People v. Vierra CA2/3 ( 2023 )

Filed 2/9/23 P. v. Vierra CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B314070
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA153998
v.
DAVID VIERRA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Roger T. Ito, Judge. Reversed in part,
sentence vacated, and remanded with directions.
Edward J. Haggerty, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
A jury convicted David Vierra of committing 13 sexual
offenses against four victims, most of whom were minors. On
appeal, Vierra argues some of his convictions are not supported
by substantial evidence, the trial court made instructional errors,
the court admitted improper expert testimony, the prosecutor
engaged in misconduct, and the jury erroneously convicted him
of both continuous sexual abuse and committing individual
lewd acts on the same victim during the same time period.
He also contends his case must be remanded for resentencing
in accordance with Senate Bill No. 567 (2021–2022 Reg. Sess.).
We reverse Vierra’s conviction for continuous sexual abuse
and remand the case for resentencing. We affirm the judgment
in all other respects.
FACTS AND PROCEDURAL BACKGROUND
1. Background
The People charged Vierra with 14 counts of sex crimes
committed against four victims. All of the victims are relatives
of Dora L., whom Vierra dated and eventually married.
Vierra and Dora have one child together, I.V. (born in
November 2014). I.V. is autistic and non-verbal. Dora also
has two sons from a previous marriage: J.L. (born in December
2005), and M.L. (born in March 2008). J.L. is also autistic,
but he is verbal and does not require as much support as I.V.
2. Counts related to M.L.
In December 2019, when M.L. was 11 years old, his friend
sent him an image of two men having sex. Vierra saw the image
on M.L.’s phone and showed it to Dora. Dora became angry
with M.L., and M.L. told her, “That’s what [Vierra] did to me.”
Dora kicked Vierra out of the house and called the police.
2
M.L. spoke to a forensic interviewer on May 15, 2020.
At trial, the prosecutor played a video of the interview for the
jury.
M.L. told the interviewer that Vierra had sexually
assaulted him between 10 and 20 times. M.L. said the first
assault happened in January 2019 while Dora was at a Bible
study class, which she had started attending the previous week.
Vierra grabbed M.L.’s arm, pulled him into a bedroom, and
threw him onto the bed. Vierra took off M.L.’s clothes and
flipped him over so that his stomach was touching the bed.
M.L. felt Vierra’s penis in his “butt,” and Vierra moved his body
up and down. M.L. eventually felt Vierra ejaculate. Vierra
then told M.L. to suck his penis, which M.L. did.
M.L. recalled another incident that happened while
his cousin, D.M., was visiting. D.M. would have been around
19 years old at the time. Vierra told M.L. and D.M. to go into
a bedroom to work on a school project. Vierra came into the room
and put his penis in D.M.’s “butt.”
The last incident M.L. could recall happened in May 2019.
Dora left the house to go to a restaurant with a friend. Vierra
told D.M. to go into his room. Vierra then put his penis inside
D.M.’s mouth and anus.
M.L. testified at trial in July 2021, more than a year after
the interview. M.L. testified that Vierra touched him for the
first time in February 2019, when he was ten years old. M.L.
was massaging Vierra’s arm with his knees. Vierra grabbed
M.L.’s penis and started playing with it.
M.L. said Vierra touched him for the second time in March
2019, but he gave inconsistent testimony about whether the
3
incident happened before or after his 11th birthday. We discuss
the inconsistencies in more detail below.
During the second incident, Vierra told M.L. to get naked
and get on the bed. Vierra closed the bedroom door and took off
his clothes. Vierra put his penis in M.L.’s mouth and told him
to suck it. After Vierra finished, he told M.L. he would hurt him
if he told anyone.
The third incident occurred about a week later—which
M.L. clarified was after his birthday—while Dora was at Bible
study. Vierra again told M.L. to go to his room and take off
his clothes, which M.L. did. Vierra put his penis inside M.L.’s
mouth. He then told M.L. to lie on the bed with his stomach
facing down. Vierra put his penis inside M.L.’s anus. Vierra
moved M.L. back and forth, and M.L. eventually felt Vierra
ejaculate on his body.
M.L. recalled a fourth incident that happened around
two weeks later. Vierra sat on the edge of the bed and told M.L.
to ride his penis. M.L. got on Vierra’s lap and faced away from
him. Vierra put his penis inside M.L.’s anus. Vierra moved
M.L.’s body up and down while moaning. Vierra ejaculated
after a few minutes.
According to M.L., Vierra assaulted him in a similar
manner eight or nine more times. Around June 2019, Vierra
had M.L. ride his penis in the backseat of a car. Another time,
Vierra put his penis inside M.L.’s anus while Dora was at a
restaurant with friends.
M.L. testified that in April 2019, Vierra drove him to a
store to get food. While in the car, Vierra showed M.L. a video
on his phone of two men having sex. Vierra said, “[T]his is what
you have to do to me to make sex better.”
4
3. Counts related to J.L. and I.V.
J.L. spoke to a forensic interviewer the same day as M.L.
The prosecutor played for the jury a video of the interview.
J.L. told the interviewer that Vierra grabbed his genitals
in the summer of 2015, when J.L. was nine years old. Vierra
also made J.L. watch an extremely graphic pornographic video
called “Two Girls One Cup.”
J.L. said that another day, he was watching television
when he heard I.V. scream. J.L. opened the bedroom door and
saw “[I.V.] getting raped by my stepfather [Vierra]. . . . Vierra
put his, put his dick in his butt and he told me not to tell anyone
because if I told anybody he would ground me for that . . . .”
According to J.L., Vierra was not wearing pants. I.V.
was lying on his stomach and wearing a diaper. J.L. initially
said the diaper was “[o]n”; later, he said it was “[o]ff.”
At trial, J.L.’s testimony regarding Vierra grabbing his
genitals and forcing him to watch pornography was generally
consistent with his statements during the interview. His
testimony regarding the incident with I.V., however, was
significantly different. J.L. testified that when he looked in
the bedroom, he saw Vierra “[p]utting his dick on [I.V.’s] diaper.”
J.L. said I.V. was wearing the diaper and the diaper was “up.”
According to J.L., this happened in 2018, before I.V.’s birthday.1
4. Counts related to D.M.
D.M. is Dora’s nephew. In December 2019, D.M.’s father
told him that M.L. had accused Vierra of sexual assault, and
1 J.L. testified that the incident occurred before I.V’s
“fifth birthday in 2018.” I.V., however, was born in 2014,
meaning he would have turned four years old in 2018.
5
D.M. broke down crying. D.M. told his father M.L. was telling
the truth because the same thing had happened to him. D.M.
said Vierra had touched him three times, but he did not give
any details. This was the first time D.M. had told anyone
that Vierra had sexually assaulted him.
At trial, D.M. testified that Vierra first assaulted him
in November 2013, when he was 13 years old. Vierra and Dora
were dating at the time, and D.M. agreed to help Vierra move
into Dora’s house. D.M. already knew Vierra, because Vierra
had been his baseball coach the previous year. Vierra did not
have a child on the team.
According to D.M., after they finished working for the day,
Vierra told him to take a shower. D.M. started showering, and,
at some point, Vierra got into the shower with him. Vierra told
D.M. they needed to save water. Vierra rubbed soap on D.M.’s
body, including his genitals. Vierra then put his penis inside
D.M.’s anus, which hurt. Vierra took his penis out after a
few seconds and then got out of the shower.
D.M. testified that Vierra assaulted him again on his
18th birthday, in January 2018. D.M.’s grandmother (Dora’s
mother) had been diagnosed with pancreatic cancer and was
living at Dora and Vierra’s house. D.M. decided to sleep at
their house so he could spend more time with his grandmother.
