People v. Rodriguezkepley CA4/2 (2025) · DecisionDepot
People v. Rodriguezkepley CA4/2
California Court of Appeal May 9, 2025 No. E082102Unpublished
Filed 5/9/25 P. v. Rodriguezkepley CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082102
v. (Super.Ct.No. INF2100281)
KENNETH MICHAEL OPINION RODRIGUEZKEPLEY,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.
Affirmed in part, modified in part, and remanded for resentencing.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and James
Spradley, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted defendant and appellant Kenneth Michael Rodriguezkepley, aka
Kenneth Michael Rodriguez Kepley, of two counts of sexual penetration with a child 10
years old or younger (Pen. Code, § 288.7, subd. (b)1) and one count of aggravated sexual
assault of a child through sexual penetration as defined by section 289, subdivision (a)
(§ 269, subd. (a)(5)). On September 8, 2023, the trial court sentenced him to serve a total
indeterminate term of 30 years to life in state prison. He appeals contending: (1) there is
insufficient evidence of forcible sexual penetration (§ 269, subd. (a)) as alleged in
count 3; (2) the court prejudicially erred in admitting the victim’s text messages to a
friend as prior consistent statements; (3) CALCRIM No. 1191B improperly and
prejudicially allowed the victim to corroborate her own accusations; (4) expert testimony
about child sexual abuse accommodation syndrome (CSAAS) was irrelevant and
inadmissible; (5) the court erred in instructing the jury that it could consider CSAAS
evidence in evaluating the believability of the victim’s testimony; and (6) the court
prejudicially erred in failing to instruct on a certain lesser included offense. We agree the
evidence is insufficient to support forcible sexual penetration as alleged in count 3;
otherwise, we find no merit in his remaining arguments. We modify defendant’s
conviction on count 3 to commission of nonforcible sexual penetration with another
person who was under 18 years old (§ 289, subd. (h)), vacate the sentence, and remand
the matter for resentencing.
1 Unlabeled statutory references are to the Penal Code.
2
I. PROCEDURAL BACKGROUND AND FACTS
A. The Prosecution’s Case.
1. The family
The victim, Jane Doe (born in 2009), was eight years old when her mother, C.P.
(herein mother), began dating defendant in 2017. In 2018, the three began living together
in Palm Desert, and the couple married in January 2020. As a stepfather, defendant was
very forceful, telling Doe, “I’m taking care of you” and “to call him dad.” He required
Doe to wash dishes, clean her room, and take out the trash. This made Doe angry; she
would refuse to do what defendant asked and talked back, telling him, “You’re not my
dad,” and “Who are you to tell me what to do?” Mother perceived that it was difficult for
Doe to accept defendant as a father figure and told him to speak with more empathy.
Doe has several half sisters who live in Texas; two of them reside with her
biological father, who was a central figure in her life until she was two years old. Doe
saw her sisters during summer visits to Texas and thought about what it would be like to
live in Texas. She would have liked to live with her father, but he was “short on money.”
In California, Doe felt left out because mother spent too much time with defendant. As
his presence in her life became an issue; she threw tantrums, stated a desire to live in
Texas, and threatened suicide.
From 2017 to 2021, mother worked long hours and entrusted defendant with
Doe’s supervision. Sometimes, when mother returned home, she would see the two
sleeping in the same bed, but it did not concern her because Doe was afraid of the dark.
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In March 2020, Doe began having hygiene problems and had to be reminded to take a
shower.
In February of 2021, when Doe was in the 6th grade, a social worker with Child
Protective Services (CPS) and two deputy sheriffs came to the family home, informed
mother about an accusation, and interviewed her and Doe. Mother ended her relationship
with defendant and moved Doe to Los Angeles County.
2. Doe’s text messages to S.T.
In 2021, S.T. and Doe attended sixth grade through online school. They
exchanged phone numbers and got to know each other over text messages. In February,
Doe texted that “her stepdad was touching her,” but told S.T. “not to tell anyone” and to
delete the text. After confirming that Doe was safe, S.T. deleted the message. On
February 20, 2021, S.T. told her mom, R.T., about the text. R.T. called the police and
told Deputy Sheriff Kendall Martinez that one of her daughter’s classmates was being
touched inappropriately by her stepfather. R.T. and S.T. recovered Doe’s deleted text
messages, read them to the deputy over the phone, and sent them to him via emailed
screenshots.
3. Doe’s first interview
After speaking with another friend of Doe, Deputy Martinez called Child
Protective Services. The deputy, a sergeant, and social worker Lakeya Johnson went to
Doe’s home and interviewed her. Doe told Johnson that defendant had touched her
inappropriately on her breasts and inside her vagina. She did not tell her mom about the
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touching because defendant told her not to and she was scared, but she wanted it to stop
because it made her uncomfortable. Doe was referred for a forensic interview.
4. The forensic evidence
On February 22, 2021, Denise Bowman interviewed Doe who reported that she
was eight or nine years old when she first met her stepdad. He first touched her when she
was nine years old and continued doing so until she was 11. She said that he used his
hand and touched her “down there and it was just very uncomfortable, and [she] didn’t
like it at all.” Doe defined down there as her private part where “we pee.” The first time
it happened, defendant asked her to take a nap in his bedroom. While in bed, he put his
hand underneath her shorts and underwear, moving it “and then he went in [her] pee hole,
and it would start to hurt a lot.” She said that she almost cried. He told her not to tell
anyone. The last time he touched her vagina was in January of 2021 when she was in the
sixth grade. Defendant put his finger in her pee hole, causing pain.
