California Court of Appeal Sep 12, 2025 No. E083694Unpublished
Filed 9/12/25 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083694
v. (Super.Ct.No. RIF2201085)
PEDRO OXLAJ LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed as modified and with directions.
Aaron J. Schechter, 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, Melissa Mandel and A.
Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Pedro Oxlaj Lopez rented rooms from a family for
numerous years in several different houses. While living with the family, he molested
Doe1 from the time she was six years old until she was 16 years. He also molested Doe2,
starting when she was six years old. Defendant was convicted of continuous sexual
abuse of a child under the age of 14, three counts of forcible lewd acts on a child under
the age of 14, and one count of committing a lewd act on a child under the age of 14.
Defendant claims on appeal (1) the trial court erred and violated his federal due
process rights by instructing the jury with CALCRIM No. 1193 regarding Child Sexual
Abuse Accommodation Syndrome (CSAAS), as it informed the jury it could consider the
CSAAS testimony in evaluating the credibility of the complaining witnesses; (2) remand
for resentencing is required in order for the trial court to properly consider a concurrent
sentence for his conviction for committing a lewd act on a child under the age of 14;
(3) he is entitled to presentence conduct credit pursuant to Penal Code section 2933.11;
(4) the abstract of judgment and minute order from sentencing must be corrected to
reflect his conviction of violating section 288, subdivision (a), to remove fines that were
not imposed at sentencing; and (5) to correct the statement regarding the calculation of
victim restitution.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was convicted of one count of continuous sexual abuse of a child under
the age of 14, Doe1 (§ 288.5; count 1); three counts of lewd and lascivious acts against a
child under the age of 14, Doe2, by force or fear (§ 288, subd. (b)(1); counts 2-4); and
one count of committing a lewd and lascivious act on a child under the age of 14, Doe2
(§ 288, subd. (a); count 5). In addition, the jury found true the special allegations that
defendant committed sexual crimes against more than one victim (§ 667.61, subd. (e)(4))
and multiple victims under the age of 14 (§ 667.61, subd. (j)(2)).
Defendant was sentenced to five consecutive 25-years-to-life terms, for a total
sentence of 125 years to life. The trial court awarded 772 days of presentence custody
credit and zero days of conduct credit. Defendant was ordered to pay $432 direct victim
restitution to Doe1 pursuant to section 1202.4, subdivision (f), and additional amounts to
be determined at a later date. Defendant was ordered to pay a restitution fine of $300
pursuant to section 1202.4, subdivision (b), but the amount was stayed based on the trial
court’s finding that defendant did not have the ability to pay fines and fees. All other
fines and fees were suspended based on his inability to pay.
3
A. FACTUAL HISTORY
1. PROSECUTION CASE-IN-CHIEF
a. Incidents Involving Doe1
Doe1 was 24 years old at the time of trial. She had two sisters, M.C. (age 9), and
Doe2, and two brothers, P.C. and G.C. Doe1 and her family had lived in Riverside at
three different houses: Montgomery Street, Noble Street and Merrill Street houses.
Doe1 was six or seven years old when her family lived in the Montgomery Street
house. Several people lived in the house including herself, her father, her mother (I.C.),
little brother, G.C., a family friend and another roommate. When the family moved to the
Noble Street house, when she was 10 or 11 years old, all she, Doe2, P.C. and G.C. shared
a room. Also in the house were her parents, a cousin and two roommates. They lived in
the Noble Street house for three or four years. Doe1’s parents did not speak English and
Doe1 oftentimes translated for them with the roommates who were living with them,
including issues regarding rent. When she was approximately 13 years old, they moved
to the Merrill Street house. She lived in that house from 2013 until 2019. She, Doe2,
PC, G.C., her parents and two roommates lived in the house.
While living in the Montgomery Street house, one of the roommates, later
identified as defendant, would grab her and say that he wanted to kiss her when they
walked past each other in the hallway of the house. One night, when she was seven years
old, she fell asleep on the couch in the living room. She felt someone kiss her, and when
she woke up, defendant was walking away from her. She asked him if he had kissed her,
4
and he said yes. She told him to never do it again, but he responded that he wanted to
kiss her again.
Doe1 recalled that defendant grabbed her and told her he wanted to kiss her over
30 times while they were living in the Montgomery Street house. She tried to get him to
stop. One time, he told her that when she was older, “I’m definitely going to fuck you.”
This made her very uncomfortable. She tried to avoid being alone with defendant. She
never told anyone in the house what defendant was doing because she did not want to
cause “chaos” in the house.