Vierra suggested that D.M. sleep in his bedroom, and D.M.
fell asleep in the room by himself.
At some point during the night, D.M. woke up to Vierra
on top of him. Vierra’s entire weight was resting on D.M.’s back,
pinning him to the bed. Vierra penetrated D.M.’s rectum with
his penis and thrust his body. Vierra ejaculated and said,
“happy birthday.”
6
5. Child Sexual Abuse Accommodation Syndrome
evidence
The prosecutor presented expert testimony on Child Sexual
Abuse Accommodation Syndrome (CSAAS) from Jayme Jones,
who is a clinical psychologist for child victims of sexual assault.
Jones has treated between 700 and 900 child sexual abuse
patients, and she has testified as a CSAAS expert in 80 to 90
cases.
According to Jones, Dr. Roland Summit developed CSAAS
in order to help counter common misunderstandings about child
victims of abuse. Summit developed the original model based
on his own clinical experience as well as the clinical experiences
of other professionals. There have been 30 to 50 research
base studies examining CSAAS, it is generally accepted in the
scientific community, and it has been in regular use for training
and education purposes. Jones uses CSAAS in her practice
while treating child victims of sexual abuse.
Jones explained that CSAAS is actually a misnomer
because it is a model, not a syndrome. CSAAS cannot be used
to diagnose or determine whether sexual abuse actually occurred.
Instead, the model assumes abuse occurred.
Jones discussed the five components of the model, which
help to explain the behavior of child victims of sexual abuse:
(1) secrecy—child sexual abuse typically happens in private,
which sends an implicit message that the child should not
talk about it; (2) helplessness—children are physically
smaller and are taught to do what adults tell them to do;
(3) accommodation—children use a variety of coping mechanisms
to deal with the abuse; (4) delayed disclosure—most disclosures
7
are delayed and come out in pieces; and (5) recantation—
some victims make disclosures and then take them back.
6. Defense evidence
Vierra testified in his own defense. He denied sexually
assaulting the victims or showing them pornography. According
to Vierra, M.L. is highly intelligent, often lies, and knows how
to manipulate situations. M.L. and Vierra did not have a good
relationship, and they often argued. When they argued, Dora
would become angry with Vierra and kick him out of the house.
Vierra’s mother, Mary Vierra, testified that she would
babysit M.L. and J.L. when they were around six and eight
years old, respectively. M.L. and J.L. would take snacks they
were not supposed to have and lie about it. M.L. would act
fragile and cry when confronted with something bad that
he did. M.L. was a “complicated child,” “lied a lot,” and was
manipulative.
When M.L. was around six years old, Mary saw him
playing a game with D.M. that made her uncomfortable. D.M.
would sit on the couch, and M.L. would sit on his lap. They
would face each other and snuggle. Mary told Dora about
the game, but Dora did not react the way Mary expected.
Dora stopped talking to Mary after that. About six weeks later,
Dora told Mary she no longer needed her to babysit the children.
7. Verdicts and sentencing
As to I.V., the jury convicted Vierra of sexual intercourse
or sodomy with a child under 11 years old (Pen. Code, § 288.7,
subd. (a)2; count 1). It found him not guilty of committing a lewd
act upon a child under 14 years old (§ 288, subd. (a); count 14),
which the People charged in the alternative to count 1.
2 Statutory references are to the Penal Code.
8
As to J.L., the jury convicted Vierra of committing a lewd
act upon a child under 14 years old (§ 288, subd. (a); count 2) and
showing pornography to a minor (§ 288.2, subd. (a)(2); count 3).
As to D.M., the jury convicted Vierra of sodomy of a person
under 14 years old (§ 286, subd. (c)(1); count 4) and sodomy by
use of force (§ 286, subd. (c)(2)(A); count 5).
As to M.L., the jury convicted Vierra of sexual intercourse
or sodomy with a child under 11 years old (§ 288.7, subd. (a);
count 6), oral copulation or sexual penetration with a child
under 11 years old (§ 288.7, subd. (b); count 7), four counts of
committing a lewd act upon a child under 14 years old (§ 288,
subd. (a); counts 8, 9, 10, 11), showing pornography to a minor
(§ 288.2, subd. (a)(2); count 12), and continuous sexual abuse
(§ 288.5, subd. (a); count 13).
The jury found true multiple victim allegations on counts 2,
5, 8, 9, 10, 11, and 13 (§§ 1203.066, subd. (a)(7), 667.61, subds.
(b)–(e)). On counts 8, 9, 10, 11, and 13, the jury found that in
the commission of the offenses, Vierra engaged in substantial
sexual conduct with a victim under 14 years old (§ 1203.066,
subd. (a)(8)).
The court sentenced Vierra to an aggregate term of
eight years plus 155 years to life, consisting of the following:
on count 1, 25 years to life; on count 2, 15 years to life; on count 3,
two years concurrent with the base determinate term (count 4);
on count 4, the high term of eight years; on count 5, 15 years
to life; on count 6, 25 years to life; on count 7, 15 years to life;
on counts 8, 9, 10, and 11, four consecutive terms of 15 years
to life; and on count 12, two years concurrent with the base
determinate term (count 4). The court stayed the sentence
9
on count 13 (continuous sexual abuse) in light of the sentence
on counts 8 through 11 (lewd act on a child).
Vierra timely appealed.
DISCUSSION
1. The court’s failure to instruct the jury on lesser
included offenses was harmless
Vierra argues the trial court prejudicially erred by failing
to instruct the jury on lesser included offenses related to count 6
(§ 288.7, subd. (a)) and count 7 (§ 288.7, subd. (b)), which both
concern sexual assaults against M.L. He contends that, because
there is evidence from which the jury could have concluded
M.L. was 11 years old during the first acts of sodomy and oral
copulation, the court was required to instruct on the lesser
included offenses of sodomy with a minor (§ 286, subd. (b)(1))
and oral copulation with a minor (§ 287, subd. (b)(1)).
a. Background
The People charged Vierra in count 6 with sodomy
or sexual intercourse with a child under 11 years old (§ 288.7,
subd. (a)) and in count 7 with oral copulation or sexual
penetration with a child under 11 years old (§288.7, subd. (b)).
As their names suggest, both offenses require the People to
prove the defendant committed the prohibited act with a child
who was under 11 years old.
At trial, the prosecutor presented conflicting evidence
concerning the dates of the offenses. In M.L.’s videotaped
interview, he said Vierra sexually assaulted him for the first time
in January 2019, when he was ten years old. M.L. described
the incident in some detail, including that he “suck[ed]” Vierra’s
penis and felt Vierra’s penis in his “butt.”
10
At trial, M.L. testified that Vierra first touched his genitals
sometime around February 2019. The prosecutor then asked
whether “there [was] another time after that that [Vierra]
touched you or did something to you.” M.L. responded that there
was another time “right around my [11th] birthday,” which was
in mid-March. The prosecutor asked M.L. whether the incident
happened before or after his birthday, and M.L. replied, “I believe
after.”
Seemingly unhappy with M.L.’s response, the prosecutor
asked him, “What was the second time that [Vierra] touched
you?” M.L. replied that it was in March, “[a]round my birthday.”
Upon further questioning, he said it was “after or around”
his birthday, and “a little after my birthday.” The prosecutor
continued to press M.L. on the issue until the court instructed
her at sidebar to stop trying to prime M.L. to give the answer
she wanted.
After the sidebar, the prosecutor directly asked M.L. how
old he was during the second incident. M.L. replied, “I was ten.”
M.L. then testified that he orally copulated Vierra during the
second incident. On cross examination, M.L. clarified that he
orally copulated Vierra a few days before his 11th birthday.