Doe described a touching in January 2021 when she was packing to go to her
grandmother’s house and defendant asked her to take a nap with him. She was not tired,
but he kept asking, so she complied. He put his hand inside her shirt and grabbed her
breasts. Sometimes he would fall asleep but if she tried to get away, he would grab and
restrain her. When she heard him say take a nap, she was “scared.” She “kind of had a
panic attack and . . . was just really scared and . . . couldn’t, like it was hard to breathe.”
The same thing happened when she was in the fifth grade.
One time, in November 2020, defendant went into her bedroom at night, put his
hand down her pants causing pain, and grabbed her breasts. When she was in the fourth
5
grade, he told her to come in his room to watch TV, but then insisted they take a nap
instead. He grabbed her and put his hand down her pants. He would also make her
shower with him (about five times) and told her not to tell her mom. This upset her and
“stressed [her] out.” While naked in the shower, he would stare at her in an
uncomfortable way. When she asked him not to shower with her, he replied, “Why?”
On February 23, 2021, Nurse Practitioner Kelly Deckard performed a 30-minute
non-acute exam on Doe and took pictures of her vagina and anus. Although the exam
revealed some abnormal findings, they were not specific to sexual abuse.
5. Doe’s testimony
Doe became emotional when she identified defendant, explaining she was shocked
to see him and scared to be at court. She was first introduced to him when she was eight
years old and in the third grade. Soon after, he moved into her home, and her mother
married him in January of 2020.
Doe testified that defendant touched her in a way that made her feel uncomfortable
on multiple occasions when she was nine, 10, and 11 years old. He first touched her
when she was in the fourth grade (2018-2019 school year). She identified private parts as
her breasts, butt, and where she goes pee. He used his hand and touched her private area
(the one used “for peeing”) underneath her clothing. She could not recall what he did
with his hand or how long the touching lasted, but she later stated that his hand went
between the lips of her vagina. Afterwards, he told her not to tell anyone, and she did not
do so because she was afraid he would threaten her or people would not believe her.
6
On one occasion, when Doe was in the fourth or fifth grade, defendant pulled her
into the master bedroom (to take a nap) and closed the bedroom door. He touched her
private area “between the legs” underneath her underwear. He rubbed against her skin.
She did not say anything because she feared he might do something worse. When she
tried to move away, he pulled her back. He penetrated her vagina with his finger, causing
her tightness and pain.
When Doe was in the sixth grade, attending online school, defendant touched her
after her mom left for work. He would get into her bed under the covers and touch her
vagina with his hand—skin to skin. He also touched her breasts on several occasions.
On one occasion, he went into her room around midnight when her mom was asleep; she
woke up when she heard her door creak open. He walked to her bed, got under the
covers, and touched her breasts. This happened when she was in the fourth or fifth grade.
Doe did not tell anyone; the touching made her feel uncomfortable and afraid.
One time when Doe was 10 years old (after defendant had touched her), he told
her to go in the master bedroom shower, and he joined her. They were both naked. She
tried to not look at him because she was scared to see him naked. On another occasion,
he joined her in the shower; again, she felt uncomfortable. Doe tried not to look at him.
He told her not to tell her mom that they were taking showers together.
By way of text messages, Doe told three friends (S., R., and B.) about defendant’s
actions, but told them not to tell anyone or post it on social media.2 In February 2021,
2 An expert in CSAAS testified for the prosecution; her testimony is summarized in argument II.D.1.
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she reported defendant’s actions because she wanted them to stop. Doe previously told
B., her best friend, about defendant’s actions. Immediately before and after her interview
with the deputy and social worker, Doe texted B. that her mother found out; B. replied
that defendant should get what he deserves. Doe said she told a lady and a police officer
who had come to her home. B. replied, “At least you told an adult. . . . [¶] . . . [Good job
bestie]. . . . [¶] . . . So what happened? Did your mom break up with your stepdad?” Doe
stopped responding because she had given her phone to the deputy.
B. The Defense.
Patricia Z. (Patty) lived with Doe and her mom from September 2017 through
March of 2020; Doe called her Grandma Patty and the two spent a lot of time together.
Patty testified that defendant moved in with them in 2018, but she was often not at the
home because she had a full-time job and was “pretty active in [the] community.”
Ruben T. met defendant in 2017; the two worked together and played video games
after work. Between 2018 and 2021, Ruben went to defendant’s home; sometimes Doe
was there. He once heard defendant tell her to do the dishes, but she “looked at him,”
and said, “Who are you to tell me to do the dishes?”
II. DISCUSSION
A. Insufficient Evidence of Aggravated Sexual Assault
In count 3 of the information, the prosecution alleged, and the jury later found,
that between August 17, 2020, through February of 2021, defendant committed an
aggravated sexual assault of Doe, in violation of section 269, subdivision (a). Defendant
8
contends there is insufficient evidence to show that he used force, fear, violence, menace,
or duress to accomplish this act. We agree.
1. Standard of review
“‘“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’”’ [Citation.] It is not our job to
reweigh witness credibility or the evidence. [Citations.]” (People v. Martinez (2024)
105 Cal.App.5th 178, 188-189.)
2. Legal principles
An aggravated sexual assault, as defined in section 269, subdivision (a), includes
the charged crime of sexual penetration upon a child. (§§ 269, subd. (a)(5) & 289,
subd. (a)(1)(B)); see CALCRIM No. 1123.) A conviction for this crime requires
substantial evidence the act of sexual penetration was “accomplished against the victim’s
will by means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim.” (§ 289, subd. (a)(1)(B).) A showing of use of any one of
the factors of force, fear, violence, or duress will suffice to establish the offense is an
aggravated sexual offense. (§ 289, subd. (a)(1); see CALCRIM No. 1045.)
