P. v. Barkley

Filed 1/12/10 P. v. Barkley CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER BARKLEY,
Defendant and Appellant.
H032690
(Santa Clara County
Super. Ct. Nos. CC757145, CC644740)
A jury convicted defendant Christopher Barkley of oral copulation with a minor
under 16 (count 1), lewd or lascivious acts on a child 14 or 15 (count 2), and five counts
of furnishing a controlled substance to a minor by an adult (counts 5-10). It also found
true allegations that the minors were four years younger than defendant for purposes of
one-, two-, or three-year sentence enhancements. The trial court then found that a prior
prison-term conviction suffered and admitted by defendant constituted a strike for
purposes of the Three Strikes law over defendant‟s objection that the prior did not
amount to a strike because it was a misdemeanor. The trial court sentenced defendant to
30 years and four months consisting of a 12-year midterm (six years doubled under Three
Strikes law) for count 5 plus a two-year enhancement, 16 months consecutive (one-third
midterm doubled) for count 1, four years consecutive (one-third midterm doubled) each
for counts 6, 7, and 9 plus eight-month enhancements for each, and a one-year term for
the prior-prison-term finding. It imposed concurrent terms for counts 2 (four-year
midterm), 8 (12-year midterm), and 10 (12-year midterm).

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On appeal, defendant (1) asks that we review the sex-offense victim‟s confidential
records that the juvenile and trial court declined to disclose in order to determine whether
they were material and should have been disclosed, (2) contends that the trial court
abused its discretion by excluding evidence that the sex-offense victim had once falsely
accused another of sexual assault, (3) argues that the trial court erred by admitting
evidence and instructing the jury (CALCRIM No. 1193) about Child Sexual Abuse
Accommodation Syndrome (CSAAS), (4) urges that he suffered improper multiple
convictions (counts 6, 7, & 10) and improper multiple punishments (counts 1, 2, 6, 7 &
10) (Pen. Code, § 654), (5) claims that insufficient evidence supports that he had suffered
a strike, and (6) complains that the trial court imposed an unauthorized restitution fine.1
We modify and affirm the judgment.2
BACKGROUND
The 14-year-old victim was a runaway. She lived with her 17-year-old boyfriend,
J. Z., in an apartment on Almaden Avenue. Defendant lived in a neighboring apartment.
1 Defendant adds that he received ineffective assistance of counsel in the event we
determine that the first three claims of error have been forfeited by a failure to object.
And he argues that the cumulative prejudice from the first three claims of error justifies
reversal in the event that no single error is prejudicial. Since we are addressing the
claims on the merits and finding no error, we need not further mention these points.
2 The trial court pronounced judgment in three cases against defendant: No.
CC644740, No. CC757145, and No. CC509015. Defendant states in his brief that this is
an appeal from the judgments in cases No. CC644740 and No. CC757145. But he raises
issues from case No. CC644740 only. As to the two other cases, he (1) asks that we
strike the same strike finding in case No. CC757145 that the trial court made in case No.
CC644740, and (2) notes that his restitution-fine point is related to all three cases. We
observe that defendant‟s notice of appeal references case No. CC757145 only. And it
describes that the appeal is from a judgment based on a sentence or matters occurring
after a plea. This description is consistent with case No. CC757145--a case in which
defendant pleaded guilty. Ordinarily, this specific description would control what issues
are on appeal. But since the notice of appeal references the single judgment date and
there is but one abstract of judgment, we will treat the appeal as applying to all three
cases.

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After an argument with J. Z., the victim went to defendant‟s apartment to obtain drugs.
At some point, defendant produced methamphetamine and the two smoked the drug.
(Count 5.) The two got high and defendant orally copulated the victim. (Count 1.) They
then engaged in sexual intercourse. (Count 2.) Afterward, defendant gave the victim
money and methamphetamine. (Count 6.) He said that he would hurt her if she told
anybody. (Count 4.)3 On another occasion, the victim and J. Z. visited defendant at his
new apartment on Duane Street and J. Z. gave defendant $20 in exchange for
methamphetamine. (Count 9.) On another occasion, the two went to the Duane Street
apartment, defendant produced methamphetamine, defendant sent J. Z. to Home Depot,
defendant and the victim smoked the methamphetamine (count 7) and engaged in sexual
intercourse (count 3).4 When J. Z. returned, defendant gave methamphetamine to the
victim (count 8) and J. Z. (count 10) who smoked it in the apartment before leaving.
Five or six months after the sex-offense incidents, the victim underwent
counseling and revealed the incidents to the therapist who reported them to the police.
At trial, defendant‟s tactic was to impeach the victim with inconsistencies and her
delayed reporting of the sex abuse. To this end, defendant had moved the juvenile court
to disclose the victim‟s confidential file and had received some, but not all, of the file.
And he had moved the trial court to review in camera the therapist‟s records and had
received one of four pages. Over defendant‟s objections made during in limine
proceedings and after the victim testified, Carl Lewis testified as an expert witness
concerning CSAAS. According to Lewis, CSAAS is essentially a set of ideas deriving
from a study to determine how victims responded to and reported child abuse; its purpose
is to counsel the adult community against having preconceived notions about how a child
3 The jury acquitted defendant of dissuading a witness by force.
4 The jury failed to reach a verdict on a second count (count 3) of lewd or
lascivious acts on a child 14 or 15, and the trial court later dismissed the charge.