As to the first act of sodomy, M.L. testified on direct that it
happened after his birthday. On redirect, he testified that it was
“really close to my birthday,” but he “believe[d] it was after.”
At the close of the People’s case, Vierra moved to dismiss
all the counts under section 1118.1. In response, the court asked
the prosecutor to summarize the evidence that Vierra sodomized
M.L. while M.L. was under 11 years old. The prosecutor pointed
to M.L.’s forensic interview, in which he said the first act of
11
sodomy occurred when he was ten years old. Based on that
evidence, the court denied Vierra’s motion.
b. Analysis
Even in the absence of a request, a trial court must instruct
the jury on all general principles of law relevant to the issues
raised by the evidence, including lesser included offenses. (People
v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman); People v.
Whalen (2013) 56 Cal.4th 1, 68–69.) A court must instruct on a
lesser included offense whenever there is evidence the defendant
is guilty of the lesser offense but not of the greater. (Whalen,
at pp. 68–69.) However, the court is required to give a particular
instruction sua sponte only if there is substantial evidence
from which a jury composed of reasonable people could find true
the facts underlying the instruction. (Breverman, at p. 162.)
Doubt as to the sufficiency of the evidence to warrant a particular
instruction should be resolved in the defendant’s favor. (People
v. Tufunga (1999) 21 Cal.4th 935, 944.)
An uncharged lesser offense is necessarily included within
a charged offense “if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.”
(People v. Birks (1998) 19 Cal.4th 108, 117; see also People v.
Sloan (2007) 42 Cal.4th 110, 117.) Vierra contends that, under
either test, sodomy and oral copulation with a minor are lesser
included offenses of sodomy and oral copulation with a child
under 11 years old. The Attorney General concedes the issue.
Contrary to Vierra’s contentions—and the Attorney
General’s concessions—sodomy and oral copulation with a minor
are not lesser included offenses under the statutory elements
12
test. Sexual intercourse or sodomy with a child under 11 years
old has three elements: (1) the defendant engaged in sexual
intercourse or sodomy; (2) with a child under 11 years old; and
(3) while the defendant was at least 18 years old. (§ 288.7,
subd. (a); People v. Mendoza (2015) 240 Cal.App.4th 72, 79
(Mendoza).) Sodomy with a minor has two elements: (1) the
defendant engaged in sodomy; (2) with another person who is
under 18 years old. (§ 286, subd. (b)(1).) The former offense
prohibits both sexual intercourse and sodomy, whereas the latter
offense prohibits only sodomy.3 Therefore, an adult defendant
who engages in sexual intercourse with a child under 11 years
old violates section 288.7, subdivision (a), but does not violate
section 286, subdivision (b)(1). Because it is possible to violate
section 288.7, subdivision (a), without violating section 286,
subdivision (b)(1), the latter offense is not necessarily included
in the former under the elements test. (See People v. Mitchell
(2008) 164 Cal.App.4th 442, 460–461 [if the greater offense can
be committed in some manner without also committing the lesser
offense, the latter is not a lesser included offense of the former].)
The same is true of engaging in oral copulation or sexual
penetration with a child under 11 years old (§ 288.7, subd. (b))
and oral copulation with a minor (§ 287, subd. (b)(1)). The former
offense prohibits both oral copulation and sexual penetration,
3 “Sexual intercourse means any penetration, no matter
how slight, of the vagina or genitalia by the penis.” (Mendoza,
supra, 240 Cal.App.4th at p. 79.) Sodomy means “sexual conduct
consisting of contact between the penis of one person and the
anus of another person.” (§ 286, subd. (a).)
13
whereas the latter offense prohibits only oral copulation.4
An adult defendant who sexually penetrates a child under
11 years old, therefore, violates section 288.7, subdivision (b),
but does not violate section 287, subdivision (b)(1). Accordingly,
the latter offense is not a lesser included offense of the former
under the elements test.
Nevertheless, we agree with the parties that, in this case,
sodomy and oral copulation with a minor are lesser included
offenses under the accusatory pleadings test. The People alleged
in the operative information that, when Vierra was an adult,
he engaged in “sexual intercourse and sodomy” (count 6), as
well as “oral copulation and sexual penetration” (count 7), with
M.L., who was under 11 years old. (Italics added.) In order
to prove those allegations, the People necessarily had to prove
all the elements of sodomy and oral copulation with a minor.
Accordingly, sodomy and oral copulation with a minor are
lesser included offenses under the accusatory pleadings test.
We also agree with the parties that the evidence warranted
an instruction on the lesser included offenses. At various
points during his trial testimony, M.L. said the first acts of
oral copulation and sodomy occurred after his 11th birthday.
If true, Vierra would be guilty of engaging in oral copulation
and sodomy with a minor (§§ 286, subd. (b)(1), 287, subd. (b)(1)),
but not engaging in oral copulation or sodomy with a child under
4 Oral copulation “is the act of copulating the mouth of
one person with the sexual organ or anus of another person.”
(§ 287, subd. (a).) Sexual penetration “is the act of causing
the penetration, however slight, of the genital or anal opening
of any person . . . .” (§ 289, subd. (k)(1); see § 288.7, subd. (b).)
14
11 years old (§ 288.7, subds. (a), (b)). Therefore, the court should
have instructed the jury on the lesser offenses.
We next turn to the issue of prejudice. We review
a trial court’s failure to instruct on a lesser included offense
for prejudice under the People v. Watson (1956) 46 Cal.2d 818harmless error standard. (Breverman, supra, 19 Cal.4th at
p. 165.) Such an error “does not require reversal ‘unless an
examination of the entire record establishes a reasonable
probability that the error affected the outcome.’ ” (People v.
Wyatt (2012) 55 Cal.4th 694, 698; People v. Beltran (2013)
56 Cal.4th 935, 955.)
Here, it is not reasonably probable the court’s errors
affected the outcome. M.L.’s testimony at trial provided the
only evidence suggesting the first oral copulation and sodomy
incidents occurred after his 11th birthday. M.L.’s testimony,
however, was generally equivocal, and it was apparent that he
was struggling to recall specific dates. With respect to the first
incident of sodomy, for example, he testified that it happened
“really close” to his birthday, but he “believe[d]” it was after.
With respect to the first oral copulation incident, he initially
testified it was “after or around” his birthday and he “believe[d]”
it was after. Later, he repeatedly testified that it occurred
before his 11th birthday, when he was 10 years old.
M.L.’s account of the incidents during the forensic
interview was far more detailed and reliable. He stated
unequivocally that Vierra engaged in sodomy and oral copulation
with him in January 2019, which was two months before his
11th birthday. M.L. was able to recall specific details about the
date, explaining it was the second night of Dora’s Bible study
class, and was either a Wednesday or Thursday. This was
15
consistent with Dora’s testimony at trial that she started
attending Thursday Bible study classes in January 2019.
Moreover, unlike the trial, the interview was conducted in
an environment and under circumstances designed to make
M.L. feel comfortable.5 It also took place more than a year
before the trial, when the incidents would have been fresher
in M.L.’s mind.
On this record, there is not a reasonable probability
that any of the jurors convicted Vierra of counts 6 and 7 while
remaining unconvinced that both incidents occurred before
M.L.’s 11th birthday. Accordingly, the court’s instructional
errors were harmless and do not require reversal.
2. Substantial evidence supports Vierra’s convictions
on counts 6 and 7
Vierra challenges the sufficiency of the evidence supporting
his convictions on count 6 (§ 288.7, subd. (a)) and count 7
(§ 288.7, subd. (b)), which both concern sexual assaults against
M.L. Vierra asserts there is not substantial evidence that
he engaged in the sex acts while M.L. was under 11 years old,
which is a required element of both offenses.