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3. Analysis
According to Doe, count 3 occurred when she was 11 years old, in the sixth grade,
between August 2020 and February 2021; defendant came into her bedroom in the
middle of the night, put his hand down her pants, and placed his finger in her “pee hole”
and it hurt. While testifying, Doe did not remember how defendant touched her or if his
fingers went between the lips of her vagina, but she did say the touching was skin to skin.
The jury received CALCRIM No.1045. During closing, the prosecutor argued defendant
used force by grabbing or pulling Doe back when she tried to get away. He also
maintained that duress was present because Doe was only 11 years old while defendant
was an adult, he was bigger, stronger, a parental figure, he decides what she gets to do,
she felt threatened, and she felt afraid to disclose his actions.3 In response, defense
3 “The . . . defendant accomplished the act by force, fear, duress, or menace.·. . . [¶] . . . An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. [¶] Oh, you mean like grabbing them and pulling them back when they try to get away? They’re only 9 years old, 10 years old, 11 years old.· When he’s bigger, stronger. That’s force. That’s just one theory.· That’s just one way. Because we see the ‘or.’ ‘Force, fear, violence, duress, or menace.’ I would submit that’s been proven in the way the defendant goes about conducting his business. [¶] But we have this definition of duress here. And I would submit it’s just as the judge read it. That’s the law. [¶] Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that is enough to cause a reasonable person of ordinary sensitivity to do something that he or she would not otherwise do. [¶] Then it gives us more instruction on this: [¶] When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant. [¶] So an 11-year-old compared to the defendant, we know that one is in a position of power. He gets to decide if he wants to exact a punishment. He gets the power of being there, deciding what she gets to do, has the power of being bigger, stronger, the parental figure. [¶] We heard from (Jane Doe) as she talked about the incidents, that she felt threatened. That when the defendant told her, ‘You can’t tell your mom,’ how she felt, how she felt afraid to even disclose it to anyone. [footnote continued on next page]
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counsel argued there was no evidence defendant used force to accomplish the act, or that
Doe was afraid of defendant: “Count 3, the aggravated sexual assault. . . . [Doe] says two
different things with regard to Count 3. She says it was hugging or – and later on in the
video, she says it was penetration. . . . [¶] . . . [¶] . . . Other time, touched vagina in the
6th grade, 6:30 a.m., under the covers, don’t remember if it hurt or not. [¶] But we’re not
hearing about any other force that is used to accomplish this act. And what the
prosecution is then relying on is a backup plan, is that because of his position in the
household, because he was stepdad, that she was afraid. [¶] She wasn’t afraid of him.
He never spanked her. He never threatened her. He never disciplined her even. She
spoke her mind. She spoke her mind on a daily basis. She spoke her mind when she
says, ‘You’re not my dad.’”
As applied to aggravated sexual assault crimes, “‘[a] defendant uses “force” if the
prohibited act is facilitated by the defendant’s use of physical violence, compulsion or
constraint against the victim other than, or in addition to, the physical contact which is
inherent in the prohibited act.’ [Citation.] ‘The evidentiary key to whether an act was
forcible is not whether the distinction between the “force” used to accomplish the
prohibited act and the physical contact inherent in that act can be termed “substantial.”
Instead, an act is forcible if force facilitated the act rather than being merely incidental to
the act.’ [Citation.] ‘[A]cts of grabbing, holding and restraining that occur in
[¶] I would submit these are the sort of circumstances we can look at to determine if duress is here. That sort of interplay of power the defendant took.· His stepdaughter?· I’d submit that’s duress. It’s met by force, but I would submit also duress. The defendant accomplished his act by using force and duress.”
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conjunction with the lewd acts themselves’ are sufficient to support a finding that the
lewd act was committed by means of force. [Citation.]” (People v. Morales (2018)
29 Cal.App.5th 471, 480.) The trial court instructed the jury that “[a]n act is
accomplished by force if a person uses enough physical force to overcome the other
person’s will.” (CALCRIM No. 1045.)
On appeal, defendant argues there was “absolutely no evidence presented” that he
“pulled [Doe] either into a bedroom or closer to his body while she tried to get away.
[He] said absolutely nothing to her on this occasion” that occurred sometime between
August 2020 and February 2021. We agree. Nonetheless, the Attorney General argues
defendant’s “forcible conduct on [the] prior occasions[ when Doe was nine and 10],
coupled with evidence that the act in count three was analogous to the acts during prior
occasions, constituted circumstantial evidence that [he] also used force in count three.”
Not so. Defendant was charged with three separate acts, and “the distinctions between
these acts is important.” As to count 3, the record is void of any evidence that defendant
moved Doe, physically restrained her, or grabbed her to stop her from leaving in order to
accomplish the charged offense. (See People v. Morales, supra, 29 Cal.App.5th at p. 480
[force used when defendant held the victim in such a way that she could not move while
he positioned her up against the trunk of a tree and penetrated her private parts with his
finger]; People v. Alvarez (2009) 178 Cal.App.4th 999, 1005 [“acts of grabbing, holding
and restraining that occur in conjunction with the lewd acts themselves” satisfied the
force requirement.].) Thus, there is insufficient evidence the aggravated sexual assault
was committed by force. We now consider whether there is sufficient evidence of duress.
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“‘[D]uress involves psychological coercion. Duress can arise from various
circumstances, including the relationship between the defendant and the victim and their
relative ages and sizes. . . . “Where the defendant is a family member and the victim is
young, . . . the position of dominance and authority of the defendant and his continuous
exploitation of the victim” [are] relevant to the existence of duress.’” (People v.
include threats to harm the victim, physically controlling the victim when the victim
attempts to resist, and warnings to the victim that revealing the molestation would result
in jeopardizing the family.’ [Citations.]” (People v. Veale (2008) 160 Cal.App.4th 40,
46.) Because “duress is measured by a purely objective standard,” “the focus must be on
the defendant’s wrongful act, not the victim’s [subjective] response to it.” (People v.