When Doe1 and her family moved to the Noble Street house, defendant moved
with them. She, Doe2, P.C., and G.C. were living in the Noble Street House, along with
her parents, a cousin, defendant and another roommate. While in the Noble Street house,
defendant would walk by her in the hallway, and when no one else was around, he would
grab her and try to kiss her. He pushed her up against the wall and held her. She had a
hard time getting away from him. He told her he wanted her in his bed. He also hugged
her tight to his body. She always told him no. He made her uncomfortable and she did
not like him. He was successful in kissing her on the cheek. These incidents occurred
four or five times each week during the several years they lived in the Noble Street
house.
Doe1 stated she was “forced” to be in a relationship with defendant by her brother,
P.C., when she was 10 or 11 years old. P.C. told her that if she did not agree to be with
defendant, defendant would move out and their mother would be stressed about how to
pay rent. Doe1 agreed so that her mother would not be stressed about money and
5
because she did not want P.C. to be upset with her. Defendant asked her one time while
they were in the hallway if she would be his girlfriend and she agreed.
Defendant would send her texts that she needed to come to his bedroom after her
parents went to sleep. When she got into defendant’s bedroom, he would lock the door.
She would have to sit on his bed. He would try to hug and kiss her. One time he told her
to get on top of him, and he moved her body against his. Doe1 could feel his penis when
he rubbed against her, which was hard, and she felt very uncomfortable. He would move
his penis back and forth against her vagina while they both had clothes on. On several
occasions, she found “white stuff” on the clothes she was wearing. Doe1 went to
defendant’s bedroom approximately 50 times while they were at the Noble Street house.
Doe1 was ashamed and disgusted by what she was doing, but felt she had no choice in
order to help her family financially.
Other times in defendant’s bedroom, defendant would try to touch her “boobs”
and vagina. He also would grab her hand and put it on his penis and she would pull her
hand away. On one occasion, he kept her hand there and moved it back and forth. He
was wearing boxers, so she touched him over his clothes. Defendant kissed her on the
mouth several times while they were in his bedroom.
At one point, Doe1 showed P.C. the “white stuff” on her shorts and told P.C. that
she thought it was wrong that defendant was having her get on top of him. P.C.
responded that she was making up that defendant was making her get on top of him. His
response made Doe1 feel defeated and she thought that no one would believe her if she
disclosed the abuse. Doe1 at one point tried to tell her mother, while they were in the
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Noble Street house, that defendant had tried to touch her in the hallway. Her mother
disregarded it, telling her it was Doe1’s fault for giving “him eyes so that is why he is
going to do that.”
At the end of eighth grade, they moved into the Merrill Street house. Defendant
moved with them. Defendant paid rent and the family’s finances were still tight. She
continued to be with defendant because she did not want him to move out, leaving the
family unable to afford their house. While in the Merrill Street house, she was forced to
go to defendant’s room at night. He would kiss her, touch her, and make her get on top
of him. He would rub his crotch against her crotch. He made her move back and forth,
and she felt like she had no choice but to obey. She did not recall having any white stuff
on her while at the Merrill Street house. One time, while on top of her, defendant kissed
her belly and tried to go lower but she closed her legs and pushed him away. Defendant
continued to touch her breasts and vagina over her clothes while they were in the Merrill
Street house.
Defendant continued to touch her while they were at the Merrill Street house until
she turned 16 years old. Doe1 tried to overdose, and when she woke up, she told her
brother she could not be with defendant anymore. She told defendant she would no
longer go to his room. Doe1 still felt that she could not tell her parents, even though the
abuse had stopped. One year after she told defendant to stop touching her, she told her
mother what had been happening. Her mother did not say much about it and Doe1 felt
that since it was over, it did not matter. When she was 19 years old, she moved out of the
Merrill Street house and moved in with her girlfriend.
7
Doe1 still had nightmares about what defendant did to her. In February 2022, she
posted about the molestation on social media. At the time, defendant was still living with
her parents. She then called law enforcement. In 2021, Doe2 disclosed to her that when
Doe2 was 14 or 15 years old, defendant had also molested her. Doe2 was ashamed and
terrified when telling Doe1. It pushed Doe1 to tell what had happened to her.
b. Incidents Involving Doe2
Doe2 was 17 years old at the time of trial and was a senior in high school. She
had lived in the Merrill Street house since she was six years old. She currently lived with
G.C., M.C., and their parents. Defendant lived with them in both the Noble and Merrill
Street houses. He had his own room in both houses and paid rent. She recalled that
sometimes defendant would take care of her and her siblings when their parents would
leave the house. He was an adult while they were living in the Noble Street house.
When Doe2 was six years old, and they were living in the Noble Street house,
defendant grabbed Doe2’s hand and forced her to put it under his pants and touch his
penis. They were in his bedroom with the door locked. He got her into his bedroom by
telling her he had a toy for her. She could not recall whether he moved her hand, but she
thought that he did. The incident lasted for about 20 minutes. When she left his room, he
told her not to tell her parents. This happened more than twice. She did not feel she
could fight against defendant because he was much taller and stronger than her.
