inference that Mondragon’s
responses to N.H.’s accusations were at least evasive and equivocal. (See Riel, supra, 22
Cal.4th at pp. 1189-1190.) Although Mondragon argues that N.H.’s use of the word
“abuse” at various times was itself ambiguous, the trial court legitimately found it
reasonable to infer that N.H.’s assertion that Mondragon had “abuse[d]” her daughter
would normally call for a response if the statement were untrue, regardless of whether
“abuse” could be interpreted as sexual abuse or physical abuse. (Jennings, supra, 50
Cal.4th at p. 661.)14 Moreover, Mondragon’s arguments that he had a sarcastic tone to

14
Likewise, we note that N.H.’s use of “daughters” instead of “daughter” in her
messages does not render her statement any less accusatory. At trial, N.H. clarified that
she had used the plural “daughters” in a later text message because she was referencing
her daughter who had been abused by Mondragon’s brother.
20
his messages goes toward the weight of the evidence, not its admissibility. And multiple
times, Mondragon did not straightforwardly address N.H.’s accusations—when N.H. said
she hoped that “Chikis” did not turn out like him, Mondragon’s response was not an
unequivocal denial of his “abus[ing] . . . little girls”; instead, he minimized his abuse by
alluding to criminals he considered more blameworthy than he, the “rapists who raped
you.” And when N.H. accused Mondragon of doing something that made her daughters
hate him, Mondragon changed the subject, permitting the court to construe his answer as
evasive. (See People v. Fauber (1992) 2 Cal.4th 792, 852 (Fauber) [direct accusation is
not required for adoptive admission exception to apply].) Likewise, his response to N.H.
after she told him to ask her daughters for forgiveness was not a denial; he arguably
acknowledged that he was “honestly sick.”
Mondragon argues that even if his statements on their face failed to deny N.H.’s
accusations, there is simply insufficient evidence to support the conclusion that he in fact
adopted the truth of any of the accusations, relying on People v. McDaniel (2019) 38
Cal.App.5th 986. There, the Fifth Appellate District considered whether a 20-minute text
message exchange that included an indirect accusation by the defendant’s mother that the
defendant had committed several local robberies, which the defendant failed to respond
to, constituted an adoptive admission. (Id. at p. 999.) The McDaniel court observed that
“given the distinctive nature of text messaging,” the defendant’s silence following his
mother’s indirect accusation was insufficient to show that he read the message
immediately on receipt or to dispel an inference that he had responded to his mother’s
statement by other means. (Ibid.) Unlike McDaniel, the trial court’s conclusions
regarding the foundational facts to support the messages’ admission—that Mondragon
read and understood the messages, that he could have denied the messages but did not—
were supported by substantial evidence, namely the time-stamped responses to each of
N.H.’s accusatory messages. (See Chism, supra, 58 Cal.4th at p. 1297.)

21
 We also reject Mondragon’s framing of the Facebook messages as having
unfolded over a two-month period, the length of which he asserts would have blurred
their meaning and diminished the likelihood that his messages were responsive to N.H.’s.
Although Mondragon and N.H. did in fact exchange messages over a period of months,
even years, the conversations Mondragon challenges involve discrete exchanges over the
course of hours, sometimes even minutes. Mondragon’s arguments therefore go toward
the weight of the evidence, rather than its admissibility. (See Fauber, supra, 2 Cal.4th
792, 853 [observations that witness kept eyes closed during conversation, could not
identify which person made which statement, and had ingested a lot of cocaine the night
prior went toward weight of evidence, not admissibility as adoptive admission].)
Mondragon was free to argue his points to the jury. To that end, the trial court properly
instructed the jury in accordance with CALCRIM No. 357, which provides that the jury
may consider adoptive admissions as true if the following elements are met: (1) the
statement was made to the defendant or in his presence, (2) the defendant heard and
understood the statement, (3) the defendant, under all the circumstances, would have
naturally denied the statement if he thought it was not true, and (4) the defendant could
have denied the statement but did not. We must presume that the jury followed the
instructions that it was given. (Chism, supra, 58 Cal.4th at p. 1299.) Thus, if the jury
found that Mondragon did not read the messages, did not understand the messages, or
was not the one who responded to them, the jury would have accorded the evidence no
weight. (Ibid.)
Based on the foregoing, we conclude that the trial court did not abuse its discretion
when it admitted the Facebook messages as adoptive admissions. (Chism, supra, 58
Cal.4th at p. 1297; People v. Waidla (2000) 22 Cal.4th 690, 717; Evid. Code, § 1221.)
Furthermore, as “[t]he ‘routine application of state evidentiary law does not implicate [a]
defendant’s constitutional rights’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1010), we