Soto (2011) 51 Cal.4th 229, 246.)
In Espinoza, the Court of Appeal considered whether the defendant committed
multiple lewd acts by duress. The victim was the defendant’s 12-year-old daughter and a
student in special education classes. (Espinoza, supra, 95 Cal.App.4th at p. 1292.) When
he molested her on five occasions, she was “‘too scared to do anything. . . .’” (Id. at
pp. 1292-1293.) After reporting his actions to school personnel, the victim was “‘very
worried about her own safety in going home.’” (Id. at p. 1295.) The Espinoza court
understood “‘[d]uress can arise from various circumstances, including the relationship
between the defendant and the victim and their relative ages and sizes. . . . “Where the
defendant is a family member and the victim is young, . . . the position of dominance and
13
authority of the defendant and his continuous exploitation of the victim” [are] relevant to
the existence of duress.’” (Id. at p. 1320.)
Nonetheless, the Espinoza court found insufficient evidence of duress, explaining:
“The only way that we could say that defendant’s lewd act on [the victim] and attempt at
intercourse with [her] were accomplished by duress is if the mere fact that he was [her]
father and larger than her combined with her fear and limited intellectual level were
sufficient to establish that the acts were accomplished by duress. What is missing here is
the ‘“direct or implied threat of force, violence, danger, hardship or retribution sufficient
to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which
otherwise would not have been performed or, (2) acquiesce in an act to which one
otherwise would not have submitted.”’ [Citation.] Duress cannot be established unless
there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an
implied threat . . . .’ [Citation.] No evidence was adduced that defendant’s lewd act and
attempt at intercourse were accompanied by any ‘direct or implied threat’ of any kind.
While it was clear that [the victim] was afraid of defendant, no evidence was introduced
to show that this fear was based on anything defendant had done other than to continue to
molest her. It would be circular reasoning to find that her fear of molestation established
that the molestation was accomplished by duress based on an implied threat of
molestation.” (Espinoza, 95 Cal.App.4th at p. 1321.) The court noted “‘the Legislature
has recognized that all sex crimes with children are inherently coercive.’” (Ibid.)
Here, as in Espinoza, there is no evidence defendant used any direct threats when
committing the offense charged in count 3. Nonetheless, the Attorney General argues
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(1) the reasoning in Espinoza “has been undermined in other cases,” (2) the case is
“factually distinguishable,” and (3) the evidence shows that defendant “caused Jane
Doe’s fear of harm through an implied threat, and at the very least knowingly took
advantage of her fear to sexually exploit her.” We are not convinced by these arguments.
First, Espinoza remains good law. Second, the factual differences amount to distinctions
without a difference given the similarities. As in Espinoza, defendant did not grab or
restrain Doe, nor did she resist, cry, or ask defendant to stop or leave her bedroom. And
finally, there is no evidence defendant caused Doe’s fear through any threats, direct or
implied, that she would suffer adverse consequences if she did not acquiesce to
defendant’s demands. While she admitted she was “afraid of him threatening [her] or
something or, like, people not believing [her],” she admitted he did not threaten her.
Moreover, Doe did not fear defendant, as evidenced by her talking back to him,
exclaiming, “You’re not my dad!” and “Who are you to tell me what to do?”
In short, there is insufficient evidence defendant committed the offense charged in
count 3 by means of force, fear, violence, menace, or duress. However, he admits there is
evidence of sexual penetration. When there is overwhelming evidence that a defendant is
guilty of a lesser included offense, the conviction may be reduced to the lesser offense.
(§ 1181; People v. Steger (1976) 16 Cal.3d 539, 553; People v. James (2014)
230 Cal.App.4th 1256, 1265.) Accordingly, we reduce defendant’s section 269,
subdivision (a), conviction to reflect a conviction of the lesser included offense of
nonforcible sexual penetration under section 289, subdivision (h), and remand the matter
for resentencing. (Espinoza, supra, 95 Cal.App.4th at pp. 1321-1322.)
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B. Admission of Doe’s Text Messages as Prior Consistent Statements
Defendant contends the trial court erred in admitting Doe’s text messages pursuant
to Evidence Code section 791.
1. Further background information
Prior to Doe testifying, the prosecutor informed the trial court he intended to
introduce her text messages to her friend as prior consistent statements. The court
reserved ruling on the matter.
On direct examination, Doe testified that she first tried to lie to the deputy and the
social worker by denying being touched by defendant. On cross-examination, defense
counsel challenged her trial testimony as being inconsistent with her initial denial of
being touched. Prior to re-direct, the prosecutor sought to admit the text messages
between Doe and her friend, B. Defense counsel objected on the grounds of multiple
hearsay, explaining he was impeaching Doe’s current testimony, not her prior statements.
Referencing Evidence Code, section 791, subdivisions (a) and (b), the trial court
explained there are multiple ways for prior consistent statements to come in.4 The court
found that, during cross-examination, there was “an implication at least that [Doe] is not
4 The trial court summarized Evidence Code section 791, as follows: “‘Evidence of a statement previously made by a witness that is consistent with their testimony at the hearing is inadmissible to support credibility unless it is offered after.’ [¶] And then we get section (a). ‘Evidence of a statement made by the witness that is inconsistent with any part of the testimony at the hearing has been admitted for the purpose of attacking credibility, and the statement was made before the alleged inconsistent statement’; [¶] ‘Or,’ subdivision (b), ‘An express or implied charge has been made that the testimony at the hearing is recently fabricated or is influenced by a bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.’”