8
Doe2 also recalled that one time in the Merrill Street house, defendant slapped her
on the “butt” and G.C. saw it happen. G.C. tried to tell their mother about defendant
touching her bottom, but she said not to tell their father because he would be mad and
kick defendant out. They needed defendant to pay rent.
Doe2 finally told Doe1 what defendant did to her in 2021. In response, Doe1 told
Doe2 that it had also happened to her. In February 2022, Doe2 finally spoke with law
enforcement. She also wrote about what happened to her in a journal in March 2022.
On March 12, 2022, Doe2 was interviewed by Jacklyn Saldana, who was a trained
forensic interviewer of children who had been sexually abused. Doe2 told Saldana that
when she put her hands down defendant’s pants, his penis felt hard and hairy. Sometimes
after these incidents, defendant would give her money. This happened more than twice
while they were in the Noble Street house. She also recalled that one time while in the
Merrill Street house, he made her sit on top of him. They both had on their clothes. She
would feel his penis in her crotch area. She indicated that he was “dry humping” her,
which she explained was that he rubbed his penis against her. She heard him moaning.
She told Saldana that defendant also made her touch his penis in his room at least
once while they were living at the Merrill Street house. He moved her hand against his
penis. Defendant also tried to touch her vagina over her clothes one time while they were
in his bedroom, but she closed her legs so he could not touch her. She believed she was
seven years old at that time. During one of the incidents, defendant asked her whether
Doe1 had a boyfriend.
9
c. Investigation
Riverside Police Sergeant Reid was assigned to the sexual assault and child abuse
unit. He spoke with Doe1 on several occasions and she was very emotional. He also
spoke with Doe2, who was also very emotional and had a hard time talking about what
had happened to her. Based on defendant’s driver’s license, he was 13 years older than
Doe1 and 20 years older than Doe2.
Riverside Police Officer Olivares spoke with Doe1 on February 22, 2022. Doe1
was nervous and would sometimes freeze when giving her statements. She was sitting in
a fetal position, withdrawn within herself during the interview. Officer Olivares spoke
with I.C., who had no reaction to being told that they were there to investigate
accusations by Doe1 against defendant.
Riverside Police Officer Murphy went to the Merrill Street house on February 22,
2022. He spoke with Doe2, who was 15 years old at the time. Doe2 was upset while
speaking with Officer Murphy. She seemed sad and did not want to talk about what had
happened to her.
Heidi Pietron started dating Doe1 in 2018 and ended their relationship in 2022.
They lived together starting in 2019. Doe1 told her about defendant after they had been
dating for about one year. Doe1 was afraid to talk about it because no one had ever
believed her. She was emotional and crying when talking about it. Doe1 told Heidi that
defendant lived with her family. He started touching her when she was seven years old,
and made her be in a relationship with him when she was 13 years old. Doe1’s brother
had told her that if she did not agree to be in a relationship with defendant, the family
10
would not be able to afford rent for the house. Doe1 told Heidi that defendant touched
her butt, her breasts and would kiss her. When Doe1 and Heidi went to her parents’
house, Doe1 would avoid being in the same room with defendant. Heidi encouraged
Doe1 to call the police and report what had happened to her. Doe1 posted about it on
social media and then contacted law enforcement.
P.C. was granted immunity to testify. He was 28 years old at the time of trial. He
moved out of the Merrill Street house when he was 22 years old; he lived there from
2013 until 2018. He lived in the Noble Street house for two years. He was friends with
defendant, who lived with them in both houses. He noted that his family struggled
financially and had to rent out rooms to survive. In the Noble Street house, all the
siblings shared a room and it had a window.
When Doe1 was about 10 years old, she told P.C., who was 14 years old at the
time, that defendant made her be his girlfriend and she did not want to be his girlfriend.
Defendant told P.C. that if Doe1 ended things with him, he would move out and their
parents would not be able to afford their house. P.C. told Doe1 he would help her keep it
from their parents. He helped her by making sure that her parents were asleep when she
went to defendant’s room. He recalled one night in the Noble Street house that Doe1
went to defendant’s bedroom. Doe1 told P.C. that she did not want to go to his bedroom
and she looked sad. P.C. told her not to go. She said she had to go, or defendant would
be upset and leave. She was concerned her parents would not be able to pay for the
house if he left. P.C. agreed with her. Doe1 returned 20 minutes later and appeared sad.
She told him that defendant had her touch his private part with her hand.
11
P.C. indicated that defendant sent him messages almost every day while they were
in the Noble Street house to tell Doe1 to come to see him in his bedroom. P.C. would
just respond, “Okay.” P.C. would tell Doe1 about the messages. If P.C. did not tell
Doe1, defendant would call him or come to their bedroom window. After being with
defendant, Doe1 would sometimes tell P.C. that defendant had tried to kiss her and put
her hand on his private parts.