22
find no merit in Mondragon’s claim the admission of the Facebook messages violated his
Fourteenth Amendment due process right to a fair trial.
B. CALCRIM No. 1191B
Mondragon argues that the trial court erroneously instructed the jury with
CALCRIM No. 1191B, which provides that charged sexual offenses can be used as
propensity evidence.15 He argues that CALCRIM No. 1191B impermissibly expands
Evidence Code section 1108 to permit the jury to consider evidence of charged sex
crimes as evidence of a defendant’s propensity to commit other charged sex crimes.16 He
also argues that CALCRIM No. 1191B violates his federal due process rights as it
permits the jury to use a guilty verdict on one count to infer his guilt as to other counts.
Mondragon concedes that his arguments have been foreclosed by the California
Supreme Court’s decision in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), in
which a majority of the California Supreme Court concluded that Evidence Code
section 1108 was not limited to offenses other than those for which the defendant is
currently on trial. (Villatoro, supra, at p. 1161.) Villatoro held that “in authorizing the
jury’s use of propensity evidence in sex offense cases, [Evidence Code] section 1108
necessarily extends to evidence of both charged and uncharged sex offenses, affirming
that such evidence is not ‘made inadmissible by Section 1101.’ ” (Id. at p. 1162.)
Bound by our Supreme Court’s decision, we must reject Mondragon’s claim that
the trial court erred in giving CALCRIM No. 1191B, as well as his argument that his due
process rights were violated by the instruction. (See Auto Equity Sales, Inc. v. Superior

15
The instruction was given to the jury without any objection by Mondragon.
16
Evidence Code section 1108, subdivision (a) provides: “In a criminal action in
which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not made inadmissible pursuant to Section 352.”
23
Court (1962) 57 Cal.2d 450, 455; People v. Meneses (2019) 41 Cal.App.5th 63, 68
[rejecting due process challenge to CALCRIM No. 1191B under Villatoro].)
C. CALCRIM No. 1193
Mondragon argues that CALCRIM No. 1193 erroneously informed the jurors that
they could consider the CSAAS expert’s testimony in determining the victim’s
credibility, lessening the prosecutor’s burden of proof. Although we agree that
CALCRIM No. 1193 could be clarified, it is not reasonably likely the jury would have
misapplied the instruction on this record.17
“We 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 reasonable likelihood the jury applied the instruction in an
impermissible manner.’ ” (People v. Rivera (2019) 7 Cal.5th 309, 326 (Rivera).)
“ ‘Moreover, any theoretical possibility of confusion [may be] diminished by the parties’
closing arguments.’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, abrogated
on a different ground as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
CSAAS expert testimony is inadmissible to prove that a complaining witness has
in fact been sexually abused. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) It is
admissible solely to rehabilitate a complaining witness against a suggestion that the
witness’s conduct after the abuse was inconsistent with having been abused. (Ibid.)
Thus, the expert testimony may legitimately serve “ ‘to disabuse jurors of commonly held
misconceptions about child sexual abuse, and to explain . . . abused children’s seemingly
self-impeaching behavior.” (Id. at p. 301.)

17
Mondragon made no objection when the trial court instructed the jury with
CALCRIM No. 1193, but we nonetheless reach the merits of his claims because he
contends that the instruction was an incorrect statement of law and affected his
substantial rights. (§ 1259; see People v. Grandberry (2019) 35 Cal.App.5th 599, 604.)

24
 Here, the jury was instructed with CALCRIM No. 1193 as follows: “You have
heard testimony from Dr. Anna Washington regarding child sexual abuse accommodation
syndrome. Dr. Washington’s testimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of the crimes charged against
him. [¶] You may consider this evidence only in deciding whether or not [S.D.] and
[H.D.]’s conduct was not inconsistent with the conduct of someone who has been
molested and in evaluating the believability of their testimony.” (Italics added.)
Multiple Courts of Appeal have upheld the language of CALCRIM No. 1193, as
recited above, as accurately informing the jury of the limited use of CSAAS evidence.
(People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 (Gonzales); People v. Munch
(2020) 52 Cal.App.5th 464, 473-474; People v. Lapenias (2021) 67 Cal.App.5th 162,
175-176.) Mondragon recognizes these cases but argues that they overlooked the fact
that by permitting jurors to use CSAAS testimony to evaluate the complaining witnesses’
“believability”—or credibility—the instruction effectively circumvents the prohibition
against permitting CSAAS testimony to prove a defendant’s guilt.
We acknowledge that the inclusion of “and” in the last sentence of the instruction
is susceptible of an interpretation that the jury’s use of the CSAAS evidence in evaluating
“the believability of [the witnesses’] testimony” might extend beyond merely deciding
whether the witnesses’ conduct was inconsistent with that of someone who had been
molested. But we consider it unlikely on this record that the jury would have applied the
instruction in an impermissible manner. (Rivera, supra, 7 Cal.5th 309, 326.) CALCRIM
No. 1193 expressly informs the jury that CSAAS evidence “is not evidence that the
defendant committed any of the crimes charged.” The expert’s testimony was
appropriately limited—the expert did not render an opinion as to whether the victims
were in fact molested—and the prosecutor did not urge the jury to improperly use the
evidence during closing argument. To the contrary, the prosecutor omitted in her