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telling the truth now about what happened.” However, the court asked the parties to
address whether Doe’s earlier statement was made prior to the time for a motive to
fabricate or bias existed. Defense counsel argued that a bias or motive existed when Doe
reached out to S. weeks prior to her (Doe’s) text messages to B. Counsel explained that
because there was no recent fabrication, Evidence Code section 791 did not apply. The
prosecutor argued that Doe was not lying when she told her friends what was happening
because she told them not to say anything. However, the prosecutor noted that defense
counsel had highlighted Doe’s failure to tell the social worker and the initial responding
officer about the “depth or full extent of what happened to her.”
Acknowledging Doe’s silence about what had happened, the trial court found
Doe’s text messages to B. admissible under Evidence Code section 791, subdivision (a).
The court explained, “[T]he testimony did come out that—on cross-examination, that
initially she did not state that it happened—and I’m paraphrasing here, obviously—
because she was so scared. This is when she’s talking to the social worker. And then
after that, she said that it did happen. [¶] If there is a statement which was made prior to
that inconsistent statement because that statement—that telling the social worker that it
didn’t happen is inconsistent with her testimony, obviously, here on the stand that it did
happen. And then if there is a statement prior to that in which she also said that it
happened, it appears to me that at least that much should be admissible under [Evidence
Code section] 791[, subdivision ](a). . . . [¶] I think the motive to fabricate arose at the
point she decided that she no longer wanted [defendant] in her life, and she would rather
go somewhere else. I think that’s where the motive to fabricate arose, if there was
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fabrication, and I’m not making a judgment one way or the other, but if there was
fabrication, that was the motive. That is the improper motive, is to lie because she
doesn’t like [defendant], or call it for what it is. [¶] So I think that the statements prior to
that—the statements made to [S., B.], those all arose way after that motive.” Defense
counsel replied, “Yes. I’ll submit, Your Honor.” The court also warned the prosecutor to
be careful of questions invoking multiple layers of hearsay.
2. Legal principles
Evidence of a statement that was made other than by a witness while testifying at
the hearing and that is offered to prove the truth of the matter stated is hearsay and is
except in two specified circumstances, out-of-court statements by a testifying witness that
are consistent with the witness’s testimony fall within this hearsay prohibition. Under the
first exception, prior consistent statements may be admitted if they predate an
inconsistent statement used to impeach the witness’s testimony. Under the second
exception, prior consistent statements may be admitted after the witness’s testimony has
been challenged as “recently fabricated or [a]s influenced by bias or other improper
motive,” so long as the prior consistent statement was made “before the bias, motive for
fabrication, or other improper motive is alleged to have arisen.” (Evid. Code § 791,
subd. (b); see People v. Kennedy (2005) 36 Cal.4th 595, 614.) Additionally, Evidence
Code section 1236 reiterates that “[e]vidence of a statement previously made by a witness
is not made inadmissible by the hearsay rule if the statement is consistent with his [or
her] testimony at the hearing and is offered in compliance with [Evidence Code s]ection
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791.” A challenge to a trial court’s rulings under Evidence Code sections 791 and 1236
is reviewed for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725 [abuse
of discretion standard of review applies “to any ruling by a trial court on the admissibility
of evidence, including one that turns on the hearsay nature of the evidence in question”].)
In evaluating whether there was an abuse of discretion a “‘“decision will not be reversed
merely because reasonable people might disagree.”’” (People v. Carmony (2004)
33 Cal.4th 367, 377 [no abuse of discretion “unless [court’s] decision is so irrational or
arbitrary that no reasonable person could agree with it.”].)
3. Analysis
Defendant argues Doe’s text messages to B. did not qualify as prior consistent
statements under Evidence Code section 791 “because any inconsistent statement [she]
may have made to [the deputy or social worker] was not admitted for the purpose of
attacking her credibility.” According to defendant, Doe admitted, on direct examination,
that she “tried to lie” to the deputy and the social worker, but then told them what
happened because she wanted the touching to stop. Defendant asserts the prosecutor’s
questions were not aimed at attacking Doe’s credibility; rather, they sought to elicit
evidence about when she felt ready to tell somebody, other than the friends, about
defendant’s actions. Defendant further asserts that his trial counsel did not ask Doe any
“questions in order to attack her credibility. If anything, defense counsel rehabilitated her
credibility.” Thus, defendant argues the admission of Doe’s text messages with B.
“improperly bolstered the credibility of her testimony, [and] amounted to a denial of state
and federal due process by rendering the trial fundamentally unfair.” We disagree.
19
Defendant would have us believe that his trial counsel questioned Doe about her
inconsistent statements for the purpose of “rehabilitating” her credibility. However, his
assertion runs afoul of counsel’s direct representations at trial. According to trial
counsel, the defense sought to use Doe’s prior statements to the detective and the social
worker to impeach her current testimony because, as defendant admits, “[t]he
prosecution’s entire case depended on Jane Doe’s credibility.” As such, the trial court
properly admitted the text messages as prior consistent statements which predate Doe’s
inconsistent statements to the detective and the social worker that defense counsel sought
to use for impeachment purposes. Also, the jury was instructed that it could consider a
witness’s prior statements “[t]o evaluate whether the witness’s testimony in court is
believable” and “[a]s evidence that the information in those earlier statements is true.”
(CALCRIM No. 318; People v. Thomas (2023) 14 Cal.5th 327, 394.)
C. The Trial Court Properly Instructed the Jury with CALCRIM No. 1191B
Defendant contends the trial court committed prejudicial error in instructing the
jury with CALCRIM No. 1191B because it lowered the prosecution’s burden of proof.