P.C. did not recall anything from the Merrill Street house except that defendant
continued to send him messages to have Doe1 go to his bedroom. Defendant told P.C.
that he was in love with Doe1 starting when she was 10 years old. When P.C. was 15
years old, defendant told him that some day he would get to have a sexual relationship
with Doe1, and P.C. responded that she was too young. Defendant responded, “one of
these days.”
When Doe1 was 16 years old, she told P.C. she was no longer going to be with
defendant. She seemed happy. Defendant told P.C. that he should encourage Doe1 to get
back with him and threatened to leave the house. P.C. had lied to investigators prior to
the trial, claiming he knew nothing about what was happening to Doe1. He was scared
he was going to get in trouble because he knew what happened to Doe1 and did not tell
anyone. He was being truthful at trial.
12
G.C. was 19 years old at the time of trial. He still lived with his parents at the
Merrill Street house. He recalled living in the Noble Street house with Doe2 and Doe1.
Defendant also lived in the house. G.C. shared a room at the Noble Street house with his
siblings. He indicated that his family had to rent out rooms for financial reasons. He
recalled that both his parents worked while they lived in the Noble Street house and
defendant would sometimes “watch” the kids while their parents were at work. He
recalled being in his bedroom one night in the Noble Street house and defendant came to
the window.2
G.C. was 10 years old when they moved into the Merrill Street house. Defendant
moved with them and had his own room. G.C. shared a room with Doe2 and Doe1. He
witnessed defendant grab Doe2’s “behind” with his hands. G.C. described it as “groping
her.” He saw Doe2 “flinch” when defendant grabbed her. G.C. and Doe2 told their
mother, but she did not believe them and told them not to tell their father.
d. CSAAS Testimony
Dr. Jody Ward was a clinical and forensic psychologist specializing in the sexual
abuse of children. She had testified in court over 400 times as an expert on how children
respond to sexual abuse. She did not know the details of the instant case. She explained
that CSAAS was a pattern of behaviors that many children exhibit who have been
sexually abused in an ongoing relationship.
2 P.C. confirmed that defendant was at the window, but lied to G.C. that no one was there; P.C. did not want G.C. to find out about what defendant was doing to Doe1 and tell their parents.
13
Children who were abused in an ongoing relationship responded differently from
other sexual abuse victims. A person who has been molested by a stranger usually
immediately reported the abuse and were believed by others. Many times, those who are
abused in an ongoing relationship do not report the abuse out of love and loyalty toward
the abuser. Further, when they report the abuse, many times they are not believed.
Dr. Ward explained that CSAAS had five components, including secrecy,
helplessness, entrapment and accommodation, delayed unconvincing disclosure, and
retraction or recantation. Secrecy included that the sexual abuse took place while other
persons were not present and also that the children kept the secret of sexual abuse for
very long periods of time. Many children kept the secret because it was embarrassing, or
they were concerned it would disrupt their family life. Helplessness referred to the power
imbalance between adults and children, and that a child was dependent on adults. A child
who was living with the abuser would feel even more helplessness. This helped explain
why children tended to report abuse later in life when they were not dependent upon
living with their abuser.
Entrapment and accommodation were based on children not immediately reporting
the abuse, which tended to lead to more abuse. The child may become entrapped in the
situation and learn to accommodate the abuse. Although a person on the outside may
think they would immediately report the abuse or try to get out of the situation, this was
not how a child who was helpless would necessarily react. The child wanted to keep her
family together and was willing to suffer the sexual abuse to keep her family together.
14
As for delayed or unconvincing disclosure, a majority of children wait until they
are adults to disclose the abuse. When a person finally makes a disclosure, they do not
always report all of the details at one time. If the child feels like they are being believed,
he or she will be more comfortable to disclose more details. A child also may tell their
peers about the abuse to relieve themselves of the burden of it, but does not want it
disclosed to law enforcement. Dr. Ward admitted there was no litmus test or diagnostic
tool that could be used to be sure if a child was being truthful about the sexual abuse.
2. DEFENSE
At the time of trial, I.C. still lived in the Merrill Street house. She insisted that
prior to law enforcement coming to the Merrill Street house on February 2, 2022, she had
no knowledge of defendant abusing Doe1. She admitted that about one month prior to
the police coming to the Merrill Street house, Doe2 and G.C. had told her that defendant
had touched Doe2’s buttocks. She did not believe them. She told them not to tell their
father. She asked defendant and he said it was a lie. I.C. admitted that they needed
defendant’s rent to pay their bills and for the house.
DISCUSSION
A. CALCRIM NO. 1193
Defendant contends the trial court erred and violated his federal constitutional due
process rights and right to a fair trial by instructing the jury with CALCRIM No. 1193.