In considering the sufficiency of evidence in a criminal
appeal, we review the whole record in the light most favorable
to the judgment to determine whether there is substantial
evidence—that is, evidence that is reasonable, credible, and
of solid value—so that any rational trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Burton
(2006) 143 Cal.App.4th 447, 451; People v. Johnson (1980) 26
5 The interviewer testified at trial that when interviewing
a child, her goal is to build rapport and make the child feel safe.
16
Cal.3d 557, 578; In re L.K. (2011) 199 Cal.App.4th 1438, 1446
(L.K.).) We must “ ‘presume in support of the judgment the
existence of every fact the trier could reasonably deduce from
the evidence.’ ” (Johnson, at p. 576; L.K., at p. 1446.)
Here, there is sufficient evidence from which the jury
reasonably could have concluded Vierra engaged in oral
copulation and sodomy of M.L. before his 11th birthday. During
the forensic interview—which the prosecutor played in full
for the jury—M.L. said Vierra first sexually assaulted him
in January 2019, when he was ten years old. M.L. also told
the interviewer that, during the incident, Vierra put his penis
in M.L.’s “butt” and made M.L. “suck” his penis with his mouth.
This evidence alone is sufficient to support Vierra’s convictions
for oral copulation and sodomy of a child under 11 years old.
(See People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the
testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a
conviction”].) Although M.L. gave inconsistent testimony at trial,
it is not our role as the reviewing court to resolve conflicts
in the evidence, make credibility determinations, or reweigh
the evidence. (Ibid.)
3. Substantial evidence supports Vierra’s conviction
for sodomizing I.V.
Vierra argues there is insufficient evidence to support
his conviction in count 1 for sodomizing I.V. (§ 288.7, subd. (a)).
“Sodomy is sexual conduct consisting of contact between
the penis of one person and the anus of another person. Any
sexual penetration, however slight, is sufficient to complete
the crime of sodomy.” (§ 286, subd. (a).) In People v. Paz (2017)
10 Cal.App.5th 1023, we held the sexual penetration element
17
of sodomy “requires penetration of the tissues that surround and
encompass the lower border of the anal canal—that is, it requires
penetration past the buttocks and into the perianal area but
does not require penetration beyond the perianal folds or anal
margin.” (Id. at p. 1038.) Therefore, “penetration beyond the
buttocks and into the perianal folds is sufficient to establish
the requisite penetration—namely, sexual penetration of
the anal opening.” (Id. at p. 1029.) We emphasized that
“mere penetration of the buttocks is not sufficient to establish
penetration of the anal opening,” and we advised prosecutors
to “elicit precise and specific testimony to prove the required
penetration beyond a reasonable doubt.” (Id. at p. 1038.)
Vierra argues there is insufficient evidence that he
penetrated I.V. beyond his buttocks. He contends J.L.’s
testimony and statements about the incident were too
contradictory and vague to support such a finding. He also
points to the lack of testimony from I.V. or physical evidence
of injury to the child’s perianal area.
We agree with Vierra that J.L.’s statements alone are
not sufficient to find, beyond a reasonable doubt, he sodomized
I.V. At trial, J.L. testified that he looked into the bedroom
and saw Vierra “[p]utting his dick on [I.V.’s] diaper.” J.L. had
previously told a forensic interviewer that he witnessed Vierra
“rap[ing]” I.V. by “put[ting] his dick in [I.V.’s] butt.” J.L. never
clarified what he meant by these statements; nor did he ever
explicitly state that Vierra penetrated I.V.’s perianal area. Even
if J.L. had made such a claim, it is doubtful he would have been
in a position to see actual penetration of I.V.’s perianal area.
Therefore, the most a juror reasonably could infer from J.L.’s
18
observations is that Vierra penetrated I.V.’s buttocks, which
alone is not sufficient to show sodomy.
Contrary to Vierra’s suggestions, however, J.L.’s
personal observations were not the only evidence supporting
his conviction. J.L. testified that the incident occurred in 2018,
meaning I.V. would have been either three or four years old
at the time. It would be nearly impossible for a grown adult
to penetrate such a young child’s buttocks without also
penetrating—however slightly—the child’s perianal folds.
The trial court, moreover, instructed the jury that under
Evidence Code section 1108, it could consider evidence that
Vierra committed other sexual offenses when determining
whether he committed a sexual offense against I.V. Accordingly,
from its findings that Vierra sodomized M.L. and D.M.—for
which there was overwhelming evidence—the jury could infer
that Vierra had a propensity to commit sodomy. From this,
the jury reasonably could have inferred it was likely Vierra
committed the same act on I.V. (See People v. Villatoro (2012)
54 Cal.4th 1152, 1165 (Villatoro).) Considered with J.L.’s
statements during the forensic interview and I.V.’s young age
at the time of the incident, the jury reasonably could have
concluded Vierra penetrated I.V.’s perianal area. Accordingly,
substantial evidence supports his conviction on count 1 for
sodomizing a child under 11 years old.
4. The prosecutor did not commit misconduct or violate
Vierra’s constitutional rights by asking questions
about a conversation with his mother
Vierra argues the prosecutor committed misconduct and
violated his constitutional rights by asking him questions about
a conversation in which his mother relayed information from his
19
attorney. Vierra contends the prosecutor’s questions improperly
“[sought] to intrude upon attorney thought processes, strategy
and impressions—areas which fall within the generally
recognized scope of attorney work product and which are
protected by the right to counsel under the state and federal
constitutions.” He also argues the prosecutor’s questions
interfered with the attorney-client relationship and violated
his constitutional right to counsel.
a. Background
In response to a question on cross-examination, M.L.
testified that Vierra’s pubic hair is black. Vierra subsequently
testified that his pubic hair is light brown, but he would trim it
because he has genital herpes and did not want to transmit the
infection to his wife.
After this testimony, the prosecutor informed the court
she had a recording of a jail phone call between Vierra and his
mother, Mary, in which Mary told Vierra to shave his genitals
before the preliminary hearing. The prosecutor also disclosed
that she had a recording of a subsequent call in which Vierra said
he could not shave his genitals because it burned. The court told
the prosecutor she could ask Vierra about the comments and then
use the tapes to impeach him if he denied making them. Vierra
did not object.
On cross-examination, the prosecutor asked Vierra,
“[I]sn’t it true that you had conversations with your mother
when you were in custody about shaving your genitals?” Vierra
responded that they had briefly discussed the issue. The
prosecutor continued, “She told you that your attorney wanted
you to shave your genitals because he was going to present that
at court; isn’t that right?” Vierra replied, “I’m not a hundred
20
percent sure, ma’am, but I believe so.” Vierra then acknowledged
telling his mother it was very uncomfortable to shave his pubic
hair. He explained that it was uncomfortable because he did
not have the same grooming tools in jail as he had at home.
The prosecutor next asked Vierra why it was so important
that he shave prior to the preliminary hearing. Defense counsel
objected on the basis that the question called for attorney-client
privileged information. The court sustained the objection.
A bit later, the prosecutor again asked Vierra why he
had to shave prior to the hearing, to which Vierra responded,
“To take care of myself and to maintenance myself.” The
prosecutor replied, “That’s not what your mom said. She said to
do it because it was at the direction—.” Defense counsel objected,
and the court admonished the prosecutor to “stay away from
that topic, please.” The prosecutor then asked Vierra several
times whether he shaved before the preliminary hearing to try to
discredit M.L. Defense counsel eventually objected, and the court
told the prosecutor to “move on to another topic.” The prosecutor
asked Vierra several more questions about his pubic hair before
the court admonished her to “move on from the pubic hair.”
During a break, the prosecutor told the court she wanted to
play the jail call recordings for the jury. The prosecutor argued
they were relevant because they showed Vierra essentially trying
to manufacture evidence—that he shaved his genitals—in order
to impeach M.L.’s testimony regarding the color of his pubic hair.