25
paraphrase of the instruction the very “believability of the witnesses” clause that
Mondragon finds objectionable, stating only: “You should consider the evidence
concerning the syndrome and its effects only for the limited purpose of showing, if it
does, that the alleged victims’ reactions, as demonstrated by the evidence, are consistent
with being molested. Okay?”
Thus, we find no merit in Mondragon’s assertion that the reference to the
“believability of the witnesses” in CALCRIM No. 1193 would have led the jury to
believe that it was free to use the CSAAS evidence as a diagnostic tool—to extrapolate
from the witnesses’ childhood behavior that he had abused them—rather than a
rehabilitative tool permitting the jury to intelligently decide whether their behavior was
self-impeaching. For these same reasons, we find no merit in Mondragon’s claim that the
instruction impermissibly lowered the prosecutor’s burden of proof. (Gonzales, supra, 16
Cal.App.5th at p. 504.)
D. Prosecutorial Misconduct
Mondragon argues that the prosecutor committed misconduct in closing argument
by vouching for H.D.’s truthfulness. Although defense counsel did not object and
therefore forfeited the claim, we address the merits, given Mondragon’s alternative
argument that his trial counsel was constitutionally ineffective. (See People v. Rodrigues
(1994) 8 Cal.4th 1060, 1125-1126.) Our review of the record satisfies us that no
misconduct occurred.
During closing argument, the prosecutor made the following statement: “[H.D.]
was complete[ly] honest. She didn’t exaggerate. She didn’t make things up. She told
you what happened. If she really had a dog in this fight and really wanted to go after the
defendant, she’s now a grown woman. She’s sophisticated. She could have said he raped
her. She could have said so much worse. She didn’t. She has no motive to lie. She
hasn’t seen him in years. She has moved on. And she is a successful grown woman.

26
There’s no reason to make this up. There’s no fame. There’s no monetary gain. There’s
nothing, except for the fact she was forced to tell the truth of what happened to her.” At
no time did defense counsel object.
“A prosecutor may make ‘assurances regarding the apparent honesty or
reliability’ of a witness ‘based on the “facts of [the] record and the inferences reasonably
drawn therefrom.” ’ [Citation.] But a ‘prosecutor is prohibited from vouching for the
credibility of witnesses or otherwise bolstering the veracity of their testimony by
referring to evidence outside the record.’ ” (People v. Turner (2004) 34 Cal.4th 406,
432-433.) For example, in Turner, the California Supreme Court held that it was
improper for the prosecutor to vouch for expert witnesses based on the prosecutor’s
personal knowledge of the witnesses and his use of those witnesses when he was a
defense attorney. (Id. at p. 433.)
In contrast to Turner, however, the record in this case does not affirmatively
disclose error; it is at best ambiguous what the prosecutor meant by “successful” and
“sophisticated,” and “ ‘we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v.
Centeno (2014) 60 Cal.4th 659, 667.) The prosecutor’s argument was largely grounded
in evidence apparent from the record: The prosecutor generally asserted that H.D. was
credible because of her demeanor on the stand, the consistency of her statements in the
course of two interviews and her trial testimony, and her lack of motive to lie given the
passage of time and her scarcity of contact with Mondragon. In contrast, instead of
referring to S.D. as “successful,” the prosecutor focused on the collateral effects of S.D.’s
experience of abuse—“poor [S.D.]” and her early alcohol dependence, for example, and
her self-reproach on the stand even at age 30, as she called herself “weak” for not having
disclosed Mondragon’s abuse as a child. In this context, we conclude the jury would
have understood the prosecutor’s brief characterization of H.D. as a “successful grown