The jury should not have been instructed that the CSAAS testimony could be used to
evaluate the veracity of the witnesses.
15
1. ADDITIONAL FACTUAL HISTORY
The parties discussed the jury instructions off the record with the trial court. On
the record, defendant had no objections to the instructions, including the giving of
CALCRIM No. 1193. The jury was instructed with CALCRIM No. 1193 as follows:
“You have heard testimony from Dr. Jodi Ward regarding [CSAAS]. Dr. Jodi Ward’s
testimony about [CSAAS] is not evidence that the defendant committed any of the crimes
against him. [CSAAS] research is based upon an approach that is completely different
from that which you must take in this case. . . . The syndrome research begins with the
assumption that a molestation has occurred and seeks to describe and explain common
reactions of children to that experience. As distinguished from that research approach,
you are to presume the defendant innocent. The People have the burden of proving guilt
beyond a reasonable doubt. You may consider this evidence only in deciding whether
[Doe1] and/or [Doe2]s conduct was not inconsistent with the conduct of someone who
has been molested, and in evaluating the believability of her testimony.”
2. FORFEITURE
Defendant did not object to the standard CALCRIM No. 1193 instruction in the
trial court. The People insist that by failing to object, he forfeited the claim on appeal.
Defendant contends this court should nonetheless consider his claim since it involves a
pure question of law and his substantial rights were violated. “Generally speaking, a
‘failure to object does not waive an instructional error on appeal if the instruction was an
incorrect statement of law or the defendant’s substantial rights were affected.’ ” (People
v. Grandberry (2019) 35 Cal.App.5th 599, 604.) However, several other courts have
16
reviewed instructional error claims when there was a claim of a violation of substantial
rights or that the instruction was an incorrect statement of the law despite the failure to
object in the trial court. (See People v. Gomez (2018) 6 Cal.5th 243, 312; People v. Ortiz
(2023) 96 Cal.App.5th 768, 815, fn. 23 (Ortiz); Grandberry, at p. 604.) We will review
defendant’s claim to determine if his substantial rights were affected by the instruction or
if it was an incorrect statement of law.
“ ‘We review a claim of instructional error de novo. [Citation.] The challenged
instruction is considered “in the context of the instructions as a whole and the trial record
to determine whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.” ’ ” (Ortiz, supra, 96 Cal.App.5th at pp. 815-816.)
Numerous courts have rejected defendant’s same argument that CALCRIM No.
1193 improperly informs the jury that they can consider CSAAS testimony in appraising
the credibility of the victim and that it dilutes the People’s burden of proof. (See People
v. Lapenias (2021) 67 Cal.App.5th 162, 175-176 [“CSAAS evidence ‘is not admissible to
prove that the complaining witness has in fact been sexually abused; it is admissible to
rehabilitate such witness’s credibility when the defendant suggests that the child’s
conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her
testimony claiming molestation’ ”]; People v. Gonzales (2017) 16 Cal.App.5th 494, 503-
504; People v. Munch (2020) 52 Cal.App.5th 464, 473-474.) Defendant insists these
cases were wrongly decided.
17
In Ortiz, supra, 96 Cal.App.5th 768, the defendant contended, as defendant does
here, that “the trial court erred when it instructed with CALCRIM 1193 because the
instruction allowed the jurors to use the CSAAS evidence to evaluate the complaining
witnesses’ credibility in a manner that exceeds the permissible usage, thereby lessening
the prosecution’s burden of proving his guilt beyond a reasonable doubt and violating his
due process rights.” (Id. at p. 815.) The appellate court found that there was not “a
reasonable likelihood the jurors here applied the instruction in an impermissible manner.”
It focused on the fact that the instruction advised the jurors that the CSAAS testimony
“could not be considered as evidence that” the defendant “committed any of the crimes
charged against him or any conduct or crimes with which he was not charged. Thus, the
instruction explicitly precluded the use of that testimony to conclude inferentially from
the victims’ conduct” and the CSAAS testimony that the defendant “committed the
charged or uncharged crimes.” (Id. at p. 816.) In addition, it found that the last sentence
of the instruction—you may consider this evidence only in deciding whether the victim’s
conduct was not inconsistent with the conduct of someone who has been molested, and in
evaluating the believability of her testimony—did not compel a conclusion that the
victim’s conduct was consistent with being a sexual abuse victim. (Id. at p. 816.) The
court concluded that the trial court properly instructed the jury with CALCRIM No. 1193
and that the defendant’s constitutional rights were not violated by the instruction. (Ibid.)