Defense counsel told the court that, prior to the preliminary
hearing, Vierra said the victims would not be able to identify his
pubic area because he had shaved. Defense counsel advised him
to continue shaving in case the court wanted to confirm that fact
21
in camera. Defense counsel remarked that “this all stems from
an attorney-client conversation.”
The court noted that, although the conversation between
Vierra and his mother was not privileged, “we’re getting into a
topic now that I’m very uncomfortable about. . . . You’re asking
him to discuss in front of the jury what his attorney might have
told him to do or not to do.” The court continued, “It opens up a
whole new can of worms that’s not probative [of] the actual issue
at hand. . . . [It would be more probative] [i]f he tells his mom,
look, I’m not going to shave because I’ve never done this before,
it makes me feel real uncomfortable[.] [I]f he’s equivocating,
then it’s not that probative to me.”
The court ultimately excluded the recording of the
conversation under Evidence Code section 352, finding it was
prejudicial and “of dubious probative value.”
b. Vierra forfeited his prosecutorial misconduct claims;
they also lack merit
Prosecutorial misconduct violates the 14th Amendment
when it is “so egregious as to deny the defendant a fair trial.”
(People v. Harris (1989) 47 Cal.3d 1047, 1080; see People v. Tully
(2012) 54 Cal.4th 952, 1009–1010.) Even if the prosecutor’s
misconduct does not make the trial unfair, “ ‘ “ ‘the use of
deceptive or reprehensible methods to attempt to persuade either
the court or the jury’ ” ’ ” violates California law. (Tully, at
pp. 1009–1010.) Absent a showing that an objection or request
for admonition would have been futile or that the harm could not
have been cured, an appellant may not complain of prosecutorial
misconduct unless he timely objected to the alleged misconduct
at trial and asked the court to admonish the jury to disregard
22
the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill);
People v. Morales (2001) 25 Cal.4th 34, 43–44.)
We agree with the Attorney General that Vierra forfeited
his prosecutorial misconduct claims by failing to raise a specific
objection and request a curative admonition from the trial court.
On appeal, Vierra contends the prosecutor engaged in misconduct
by suggesting, through her questioning, that defense counsel
instructed him to shave his pubic hair as part of his defense
strategy. Vierra, however, did not object at trial when the
prosecutor first asked him if “[your mother] told you that
your attorney wanted you to shave your genitals because he
was going to present that at court; isn’t that right?” Although
Vierra subsequently objected to similar questions, he did not
do so on the grounds he raises on appeal: that the questions
constituted prosecutorial misconduct, improperly sought
the revelation of attorney work product, and interfered with
the attorney-client relationship. Nor did he seek a curative
admonition from the court.6 His failure to do so forfeits the issue
on appeal. (Hill, supra, 17 Cal.4th at p. 820.)
Even if we were to overlook the forfeiture, we would reject
Vierra’s arguments on the merits. Contrary to his suggestions,
it is not, per se, improper for a prosecutor to question a defendant
at trial about his defense strategy. (See, e.g., People v. Lund
(2021) 64 Cal.App.5th 1119, 1146 [prosecutor did not commit
misconduct by questioning defendant about his decision not to
call an expert witness].) Nor was it improper for the prosecutor
6 We reject Vierra’s conclusory assertion, made without any
meaningful analysis, that an admonition would not have cured
any resulting harm.
23
in this case to explore whether Vierra lied about regularly
trimming his pubic hair in an attempt to discredit M.L.’s
testimony. Although some of the prosecutor’s questions seemed
to call for the disclosure of privileged information, it is a stretch
to characterize them as deceptive, reprehensible, or egregious.
The court, moreover, sustained Vierra’s objections on that basis,
which signaled to the jury that the prosecutor’s questions were
improper.
Nor is it self-evident—and Vierra does not meaningfully
explain—how the prosecutor interfered with the attorney-client
relationship or effectively denied him the right to counsel.
Vierra analogizes to cases in which a state agent was present
at attorney-client conferences or intentionally intercepted
confidential attorney-client communications. (See People v.
Suarez (2020) 10 Cal.5th 116; Morrow v. Superior Court (1994)
30 Cal.App.4th 1252, 1255; Barber v. Municipal Court (1979)
24 Cal.3d 742, 752.) Here, however, Vierra concedes that the
conversation with his mother was not privileged or confidential,
and the prosecutor did not improperly intercept it. He also
does not claim that he inadvertently revealed privileged or
confidential information in response to the prosecutor’s questions.
We fail to see how the prosecutor’s questions, in and of
themselves, interfered with the attorney-client relationship
or effectively denied Vierra the right to counsel.
5. We reverse Vierra’s conviction for continuous
sexual abuse
Vierra argues the jury erroneously convicted him of both
continuous sexual abuse of M.L. (§ 288.5, subd. (a); count 13),
as well as four counts of committing a lewd act on M.L. during
the same time period (§ 288, subd. (a); counts 8–11). He contends
24
the proper remedy is to dismiss the specific lewd act convictions.
The Attorney General concedes the error, but argues the proper
remedy is to reverse the continuous sexual abuse conviction.
Section 288.5, subdivision (a) punishes any person who
lives in the same home with a minor child and who, over a period
of at least three months, engages in three or more sex crimes
with a child under 14, including committing lewd acts as defined
in section 288. Section 288.5, subdivision (b) states a jury
“need unanimously agree only that the requisite number of
acts occurred not on which acts constitute the requisite number.”
To avoid multiple convictions, subdivision (c) states: “No other
. . . lewd and lascivious acts . . . involving the same victim may be
charged in the same proceeding with a charge under this section
unless the other charged offense occurred outside the time period
charged under this section or the other offense is charged in the
alternative.”
In this case, the People charged Vierra with continuous
sexual abuse of M.L. between March 14 and June 30, 2019
(§ 288.5, subd. (a); count 13), as well as four counts of committing
a lewd act on M.L. during the same time period (§ 288, subd. (a);
counts 8–11). The People, however, failed to charge the counts
in the alternative, and the jury convicted Vierra of all five
offenses. The parties agree, as do we, that this was error.
(People v. Johnson (2002) 28 Cal.4th 240, 248.) The only
question is the proper remedy.
In People v. Torres (2002) 102 Cal.App.4th 1053 (Torres),
the court faced a similar situation and concluded the proper
remedy was to dismiss the continuous sexual abuse conviction
and leave the defendant convicted of the specific sex offenses.
The court reasoned that “section 288.5, subdivision (c) gives the
25
prosecutor maximum flexibility to allege and prove not only a
continuous sexual abuse count, but also specific felony offenses
commensurate with the defendant’s culpability, subject only
to the limitation that the defendant may not be convicted of
both continuous sexual abuse and specific felony sex offenses
committed in the same period. It therefore is also appropriate,
in deciding which convictions to vacate as the remedy for a
violation of the proscription against multiple convictions set forth
in section 288.5, subdivision (c), that we leave appellant standing
convicted of the alternative offenses that are most commensurate
with his culpability.” (Id. at p. 1059.) The court concluded the
convictions for specific sex offenses were more commensurate
with the defendant’s culpability because the defendant faced
a greater maximum aggregate penalty for those offenses, and
the trial court had stayed execution of sentence on the section
288.5 offense. (Torres, at p. 1060.)
The same remedy is warranted here. Because of the
number and severity of the lewd act charges, Vierra faced
a significantly greater maximum aggregate penalty for those
counts than he did for the single continuous sexual abuse count.