27
woman” as a comment on the absence of any obvious lingering effects of her isolated
experience of abuse (in contrast to S.D.), as well as H.D.’s demeanor on the stand. As for
the prosecutor’s comment that H.D. is “sophisticated,” given the context of the
statement—that if she were motivated to lie, she “could have said so much worse”—we
see no reason the jury would have understood this as anything more than a comment on
H.D.’s measured and articulate answers on both direct and cross-examination. We
accordingly reject Mondragon’s claim of prosecutorial error.
Even assuming that the prosecutor’s comments were misconduct, we would find
no prejudice. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 [reversal not required for
prosecutorial misconduct unless it is reasonably probable result would have been
favorable in absence of misconduct].) The prosecutor’s statements here were brief and
generic. In contrast, the evidence against Mondragon was comparatively strong with
respect to H.D.’s allegation of abuse because S.D. supplied direct eyewitness
corroboration, and N.H. confirmed H.D.’s fresh complaint. The jury was also instructed
that the attorneys’ statements—whether in questioning witnesses or in argument—were
not evidence. We discern nothing in the record that would overcome our customary
presumption that the jury followed the given instructions. (Chism, supra, 58 Cal.4th at p.
1299.)
E. Cumulative Error
Mondragon argues that the cumulative effect of all the errors requires reversal of
the judgment. “In theory, the aggregate prejudice from several different errors occurring
at trial could require reversal even if no single error was prejudicial by itself.” (In re
Reno (2012) 55 Cal.4th 428, 483.) Having found no error to cumulate, we must reject
Mondragon’s claim of cumulative error.

28
F. Fines and Fees
At the sentencing hearing, the trial court imposed a $5,000 restitution fine
(§ 1202.4, subd. (b)), a $240 court operations assessment (§ 1465.8), and a $240 criminal
conviction assessment (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), Mondragon argues that all the fines and fees should be
stayed as the trial court failed to make a finding that he had the ability to pay them.18
We agree with the Attorney General that Mondragon forfeited his challenge to the
imposition of fines and fees under Dueñas. The general rule is that challenges to the
imposition of fines and fees are forfeited unless an objection is made in the trial court.
(People v. Aguilar (2015) 60 Cal.4th 862, 866 (Aguilar).) Mondragon made no
objections to the imposition of fines and fees at the sentencing hearing held four months
after Dueñas was decided. There is accordingly no reason that Mondragon could not
have raised a timely Dueñas objection at that time. (People v. Greeley (2021) 70
Cal.App.5th 609, 624-625 [Dueñas claim forfeited as May 2019 sentencing hearing took
place several months after Dueñas was decided]; cf. People v. Santos (2019) 38
Cal.App.5th 923, 932-933 [failure to object at a pre-Dueñas sentencing hearing did not
forfeit the claim].)
We also reject Mondragon’s alternative contention that his argument is based on a
“pure question of law based on undisputed facts,” which we may properly review for the
first time on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.) A
person’s ability to pay fines and fees is at bottom a factual determination. (People v.
McCullough (2013) 56 Cal.4th 589, 597.)

18
This issue is currently pending review by the California Supreme Court in
People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.

29
 Equally unavailing is Mondragon’s reliance on People v. Vera (1997) 15 Cal.4th
269, 276 (Vera), disapproved on other grounds in People v. French (2008) 43 Cal.4th 36,
47, fn. 3, for the proposition that his Dueñas claim implicates “the deprivation of certain
fundamental, constitutional rights” cognizable for the first time on appeal. (Vera, supra,
at p. 276.) Our Supreme Court has held that “ ‘ “a constitutional right,” or a right of any
other sort, “may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (In
re Sheena K. (2007) 40 Cal.4th 875, 880-881.) Vera “ ‘was not intended to provide
defendants with an “end run” around the forfeiture rule,’ but was limited to a narrow
class of constitutional rights.’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1166, italics
added.) These rights include “a plea of once in jeopardy and the right to jury trial.”
(People v. Tully (2012) 54 Cal.4th 952, 980, fn. 9.) None of these rights are implicated
by Mondragon’s Dueñas claim.
Accordingly, we conclude that the failure to raise this issue in the trial court has
forfeited Mondragon’s claim on appeal. (See Aguilar, supra, 60 Cal.4th at p. 866.)
III. DISPOSITION
The judgment is affirmed.

30
 ____________________________
LIE, J.

WE CONCUR:

____________________________
GREENWOOD, P.J.

_____________________________
GROVER, J.

People v. Mondragon
H047341