18
We see no reason to depart from these cases. The jury was specifically instructed
that it could not consider the CSAAS testimony as proof that defendant sexually abused
Doe1 and Doe2. Further, Dr. Ward testified that a child’s behavior after disclosing the
abuse should not be used to determine whether or not sexual abuse has occurred because
children respond in many different ways. Dr. Ward also stated that there was no litmus
test or diagnostic tool that could be used to be sure one way or another if a child was
being truthful about the sexual abuse. Based on the language of the instruction and the
testimony of Dr. Ward, the trial court properly instructed the jury with CALCRIM No.
1193 and defendant’s constitutional rights were not violated by the instruction.
Defendant relies on People v. Housley (1992) 6 Cal.App.4th 947 and People v.
Bowker (1988) 203 Cal.App.3d 385, to support his claim that the jury was improperly
instructed with CALCRIM No. 1193. These cases were decided prior to the drafting of
CALCRIM No. 1193 in 2006. They addressed whether some type of limiting instruction
should be given when CSAAS testimony is admitted at trial to clarify that the CSAAS
testimony should not be used to determine whether the victim’s molestation claim is true,
but did not evaluate whether CALCRIM No. 1193 is a proper instruction. (Housley, at
pp. 956-959; Bowker, at p. 394.) Gonzalez, Ortiz and the other cases specifically
considered the language of CALCRIM No. 1193 and we follow their conclusions in this
case.
The trial court properly instructed the jury with CALCRIM No. 1193. It did not
lessen the burden of proof or improperly inform the jury. We reject defendant’s claim of
instructional error.
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B. RESENTENCING ON COUNT 5
Defendant contends the trial court did not “appreciate its discretion” to impose a
concurrent term on count 5. He insists that neither section 667.6 nor 667.61 mandate a
consecutive sentence for a violation of section 288, subdivision (a), and that remand is
necessary for the trial court to consider a concurrent sentence on count 5. The People
respond that the trial court was aware of its discretion to impose a concurrent sentence on
count 5, and stated on the record the factors in favor and against a consecutive sentence
on count 5. Moreover, any conceivable error was harmless.
1. ADDITIONAL FACTUAL HISTORY
In the People’s sentencing brief, the People argued that defendant warranted a
sentence of five consecutive 25-year-to-life terms for a total of 125 years to life. The
People noted that pursuant to section 667.61, subdivisions (b), (d), and subdivision (j)(2),
except as provided in subdivision (j), defendant should receive a 25 years to life in prison
consecutive sentence for qualifying offenses upon a victim under the age of 14. In his
sentencing brief, defendant requested that the fines and fees be stayed since he did not
have the ability to pay, but did not discuss imposing a concurrent term on count 5.
In the probation report, the probation department improperly listed count 5 as a
violation of section 288, subdivision (b)(1). It also provided, “Pursuant to Penal Code
Section 667.61(j)(2), any person who is convicted of Penal Code section 288(b) against a
child under 14 years by force, and the offense is committed against more than one victim,
shall be punished by 25 years to life in state prison for each count, for a total of 100 years
to life.”
20
At sentencing, the trial court noted that it had reviewed sections 667.61,
subdivision (c)(9) (continuous sexual abuse of a child under section 288.5) and 667.61,
subdivision (j)(2) (for victims under the age of 14 a 25-years-to-life sentence is proper),
and that because there were multiple victims under the age of 14, the appropriate
sentence on count 1 was 25 years to life. Defendant submitted on the statement. The
trial court stated that defendant’s actions and conduct required it give the maximum
sentence. The trial court noted that it was aware of only two mitigating factors, which
were that defendant had no prior record and was under the age of 26 when the crimes
occurred. This was weighed against the aggravating factors of vulnerability of the
victims, and planning and sophistication. “All of those weigh heavily against any type of
leniency or lesser sentence than what’s called for by the Penal Code.” The trial court
found that none of the counts were subject to section 654; all acts occurred at different
times and involved different victims.
The trial court then pronounced the sentence of 25 years to life on all five counts
and they were ordered to run consecutive to each other.
2. ANALYSIS
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citation.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held
that the appropriate remedy is to remand for resentencing unless the record ‘clearly
21
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.)
Section 667.61 is known as the “One Strike” law. (People v. Mancebo (2002) 27
Cal.4th 735, 738.) Section 667.61, subdivision (a) provides “[A] person who is convicted
of an offense specified in subdivision (c) under one or more of the circumstances
specified in subdivision (d) or under two or more of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.”
Section 667.61, subdivision (c)(4) lists section 288, subdivision (a), as a qualifying crime.
Section 667.61, subdivision (j)(2) provides, “A person who is convicted of an offense
specified in subdivision (c) under one of the circumstances specified in subdivision (e),
upon a victim who is a child under 14 years of age, shall be punished by imprisonment in
the state prison for 25 years to life.” Section 667.61, subdivision (e)(4) provides “the
defendant has been convicted in the present case or cases of committing an offense
specified in subdivision (c) against more than one victim.” As such, defendant was
subject to a 25-years-to-life sentence on count 5 based on committing qualifying offenses
against multiple victims under the age of 14.