The trial court, moreover, imposed four consecutive 15-year-
to-life sentences on the specific lewd act offenses, and it stayed
the sentence on the continuous sexual abuse offense.7 As in
Torres, Vierra’s convictions for the lewd act offenses are more
commensurate with his culpability. Accordingly, the appropriate
remedy is to reverse Vierra’s conviction for continuous sexual
7 The court did not orally impose a sentence on the
continuous sexual abuse count before staying the sentence under
section 654. The court’s minute order, however, states it
intended to impose the midterm of 12 years.
26
abuse. (See Torres, supra, 102 Cal.App.4th at p. 1061; People
v. Wilson (2019) 33 Cal.App.5th 559, 574 [“in the case of dual
convictions, the court should leave the defendant convicted of
the offense most commensurate with his culpability”].)
Vierra contends we must reverse the lewd act convictions
under the “special over the general” rule. The “special over the
general” rule provides that when two statutory provisions are
in conflict, the more specific “special” statute generally controls
over the more general statute. (See People v. Williamson
(1954) 43 Cal.2d 651, 654.) Under this rule, Vierra argues,
the continuous sexual abuse statue should control since it is
more specific than the lewd act statute.
The Torres court rejected an identical argument. As the
court explained, in “People v. Hord (1993) 15 Cal.App.4th 711,
720–721, the [Court of Appeal] specifically rejected the contention
that section 288.5 is a special statute that precludes prosecution
for other generally applicable sexual offenses. Moreover,
in People v. Johnson [(2002) 28 Cal.4th 240], the [California
Supreme Court] was careful to note that nothing in its opinion
was inconsistent with the analysis in People v. Hord, supra,
15 Cal.App.4th 711 . . . .” (Torres, supra, 102 Cal.App.4th
at p. 1058.) We agree with the Torres court that the “special
over the general” rule does not apply to this situation. Indeed,
it “would be anomalous if section 288.5, adopted to prevent
child molesters from evading conviction, could be used by those
molesters to circumvent multiple convictions with more severe
penalties . . . than available for a conviction under section 288.5.”
(People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177–1178.)
We also reject Vierra’s contention that we should dismiss
the lewd act convictions because he already faces a long
27
indeterminate aggregate sentence for his other offenses. Vierra’s
sentences on those other counts—which concern completely
separate incidents—are irrelevant to his culpability on the
individual lewd act and continuous sexual abuse counts.
Accordingly, they do not require that we dismiss the individual
lewd act convictions.
6. The court did not abuse its discretion by admitting
CSAAS testimony
Vierra argues the trial court erred in admitting Jones’s
expert testimony regarding CSAAS. He asserts the court failed
to perform its gatekeeper role under Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747 (Sargon),
and, had it done so, it would have excluded the testimony as
unreliable and speculative. He also suggests the evidence failed
to meet the reliability standard mandated by Kelly/Frye.8
We agree with the Attorney General that Vierra forfeited
these issues by failing to raise them below. (See Evid. Code,
§ 353; People v. Ochoa (1998) 19 Cal.4th 353, 414 [“Having failed
to object on Kelly/Frye grounds to the admission of the evidence
. . . defendant has not preserved his claim.”]; People v. Garlinger
(2016) 247 Cal.App.4th 1185, 1193 [defendant forfeited his
contention that testimony was inadmissible under Evidence
Code sections 801 and 802 by failing to object on that basis in
the trial court].) Nevertheless, we will consider his arguments
on the merits in order to forestall his alternative ineffective
assistance of counsel claim.
8 People v. Kelly (1976) 17 Cal.3d 24, 30; Frye v. United
States (D.C. Cir. 1923) 293 F. 1013.
28
For more than three decades, California courts have
consistently held CSAAS evidence is admissible in criminal trials
for the limited purpose of disabusing the jury of common
misconceptions about child victims of sexual abuse. (See, e.g.,
People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin)
[CSAAS evidence may be admitted to rehabilitate a “witness’s
credibility when the defendant suggests that the child’s conduct
after the incident—e.g., a delay in reporting—is inconsistent
with his or her testimony claiming molestation”]; In re S.C.
(2006) 138 Cal.App.4th 396, 418; People v. Patino (1994) 26
Cal.App.4th 1737, 1744; People v. Housley (1992) 6 Cal.App.4th
947, 955–956; People v. Bowker (1988) 203 Cal.App.3d 385, 394.)
Despite this authority, Vierra contends the trial court
should have excluded Jones’s CSAAS testimony because it did
not meet the standard for expert testimony that the California
Supreme Court articulated in Sargon. In that case, the high
court held that “under Evidence Code sections 801, subdivision
(b), and 802, the trial court acts as a gatekeeper to exclude
expert opinion testimony that is (1) based on matter of a type
on which an expert may not reasonably rely, (2) based on reasons
unsupported by the material on which the expert relies, or
(3) speculative.” (Sargon, supra, 55 Cal.4th at pp. 771–772.)
In its gatekeeper function, the “court must not weigh an opinion’s
probative value or substitute its own opinion for the expert’s
opinion. Rather, the court must simply determine whether the
matter relied on can provide a reasonable basis for the opinion or
whether that opinion is based on a leap of logic or conjecture. . . .
The goal of trial court gatekeeping is simply to exclude ‘clearly
invalid and unreliable’ expert opinion.” (Id. at p. 772.) “Except
to the extent the trial court bases its ruling on a conclusion of
29
law (which we review de novo), we review its ruling excluding
or admitting expert testimony for abuse of discretion.” (Id. at
p. 773.)
Vierra has not shown the court abused its discretion by
admitting Jones’s testimony. Jones explained that her testimony
was based on the work of Dr. Roland Summit, who developed
CSAAS using his own clinical experience as well as the clinical
experiences of other professionals. According to Jones, there
have been 30 to 50 research studies examining the model, it has
been in regular use for training and education purposes, and
it is generally accepted in the scientific community. Jones also
explained that she uses the model in her own clinical practice,
in which she has treated somewhere between 700 and 900 child
victims of sexual abuse. Vierra did not dispute this testimony
at trial or present any evidence even suggesting CSAAS
in general, or Jones’s testimony in particular, is invalid or
unreliable. Vierra, in fact, did not even cross examine Jones.
On this record, he has not shown the court abused its discretion
by admitting testimony that was “clearly invalid and unreliable.”
(Sargon, supra, 55 Cal.4th at pp. 772–773.)
Vierra contends Jones’s testimony fails the Sargon test
because she presented no studies to support the validity or
reliability of CSAAS. Sargon, however, requires no such thing.
In any event, as noted above, Jones testified there have been
30 to 50 research studies examining CSAAS. While she did not
specifically testify that those studies concluded CSAAS is valid
and reliable, it is reasonable to infer at least some studies came
30
to that conclusion based on Jones’s testimony that CSAAS is
generally accepted in the scientific community.9
Vierra next claims Jones’s testimony was too speculative
to be helpful for the jury because the CSAAS components she
identified are present in every case in which a child has been
sexually abused. Assuming Vierra’s latter assertion were true,
we fail to see how it would render Jones’s testimony speculative
or unhelpful. The same is true of Vierra’s contention that Jones’s
testimony was inadmissible because both abused and non-abused
children exhibit many of the behaviors that are part of CSAAS.
Contrary to Vierra’s suggestions, this is precisely the reason
Jones’s testimony was helpful for the jurors; it informed them
that some abused children exhibit behaviors that the jurors
might have expected only from non-abused children. Such
behaviors, therefore, are not good indicators of whether a
child has been abused.
There is similarly no merit to Vierra’s suggestion that
Jones’s testimony was inadmissible under Kelly/Frye. In People
v. Munch (2020) 52 Cal.App.5th 464, the court explained that
Kelly/Frye applies only to new experimental scientific evidence
not previously accepted in court. (Munch, at p. 472.) CSAAS
does not fit within that category because it has “been ruled to
be properly admitted by the courts of this state for decades. . . .