He asserts the instruction, “as given in this case, improperly allowed Jane Doe to
corroborate her own accusations,” by allowing her accusations “on one of the charges
relating to her to support an inference that [defendant] ‘was likely to commit and did
commit’ the remaining counts relating to her.” The Attorney General argues defendant
“mischaracterizes the instruction,” “overstates the inference it permits,” the California
20
Supreme Court has upheld CALCRIM No. 1191B, and the instruction did not violate
defendant’s right to due process.5
1. Further background information
The trial court instructed the jury with CALCRIM No. 1191B, which provides:
“The People presented evidence that the defendant committed the crimes charged in
Counts 1-8. [¶] 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. [¶] 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 beyond a reasonable
doubt.” Defendant did not object to this instruction; however, he requested that it state
“‘The People . . . must still prove the charge beyond a reasonable doubt’ . . . [¶] . . . [¶]
. . . ‘each charge.’”
5 To the extent defendant challenges CALCRIM No. 1191B as telling the jury that “it could conclude from the evidence on Count 2 that [he] also committed Count 3,” we have concluded there was insufficient evidence of force or duress to support the conviction of aggravated sexual assault (§ 269, subd. (a)) as charged in count 3. (See discussion at II.A.) Nonetheless, we consider defendant’s argument as a general challenge to CALCRIM No. 1191B.
21
2. Standard of review
“[I]nstructional error relieving the prosecution of the burden of proving beyond a
reasonable doubt each element of the charged offense violates the defendant’s rights
under both the United States and California Constitutions.” (People v. Flood (1998)
18 Cal.4th 470, 479-480.) “We review a claim of instructional error de novo. [Citation.]
‘When considering a claim of instructional error, we view the challenged instruction 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.’”
(People v. Mataele (2022) 13 Cal.5th 372, 419.)
3 Analysis
Citing People v. Stanley (1967) 67 Cal.2d 812 (Stanley) and People v. Scott (1978)
21 Cal.3d 284 (Scott), defendant contends CALCRIM No. 1191B violates California law
because it allows for the admission of the complaining victim’s testimony as to other
offenses without corroboration. In Stanley, “our Supreme Court recognized the problem
raised by the victim-witness’s testimony of uncharged crimes. The court, however,
refused to adopt a rigid rule for the admission or exclusion of such evidence. Instead, the
court said admission should be determined by ‘“a weighing of the probative value of the
evidence offered against the harm it is likely to cause.”’ [Citation.] In . . . Scott . . . our
Supreme Court reversed a conviction for child molestation and incest on other grounds.
For guidance on retrial, however, the court stated that evidence of uncharged sexual
conduct by the testimony of the victim is inadmissible. In so stating, the court cited
Stanley without discussion. [Citation.] [¶] [However, b]oth Stanley and Scott were
22
decided prior to the enactment of Evidence Code section 1108, subdivision (a).
[Citation.] Prior to the enactment of [Evidence Code] section 1108, evidence of the
defendant’s disposition to commit a sex offense was generally excluded. [Citation.]
After the enactment of [Evidence Code] section 1108, courts can no longer exclude such
evidence as prejudicial per se, but must engage in a weighing process under [Evidence
evidence is irrelevant because, after the #MeToo explosion and “the recent high profile
rash of sexual abuse reporting in the media” (including Woody Allen, the Catholic
Church, college football coach youth programs, and the Olympic women’s gymnastic
team), “the general public is now well aware that children who suffer sexual abuse may
not report that abuse for years, and may not do so consistently, or that they may choose to
stay with and be close to their abusers.” However, defendant offers no evidence to
support this assumption, and we do not accept it. (Lapenias, supra, 67 Cal.App.5th at
p. 172 [CSAAS testimony may have informed some jurors that Doe’s apparent
29
accommodation, helplessness, secrecy, and delayed disclosures were typical reactions
among children who have been sexually abused].)
Next, defendant urges us to follow decisions from other jurisdictions6 that have
found CSAAS evidence to be inadmissible. However, we are bound by McAlpin (Auto
Equity, supra, 57 Cal.2d at p. 456) and have no reason to look beyond our state borders
for guidance.
Finally, we reject defendant’s claim that CSAAS evidence was unnecessary
because there is no evidence of any juror having any misconceptions regarding child
sexual assault abuse report. No California law imposes such a condition. To the
contrary, the California Supreme Court has stated: “‘[T]he admissibility of expert opinion
is a question of degree. The jury need not be wholly ignorant of the subject matter of the
opinion in order to justify its admission; if that were the test, little expert opinion
testimony would ever be heard.’” (McAlpin, supra, 53 Cal.3d at pp. 1299-1300.) It is
enough that a juror “might hold” misconceptions “about how a child reacts to a
molestation.” (Patino, supra, 26 Cal.App.4th at pp. 1744-1745 [“It is sufficient if the
6 Commonwealth v. Dunkle (1992) 529 Pa. 168, 173-177 [602 A.2d 830] [Pennsylvania Supreme Court ruled CSAAS evidence is categorically inadmissible]; State v. Schimpf (Tenn.Crim.App. 1989) 782 S.W.2d 186, 193 [the court held child sexual abuse expert testimony was inadmissible, but the expert examined the victim and testified that the child “had, in fact, been sexually abused”]; and State v. Davis (1989) 64 Ohio App. 3d 334 [581 N.E.2d 604]. Following the Pennsylvania Supreme Court’s decision in Commonwealth v. Dunkle, supra, “the Pennsylvania Legislature passed a law ‘providing for the admissibility of this type of expert testimony.’” (People v. Munch (2020) 52 Cal.App.5th 464, 469.)
30
victim’s credibility is placed in issue due to the paradoxical behavior, including a delay in
reporting a molestation”].)