Section 667.6, subdivision (d)(1) provides, “A full, separate, and consecutive term
shall be imposed for each violation of an offense specified in subdivision (e) if the crimes
involve separate victims or involve the same victim on separate occasions.” Section 288,
subdivision (a), is not listed in section 667.6, subdivision (e). As such, the trial court did
have the discretion to impose a concurrent sentence of 25 years to life on count 5.
22
Here, we need not address whether the trial court was aware of its discretion to
impose a concurrent sentence on count 5. Even if the trial court was unaware of its
discretion, the record “clearly indicate[s]” that the trial court would have reached the
same conclusion. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) The trial court
stated that defendant’s actions and conduct required a maximum sentence. The trial court
stated that defendant had manipulated Doe1 and Doe2 over several years, and also
manipulated P.C. The trial court, after considering both the mitigating and aggravating
factors, found that they weighed heavily against leniency or a lesser sentence. The record
clearly indicates the trial court would not have imposed a concurrent sentence on count 5.
C. CONDUCT CREDITS
Defendant insists he is entitled to conduct credits pursuant to section 2933.1.
Defendant contends that section 667.61 does not render him ineligible for conduct
credits. He is entitled to 115 days of conduct credits, and this court can modify the
judgment to reflect presentence custody credits of 887 total days, including 772 days of
actual credit and 115 days of conduct credit. The People insist that section 667.61 does
not allow for conduct credit for One Strike cases.
The probation report provided that defendant was only entitled to 772 days of
credit for local time, and was not entitled to any conduct credits. At the time of
sentencing, the trial court noted that he had “772 days of actual time—you don’t qualify
for any good time credit—for a total of 772 days of credit.” There was no objection by
defense counsel.
23
In People v. Adams (2018) 28 Cal.App.5th 170, the court found that section
667.61 does not allow for conduct credits pursuant to sections 2933.1 or 4019. It held,
“Section 667.61 was amended in 2006 . . . to eliminate the existing section 667.61,
subdivision (j) and any reference to presentence conduct credits. [Citation.] It is
uncertain on its face whether the amendment was intended to eliminate presentence
conduct credit for defendants sentenced under section 667.61, or to authorize full conduct
credit under section 4019. We turn, therefore, to the legislative history. Committee
reports evidence the Legislature’s intent to eliminate conduct credit for defendants
sentenced under section 667.61, the so-called ‘One-Strike Law.’ The Senate Committee
on Public Safety’s analysis of Senate Bill No. 1128 (2005-2006 Reg. Sess.)
unambiguously states: ‘Elimination of Sentencing Credits for One-Strike Inmates [¶]
Existing law provides that a defendant sentenced to a term of imprisonment of either 15
years to life or 25 years to life under the provisions of the “one-strike” sentencing scheme
shall not have his or her sentence reduced by more than 15% by good-time/work-time
credits. [Citation.] [¶] This bill eliminates conduct/work credits for inmates sentenced
under the one-strike law.’ [Citations.] Now there are no conduct credits allowed against
the minimum term.” ’ ” (Id. at p. 182.) Several courts have followed the reasoning in
Adams. (See People v. Govan (2023) 91 Cal.App.5th 1015, 1036-1037 [“[W]e agree
with our colleagues in . . . Adams that one strike offenders sentenced to indeterminate
terms under section 667.61 are not entitled to any presentence conduct credit”]; People v.
Dearborne (2019) 34 Cal.App.5th 250, 267-268.) We also agree with the findings in
Adams.
24
Defendant argues that section 667.61 does not mention conduct credits. However,
the court in Adams, supra, properly determined that such elimination of conduct credits
by the Legislature from section 667.61 evidenced that no conduct credits should be
awarded to a person sentenced to an indeterminate term pursuant to section 667.61. The
trial court properly denied conduct credits to defendant.
D. ABSTRACT OF JUDGMENT
Defendant contends the abstract of judgment and minute order must be corrected
because they improperly state that the conviction in count 5 was a violation of section
288, subdivision (b)(1), but he was convicted pursuant to section 288, subdivision (a). In
addition, defendant contends that the abstract of judgment should be modified to strike
the $300 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), the $200
court operations assessment pursuant to Penal Code section 1465.8, and the $150
criminal conviction assessment pursuant to Government Code section 70373, as they
were not imposed during the trial court’s oral pronouncement of sentence. The trial court
stayed and suspended all fines and fees. Finally, the abstract of judgment in section 12
should be corrected to strike the language regarding victim restitution as follows: “and
addtl amounts determined by Probation” (boldface omitted) as it improperly delegates the
calculation of any additional victim restitution to the probation department.