9 We decline to consider the articles criticizing CSAAS that
Vierra cites for the first time in his reply brief. The articles were
not before the trial court and are not part of the appellate record.
Nor has Vierra explained why he did not include them in his
opening brief. (See People v. Duff (2014) 58 Cal.4th 527, 550,
fn. 9 [arguments raised for the first time in a reply brief are
forfeited].)
31
[C]ourts have long recognized the well-established relevance,
necessity, reliability, and importance of this evidence.” (Ibid.)
The Munch court further explained that when CSAAS testimony
is based on the expert’s clinical experience and familiarity with
professional literature in the area, it meets the traditional
standard for competent expert opinion without the need for
the additional screening procedures of Kelly/Frye. (Munch,
at p. 473.) We agree with the Munch court and reject Vierra’s
arguments for the same reasons.
7. Vierra’s CALCRIM instructional error arguments
lack merit
Vierra contends three of the trial court’s jury instructions—
CALCRIM Nos. 1191B (evidence of other sex offenses), 1193
(CSAAS evidence), and 331 (testimony from a witness with
a developmental disability)—misstated the law or otherwise
violated his constitutional rights.10
a. Standard of review
We review “the wording of a jury instruction de novo
and assess[ ] whether the instruction accurately states the law.
[Citation.] In reviewing a claim of instructional error, the court
must consider whether there is a reasonable likelihood that
the trial court’s instructions caused the jury to misapply the law
in violation of the Constitution. [Citations.] The challenged
10 The Attorney General contends Vierra forfeited
these arguments by failing to object to any of the challenged
instructions in the trial court. With one exception—that we
discuss below—Vierra contends the court’s instructions misstated
the law. Such arguments are not subject to the general forfeiture
rule, and a defendant may raise them for the first time on appeal.
(People v. Hudson (2006) 38 Cal.4th 1002, 1012.)
32
instruction is viewed ‘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.’ [Citation.]” (People v. Mitchell (2019) 7 Cal.5th 561,
579.) We presume the jurors were able to understand and
correlate all the court’s instructions. (People v. Sanchez (2001)
26 Cal.4th 834, 852.)
b. CALCRIM No. 1191B
Under Evidence Code section 1108, “[i]n 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
inadmissible pursuant to Section 352.” Evidence Code section
1108 applies to evidence of both charged and uncharged sexual
offenses. (Villatoro, supra, 54 Cal.4th at p. 1156.)
At the prosecutor’s request, the trial court instructed
the jury with CALCRIM No. 1191B as follows:
“The People presented evidence that the
defendant committed the crimes as charged
in Counts 1 through 14.
“If the People have proved beyond a reasonable
doubt that the defendant committed one or
more of these crimes, you may, but are not
required to, conclude from that evidence that
the defendant was disposed or inclined to
commit sexual offenses, and based on that
decision, also conclude that the defendant
was likely to commit and did commit the
other sex offenses charged in this case.
33
“If you find that the defendant committed one
or more of these crimes, that conclusion is only
one factor to consider along with all the other
evidence. It is not sufficient by itself to prove
that the defendant is guilty of another crime.
The People must still prove each charge
and allegation beyond a reasonable doubt.”
Vierra contends that by informing the jury it could
“ ‘conclude’ ” he committed an offense based on a finding that
he committed another charged offense, the court’s instruction
effectively permitted the jury to convict him based solely on
evidence that he committed a different crime. He also contends
the instruction is constitutionally infirm because it does not
put a limit on the weight the jury may ascribe to other crimes
evidence.
As Vierra acknowledges, his argument is foreclosed by
binding California Supreme Court precedent.11 In People v.
Reliford (2003) 29 Cal.4th 1007, our state’s high court rejected
a similar challenge to CALJIC No. 2.50.01, which concerns
the use of evidence of other sex offenses as propensity evidence.
Like Vierra, the defendant in that case argued the instruction
improperly conveyed to the jury that it could rely solely on
evidence of the other offenses to convict him of the charged
crime. The high court concluded there was no risk of such
an interpretation given the trial court also instructed the jury
the People must prove every element of the offense beyond a
reasonable doubt, and the other crimes evidence was alone not
11 Vierra states he raises the issue on appeal in order to
preserve it for later review.
34
sufficient to convict the defendant. (Reliford, at pp. 1013–1014.)
The court went on to reject the argument that the instruction
improperly accorded the jury complete discretion to determine
the weight of the other crimes evidence. As the court explained,
“the instruction adequately confines the weight and significance
of uncharged offenses within constitutional bounds by warning
. . . that the uncharged offense is ‘not sufficient by itself to prove
beyond a reasonable doubt that [defendant] committed the
charged crime.’ Jurors would reasonably understand that the
weight and significance they may accord this evidence must
stay within these parameters.” (Id. at p. 1014.)
There are no material differences between CALCRIM
No. 1191B and the instruction at issue in Reliford.12 Moreover,
the trial court’s instruction in this case expressly advised the jury
that other crimes evidence is “one factor to consider along with
all the other evidence,” such evidence “is not sufficient by itself
to prove that the defendant is guilty,” and the “People must still
prove each charge and allegation beyond a reasonable doubt.”
The court also instructed the jury with CALCRIM No. 220, which
defined the reasonable doubt standard and informed the jury a
“defendant in a criminal case is presumed to be innocent” and
this “presumption requires that the People prove a defendant
guilty beyond a reasonable doubt.” As in Reliford, considering
the instructions as a whole, there is no reasonable likelihood
the jury understood CALCRIM No. 1191B in the manner Vierra
12 We reject Vierra’s contention that there is a meaningful
difference between the words “conclude” (found in CALCRIM
No. 1191B) and “infer” (found in CALJIC No. 2.50.01), at least
as they are used in these instructions. (See Black’s Law Dict.
(11th ed. 2019) [defining “infer” as “[t]o conclude from facts or
from factual reasoning”].)
35
suggests. The court’s instruction did not deprive Vierra of the
presumption of innocence or relieve the prosecution of its burden
to prove each offense beyond a reasonable doubt. (See Villatoro,
supra, 54 Cal.4th at p. 1167 [holding a modified version of
CALCRIM No. 1191 that is substantially similar to CALCRIM
No. 1191B did not impermissibly lower the standard of proof
or otherwise interfere with the presumption of innocence].)
Vierra alternatively argues the court erred by failing
to consider the factors listed in Evidence Code section 352
before instructing the jury with CALCRIM No. 1191B. Although
“evidence of the charged offenses may not be excludable under
section 352, . . . nothing precludes a trial court from considering
section 352 factors when deciding whether to permit the jury to
infer a defendant’s propensity based on this evidence.” (Villatoro,
supra, 54 Cal.4th at p. 1163.) “ ‘Even where a defendant is
charged with multiple sex offenses, they may be dissimilar
enough, or so remote or unconnected to each other, that the
trial court could apply the criteria of section 352 and determine
that it is not proper for the jury to consider one or more of the
charged offenses as evidence that the defendant likely committed
any of the other charged offenses.’ ” (Ibid.) A trial court is
not required to expressly weigh the Evidence Code section 352
factors—or expressly state it has done so—before instructing
a jury with CALCRIM No. 1191B. (Villatoro, at p. 1168.) It is
enough that the record supports an inference that the court
implicitly considered them. (Ibid.)
At the outset, we agree with the Attorney General that
Vierra forfeited this issue by failing to raise it below. (See People
v. Valdez (2012) 55 Cal.4th 82, 138 [defendant forfeited argument
based on Evidence Code section 352 by failing to object on that
36
basis at trial].) Nevertheless, we will consider his argument
on the merits in order to forestall his alternative ineffective
assistance of counsel claim.