Notwithstanding the above, defendant argues the admission of CSAAS testimony
violated his due process right to present a defense. We disagree. The trial court’s
decision to allow CSAAS testimony resulted from the application of the rules of evidence
and therefore did not infringe his right to present a defense. (People v. Lawley (2002)
27 Cal.4th 102, 155 [admission of CSAAS evidence did not violate due process]; Patino,
supra, 26 Cal.App.4th at pp. 1746-1747 [same].) Borunda’s testimony was permitted
only to assist the jury in deciding whether or not Doe behaved in a manner consistent
with the conduct of someone who has been molested and in evaluating her credibility.
E. The Trial Court Properly Instructed the Jury with CALCRIM No. 1193
Defendant faults the trial court for instructing the jury with CALCRIM No. 1193,
the pattern instruction on CSAAS testimony. He contends the instruction “effectively
tells the jury that CSAAS evidence may be used to determine whether the victim’s claims
are true.” We find no error in the jury instruction.
As given to the jury, CALCRIM No. 1193 stated: “You have heard testimony
from Monica Borunda regarding child sexual abuse accommodation syndrome.
[¶] Child sexual abuse accommodation syndrome relates to a pattern of behavior that
may be present in child sexual abuse cases. Testimony as to the accommodation
syndrome is offered only to explain certain behavior of an alleged victim of child sexual
abuse. [¶] Monica Borunda’s testimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of the crimes charged against
31
him. [¶] You may consider this evidence only in deciding whether or not . . . Doe’s
conduct was consistent with the conduct of someone who has been molested, and in
evaluating the believability of her testimony.”
“We review instructional error claims under a de novo standard of review.
[Citation.] ‘The proper test for judging the adequacy of instructions is to decide whether
the trial court “fully and fairly instructed on the applicable law . . . .”’” (Lapenias, supra,
67 Cal.App.5th at p. 175.)
Defendant faults CALCRIM No. 1193 as violating Housley. The Housley court
found that because of the potential misuse of CSAAS evidence and the resulting
prejudice to the defendant, in all cases in which an expert is called to testify regarding
CSAAS, the trial court has a sua sponte duty to instruct that “(1) such evidence is
admissible solely for the purpose of showing the victim’s reactions as demonstrated by
the evidence are not inconsistent with having been molested; and (2) the expert’s
testimony is not intended and should not be used to determine whether the victim’s
molestation claim is true.” (Housely, supra, 6 Cal.App.4th at pp. 958-959.) The court
reasoned that special precautions must be taken to ensure jurors do not accord an expert’s
opinion undue weight because it is beyond their expertise. (Id. at pp. 957-958.)
According to Housely, CSAAS evidence is unusually susceptible of being misunderstood
and misapplied by a jury, “perhaps because the expert commonly is asked to offer an
opinion on whether the victim’s behavior was typical of abuse victims, an issue closely
related to the ultimate question of whether abuse actually occurred.” (Id. at p. 958.)
32
CALCRIM No. 1193 was introduced after the Housely decision and states that
CSAAS testimony is “not evidence that the defendant committed any of the crimes
charged against (him/her) [or any conduct or crime[s] with which (he/she) was not
charged,]” and jurors “may consider this evidence only in deciding whether or not . . .
conduct was consistent with the conduct of someone who has been molested, and in
evaluating the believability of the alleged victim.” (CALCRIM No. 1193.) Here, the
jury was instructed that Borunda’s testimony “is not evidence that the defendant
committed any of the crimes charged against him” and that jurors “may consider this
evidence only in deciding whether or not . . . Doe’s conduct was consistent with the
conduct of someone who has been molested, and in evaluating the believability of her
testimony.” That the instruction did not repeat Housley’s instruction verbatim is not a
sufficient basis to find error.
Post-Housley, courts have held the pattern jury instruction accurately informs the
jury on the limited use of CSAAS evidence, but the instruction does not: (a) improperly
allow an alleged minor victim of sexual abuse to corroborate her own testimony;
(b) violate due process; or (c) misapply the burden of proof. (Gonzales, supra,
16 Cal.App.5th at pp. 503-504; accord, People v. Munch, supra, 52 Cal.App.5th at
pp. 473-474.) Contrary to defendant’s contention, the instruction does instruct the jury to
not use the expert’s testimony in determining whether the victim’s molestation claim is
true. Rather, CALCRIM No. 1193 explicitly instructed the jury that “Monica Borunda’s
testimony . . . is not evidence that the defendant committed any of the crimes charged
33
against him.” We presume the jury was able to understand and correlate instructions and
followed the instructions given. (People v. Thomas (2023) 14 Cal.5th 327, 382.)
Given the trial court’s advisement that the jury was not to consider the CSAAS
testimony for any improper purpose, we conclude there is not a reasonable likelihood the
jury applied CALCRIM No. 1193 in an impermissible manner. (See People v. Rivera
(2019) 7 Cal.5th 306, 326.)
F. Instructing on Lesser Included Offense
Defendant contends the trial court committed reversible error in failing to instruct
the jury that sexual penetration of a minor (§ 289, subd. (j)) is a lesser included offense to
aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)). The Attorney
General argues there was no error because section 289, subdivision (j), fails the statutory
elements and the accusatory pleadings test. We conclude there was no error.
1. Further background information
Count 3 of the information charged defendant as follows: “For a further and
separate cause of action, being a different offense from but connected in its commission
with the charge set forth in counts 1, and 2 hereof, the District Attorney of the County of
Riverside hereby accuses KENNETH MICHAEL RODRIGUEZ KEPLEY of a violation
of Penal Code section 269, subdivision( a), subsection (5), a felony, in that on, or
between August 17, 2020 through February 2021, in the County of Riverside, State of
California, the defendant did commit a violation of Penal Code section 289, subdivision
(a), SEXUAL PENETRATION, by force, violence, duress, menace, fear and threat, upon
34
Jane Doe, a child who was under 14 years of age and seven or more years younger than
the defendant.”