The People agree that the abstract of judgment and minute order should be
corrected to reflect the proper conviction on count 5. As for the fines and fees, the
People insist that they should be reflected on the abstract of judgment as stayed. The
People do not provide a response as to the striking of the language in section 12.
25
“Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.) The appellate court had authority to
correct such clerical errors. (Ibid; see also People v. Rowland (1988) 206 Cal.App.3d
119, 123.)
The abstract of judgment states that defendant was convicted of a violation of
section 288, subdivision (b)(1), on count 5, when in fact he was convicted of a violation
of section 288, subdivision (a). We will order that the minute order from sentencing and
the abstract of judgment be corrected to reflect that defendant was convicted of a
violation of section 288, subdivision (a) in count 5.
Defendant insists that the minute order reflects that the fines and fees were stayed,
and there was no need to include them on the abstract of judgment because they were not
financial obligations. “All fines and fees must be set forth in the abstract of judgment.”
(People v. High (2004) 119 Cal.App.4th 1192, 1200.) “If the abstract does not specify
the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to
collect and forward deductions from prisoner wages to the appropriate agency.” (Ibid.)
At sentencing, the trial court ordered, “I’ll reduce the restitution fine to $300 and
stay it. Parole revocation fine will also be $300. That will be suspended unless parole is
revoked. I will stay and suspend all other fines and fees pursuant to an inability to pay.”3
3 We note the People do not make any argument that the trial court did not have the authority to stay the section 1202.4, subdivision (b), restitution fine and we will not address the issue.
26
The trial court never imposed an amount on the court security fee or the criminal
conviction assessment. “The clerk cannot supplement the judgment the court actually
pronounced by adding a provision to the minute order and the abstract of judgment.”
(People v. Zackery, supra, 147 Cal.App.4th at pp. 387-388.) Those amounts should be
stricken from the abstract of judgment. The abstract of judgment should reflect that the
$300 restitution fine was ordered in section 9, but also should reflect that it was stayed by
the trial court under section 12. Defendant has provided no authority to support that a
restitution fine imposed pursuant to section 1202.4, subdivision (b), but stayed, should
not be reflected on the abstract of judgment and we have found none. We will order the
correction to the abstract of judgment.
At the time of sentencing, the trial court inquired if the People were asking for
victim restitution to be decided at a later date. The prosecutor responded that for Doe1,
they were requesting $432, and the “rest to be determined in case other restitution costs
arise.” The trial court ruled, “The Court will order victim restitution in the amount of
$432 to [Doe1]. Any other further victim restitution is to be determined by probation.”
The trial court also found that defendant was entitled to a hearing to contest any amount.
On the abstract of judgment, under “Other Orders” in section 12, it states, “As to [Doe1]:
[¶] Pay $432 for Victim restitution [victim] and addtl amounts determined by Probation
(1202.4(f)(PC).” Under “Restitution Orders” it is reflected that any disputes as to amount
to be resolved at a court hearing.
The People do not dispute that the language “addtl amounts determined by
Probation (1202.4(f)(PC)” should be stricken from the abstract of judgment. As such, we
27
will order that the language be stricken from the abstract of judgment. However, the trial
court did order that additional restitution to the victim may be awarded. The abstract of
judgment should properly reflect such order under “ADDITIONAL VICTIM
RESTITUTION ORDERS.” It should be corrected to check the box and state as follows,
“Pay $432 for restitution [victim] and additional amounts to be determine by Probation
(1202.4(f) PC; Division of Adult Institutions to collect obligation (2085.5); . . .” In
addition, the box should be checked that states, “Any disputes as to amounts to be
resolved in court hearing. Enhanced Collection Division to forward findings to Division
of Adult Institutions.” We shall so order the corrections to the abstract of judgment.
DISPOSITION
The trial court shall modify the abstract of judgment to reflect that defendant was
convicted of a violation of Penal Code section 288, subdivision (a), in count 5. In
addition, the trial court shall strike the fees reflected on the abstract of judgment pursuant
to Penal Code section 1465.8 and the Government Code section 70373 fee. In addition,
the abstract of judgment shall be amended by adding that the Penal Code section 1202.4,
subdivision (b) restitution fine in the amount of $300 was stayed in section 12 “Other
orders.” It shall also strike the following language from the abstract of judgment in
section 12: “and addtl amounts determined by Probation.” The abstract of judgment
should also be corrected under “ADDITIONAL VICTIM RESTITUTION ORDERS” to
check the box and state as follows, “Pay $432 restitution [victim] and additional amounts
to be determined by Probation (1202.4(f) PC; Division of Adult Institutions to collect
obligation (2085.5 PC).” In addition, the box should be checked that states, “Any
28
disputes as to amounts to be resolved in court hearing. Enhanced Collection Division to
forward findings to Division of Adult Institutions.” The trial court shall send a certified
copy of the amended abstract of judgment to the California Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.