Contrary to Vierra’s claims, the record supports an
inference that the trial court implicitly considered the Evidence
Code section 352 factors before instructing the jury with
CALCRIM No. 1191B. While discussing jury instructions,
the prosecutor suggested the court instruct the jury it could
consider every charged offense when determining Vierra’s guilt
on every other offense. The court noted it had a “problem with
some of these instructions” and asked the prosecutor if she
was “sure” she wanted to include the pornography counts in
the CALCRIM No. 1191B instruction. The prosecutor responded
that the “law allows us to put it in.” The court replied, “All right.
You’ve got it.” It is apparent from this exchange that the court
was mindful of the Evidence Code section 352 factors—and
particularly the requirement that the risk of undue prejudice
not substantially outweigh the evidence’s probative value—while
deciding whether to give the instruction. Accordingly, the court
did not err in this respect.
c. CALCRIM No. 1193
The trial court instructed the jury with CALCRIM No. 1193
as follows:
“Dr. Jones’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 [the victims’] conduct
was not inconsistent with the conduct
37
of someone who has been molested, and
in evaluating the believability of [their]
testimony.”
Vierra takes issue only with the last phrase of the court’s
instruction, which informed the jurors they could consider
Jones’s testimony “in evaluating the believability of [the victims’]
testimony.” He argues this phrase misstates the law and
erroneously permitted the jurors to use CSAAS evidence as
support for the truth of the allegations made against him.
We do not think it is reasonably likely the jurors
understood the court’s instruction in the manner Vierra suggests.
The instruction plainly and unequivocally informed the jurors
that Jones’s testimony “is not evidence that [Vierra] committed
any of the crimes charged against him.” It also informed the
jurors they may consider the testimony “only” when deciding
whether the victims’ conduct was inconsistent with the conduct
of someone who has been molested. Read in this context, we are
confident the jurors understood the last phrase to mean they
could use Jones’s testimony to evaluate the believability of the
victims’ accounts, but only in light of the evidence suggesting
their conduct was inconsistent with that of an abused child.
(See People v. Gonzales (2017) 16 Cal.App.5th 494, 504 [rejecting
contention that CALCRIM No. 1193 permitted the jury to
conclude the victim was molested].) This is a correct statement
of the law. (See McAlpin, supra, 53 Cal.3d at pp. 1300–1301
[CSAAS evidence may be used to rehabilitate a witness’s
credibility when the defendant suggests the witness’s conduct
is inconsistent with having been molested]; Black’s Law Dict.
(11th ed. 2019) [a “credible witness” is a “witness whose
testimony is believable”].)
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d. CALCRIM No. 331
Section 1127g provides that in “any criminal trial or
proceeding in which a person with a developmental disability,
or cognitive, mental, or communication impairment testifies as
a witness, upon the request of a party, the court shall instruct
the jury” with language substantially identical to CALCRIM
No. 331. Because the jury in this case heard testimony from J.L.,
who is autistic, the trial court instructed it with CALCRIM
No. 331 as follows:
“In evaluating the testimony of a person with
a developmental disability, consider all of the
factors surrounding that person's testimony,
including his . . . level of cognitive development.
“Even though a person with a developmental
disability may perform differently as a
witness because of his . . . level of cognitive
development, that does not mean he . . . is any
more or less credible than another witness.
“You should not discount or distrust the
testimony of a person with a developmental
disability solely because he . . . has such a
disability.”
Vierra takes issue with the second paragraph of the
instruction, which advised the jury that “[e]ven though a person
with a developmental disability may perform differently as a
witness because of his . . . level of cognitive development, that
does not mean he . . . is any more or less credible than another
witness.” He contends this admonition is flawed because if
a witness’s developmental disability “causes him to perform
39
differently than other witnesses, his testimony must reflect
an impaired ability to perceive, understand, remember or
communicate.” Therefore, he suggests, by instructing the jurors
to ignore differences in J.L.’s performance as a witness, the court
essentially told them to ignore or discount his impairments in
perceiving, understanding, remembering, or communicating,
which were central to his credibility.
We fundamentally disagree with the central premise of
Vierra’s argument. Contrary to his contentions, a difference in
a witness’s performance due to a developmental disability does
not necessarily reflect an impaired ability; instead, it may simply
reflect a different ability. It is precisely because of common
misconceptions like Vierra’s that instructions such as CALCRIM
No. 331 are necessary. Moreover, as Vierra acknowledges,
courts have consistently upheld the constitutionality of
CALCRIM No. 331 and other similar instructions. (See, e.g.,
People v. Catley (2007) 148 Cal.App.4th 500 (Catley) [upholding
CALCRIM No. 331]; People v. Byers (2021) 61 Cal.App.5th 447,
457 [same]; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393
[upholding similar jury instruction concerning child witnesses];
People v. McCoy (2005) 133 Cal.App.4th 974, 978–980 [same].)
In Catley, for example, the court held CALCRIM No. 331
does not unduly inflate the testimony of the witness or otherwise
violate a defendant’s right to due process. (See Catley, supra,
148 Cal.App.4th at pp. 507–508.) The court explained that,
like a similar instruction concerning child witnesses, CALCRIM.
No. 331 “ ‘provides sound and rational guidance to the jury
in assessing the credibility of a class of witnesses as to whom
“ ‘traditional assumptions’ ” may previously have biased the
factfinding process.’ ” (Catley, at p. 508.) Moreover, although
40
a defendant is entitled to fairness, “ ‘he or she cannot complain
of an instruction the necessary effect of which is to increase the
likelihood of a fair result.’ ” (Id. at p. 507.) We agree with the
Catley court and reject Vierra’s arguments for the same reasons.
8. We remand the case for the trial court to comply with
Senate Bill No. 567
Vierra contends his case must be remanded for
resentencing on counts 3, 4, and 12 in accordance with Senate
Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). The
Attorney General concedes the issue.
When the trial court sentenced Vierra, section 1170
provided that “[w]hen a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the choice
of the appropriate term shall rest within the sound discretion
of the court.” (Former § 1170, subd. (b).) Under this provision,
the trial court was free to impose an upper term sentence
based on any aggravating circumstances it deemed significant,
so long as they were reasonably related to the decision being
made. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
While Vierra’s appeal was pending, Senate Bill 567 went
into effect. It restricts a trial court’s discretion to impose an
upper term sentence. Effective January 1, 2022, “[t]he court
may impose a sentence exceeding the middle term only when
there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle
term, and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond
a reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subd. (b)(2).) The newly amended section 1170
also directs the court to impose the lower term when certain
41
mitigating circumstances are present, unless the court finds
the aggravating circumstances outweigh the mitigating
circumstances. (§ 1170, subd. (b)(6).)
The parties agree, as do we, that because Vierra’s case
was not yet final when Senate Bill 567 went into effect, he is
entitled to the retroactive benefit of the ameliorative legislation.
(See In re Estrada (1965) 63 Cal.2d 740, 744–745; People v. Flores
(2022) 73 Cal.App.5th 1032, 1039.) The parties also agree that
the trial court did not comply with Senate Bill 567 when it
sentenced Vierra, and the appropriate remedy is to remand
the case. We agree with the parties and remand the case
for compliance with Senate Bill 567. On remand, the People
may elect either to have a trial on the aggravating factors
or to submit to resentencing on the current record.
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DISPOSITION
We reverse David Vierra’s conviction for continuous
sexual abuse (§ 288.5, subd. (a); count 13). We vacate his
sentence and remand the case for further proceedings in
accordance with this opinion. We affirm the judgment in all
other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
RICHARDSON (ANNE K.), J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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