The prosecutor requested the jury be given CALCRIM No. 1102, which instructed
the jury that sexual penetration with a person under the age of 18 (§ 289, subd. (h)) is a
lesser offense of count 3. With no objection from defense counsel, the trial court granted
the prosecution’s request and, in relevant part, instructed the jury as follows: “Sexual
penetration with person under 18 (Penal Code § 289(h)) is a lesser crime of . . .
Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a)) as charged in
Count 3. [¶] To prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant participated in an act of sexual penetration with another
person; [¶] 2. The penetration was accomplished by using a foreign object; AND [¶]
3. The other person was under the age of 18 years at the time of the act.” The jury was
not instructed on section 289, subdivision (j) as a lesser included offense to count 3.
2. Standard of Review
“A trial court must instruct on all lesser included offenses supported by substantial
evidence.” (People v. Duff (2014) 58 Cal.4th 527, 561.) This obligation arises
“whenever there is evidence in the record from which a reasonable jury could conclude
the defendant is guilty of the lesser, but not the greater, offense.” (Ibid.)
We review de novo whether the trial court erred by failing to instruct on a lesser
included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
35
3. Analysis
To determine whether one crime is necessarily included in another, courts “apply
either the elements test or the accusatory pleading test.” (People v. Shockley (2013)
58 Cal.4th 400, 404; see People v. Robinson (2016) 63 Cal.4th 200, 207.) “‘Under the
elements test, if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in the former.’”
(Shockley, at p. 404; see also People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Under the
elements test, one offense is another’s ‘lesser included’ counterpart if all the elements of
the lesser offense are also elements of the greater offense”].) “‘Under the accusatory
pleading test, if the facts actually alleged in the accusatory pleading include all of the
elements of the lesser offense, the latter is necessarily included in the former.’”
(Shockley, at p. 404.) “Consistent with the primary function of the accusatory pleading
test . . . we consider only the pleading for the greater offense.” (People v. Montoya
(2004) 33 Cal.4th 1031, 1036 (Montoya), fn. omitted.) “When, as here, the accusatory
pleading incorporates the statutory definition of the charged offense without referring to
the particular facts, a reviewing court must rely on the statutory elements to determine if
there is a lesser included offense.” (Robinson, at p. 207; see Shockley, at p. 404.)
Section 289, subdivision (j) provides: “Any person who participates in an act of
sexual penetration with another person who is under 14 years of age and who is more
than 10 years younger than he or she shall be punished by imprisonment in the state
prison for three, six, or eight years.” Section 269, subdivision (a)(5), with which
defendant was charged in count 3, requires only a seven-year age difference between the
36
defendant and the victim. Thus, as defendant acknowledges, section 289, subdivision (j),
is not a lesser included offense of section 269, subdivision (a)(5), under the elements test.
The accusatory pleading test yields the same result. The information alleges only
that Doe was “seven or more years younger than the defendant”; there is no allegation
that she was more than 10 years younger than defendant. Nonetheless, relying on People
v. Ortega (2015) 240 Cal.App.4th 956 (Ortega), defendant argues we should apply an
“expanded accusatory pleading test,” and look not only to the pleading document, but
also the preliminary hearing transcript to establish for purposes of the accusatory
pleading test that defendant is more than 10 years older than Doe. We decline to do so.
Several appellate courts have rejected Ortega’s reasoning as inconsistent with Montoya,
supra, 33 Cal.4th at p. 1036, and many other Supreme Court cases state “that the
accusatory pleading test looks solely to the language of the pleading itself.” (People v.
Munoz (2019) 31 Cal.App.5th 143, 158; accord People v. Alvarez (2019) 32 Cal.App.5th
781, 787; People v. Macias (2018) 26 Cal.App.5th 957, 964.) We agree that we are
bound to consider “only the pleading for the greater offense” when applying the
accusatory pleading test. (Montoya, at p. 1036; see Auto Equity, supra, 57 Cal.2d at
p. 456.)
In his reply brief, defendant points out that the original felony complaint “stated”
defendant’s birthdate, and argues that this is an alternative basis to find that the
accusatory pleading test was satisfied. Defendant’s birthday, however, is only noted in
the caption, along with his name. His birthdate is not included in the allegations of the
substantive offenses. Defendant cites no authority, and we are aware of none, indicating
37
that we may use a birthdate included in a caption of a charging document (let alone a
charging document superseded by a later-filed information) in applying the accusatory
pleading test. Under the accusatory pleading test, even enhancement allegations or
alternative sentencing schemes that are alleged with respect to an offense cannot be
considered part of an accusatory pleading for purposes of identifying lesser included
offenses. (People v. Wolcott (1983) 34 Cal.3d 92, 96; People v. Woods (2015)
241 Cal.App.4th 461, 473, 480, 482; People v. Bragg (2008) 161 Cal.App.4th 1385,
1398.) We are not persuaded that information set out only in a caption may be
considered part of an accusatory pleading for purposes of determining a lesser included
offense.
Notwithstanding the above, the Attorney General argues even assuming error, it
was harmless because the jury was instructed on the lesser included offense of sexual
penetration without force, fear, or duress (§ 289, subd. (h)) as to count 3. We agree. The
jury had an option of convicting defendant of a lesser charge if it found the sexual
penetration of Doe was without the use of force, fear, or duress.
38
III. DISPOSITION
Defendant’s conviction on count 3 is modified to commission of nonforcible
sexual penetration with another person who was under 18 years old (§ 289, subd. (h)).
The sentence on count 3 is vacated. The matter is remanded for resentencing. In all