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would react; for example, it is common for a child to delay reporting child abuse.
Defendant then introduced his own expert to rebut Lewis‟s testimony.
VICTIM‟S CONFIDENTIAL RECORDS
Defendant asks that we review the victim‟s juvenile court file and therapist‟s
records, which were not disclosed, to determine whether they were material and should
have been disclosed. (People v. Martinez (2009) 47 Cal.4th 399, 453.) The files and
records were transmitted to us under seal. Defendant directs us to an envelope
designating sealed pages 15 through 70 from the juvenile court.5 And the therapist‟s
records are in a sealed envelope together with a settled statement from the trial court.
“We have reviewed the entire confidential juvenile court and superior court files,
and have concluded that the undisclosed information was not material to the defense. In
addition, having reviewed the confidential file[s], we conclude the contents do not
support any claim that further disclosure is required to protect defendant‟s right to a fair
appeal.” (People v. Martinez, supra, 47 Cal.4th at p. 454, fn. omitted.)
EVIDENCE THAT THE VICTIM HAD ONCE FALSELY
ACCUSED ANOTHER OF SEXUAL ASSAULT
During in limine proceedings, defendant sought an admissibility ruling as to
evidence that the victim had made false “allegations against an individual saying that
someone else was molested by him.” He referred to the police report wherein the victim
had stated that her friend B.‟s father had molested the victim and also that B. knew that
the father had molested their mutual friend, C. He proffered that C. would testify and
deny that the father had molested her. According to defendant, such evidence would
have a “direct bearing on [the victim‟s] credibility as a witness.” When the trial court
asked defendant how C.‟s statement would impeach the victim, defendant gave an
5 There is a second envelope of juvenile court files designating sealed pages 5
through 36. The content shows that this envelope contains what the juvenile court
disclosed to defendant.

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unsatisfactory answer prompting the trial court to clarify: “But the statement you have
from the alleged victim . . . in this case is that [the victim] said [B.] knew that [the father]
had done this to someone else.” When defendant answered affirmatively, the trial court
offered: “So we don‟t have a statement in the police report or that you have possession
of that [the victim] spoke directly to [C.], so I don‟t even think there is an impeachment
value, although maybe you‟re bridging gaps that don‟t lend themselves to be bridged.”
Defendant explained: “Well, my position is more--that frankly, it doesn‟t even go to the
truth in and of itself, but rather her willingness to tell the police that someone was
molested and that person adamantly denies it, so that‟s the reason.” The trial court
concluded as follows: “I understand, but this is really not impeachment because that
doesn‟t impeach the alleged victim in any way. [The victim] is just telling the police,
hey, you ought to know that I‟ve heard that something else is going on out there with [the
father]. But there are no statements by [the victim] that can be impeached from any other
statements in the police report from [C.]. [¶] So for that reason, I am not going to allow
her to testify under Evidence Code section 350 or 352.[6] And the court believes there is
no probative value and that obviously the chance of confusion to the jury would be high,
because it took me awhile just to sort through it myself. [¶] And also there is no
possibility of this being cleaned up by redaction to the point it makes sense to the jury.
And even if we could do that the jury is going to know that it has something to do with
sexual molestation or guess that, because why else would they ask [the victim] what [the
father] did. [¶] So for all of those reasons I am not going to allow [C.] to testify.
However, if you find out later there is a statement which the victim . . . made which is
impeachable by [C.] or anybody else I will be happy to review it.” Defendant then urged
that the evidence was admissible under section 782 but the trial court ruled: “Just so
we‟re clear. Under [section] 782 subsection 2 you haven‟t met your burden. Secondly,
6 Further unspecified statutory references are to the Evidence Code.

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even if you had and even if the court allowed it to be cleaned up there is just no
impeachment value of this statement of [C.], it‟s just not there.”
Defendant contends that the trial court abused its discretion by denying his motion
and that the exclusion of the evidence “violated due process.” According to defendant,
the evidence was admissible under section 782. But it is crystal clear that the trial court
excluded the evidence under section 352 and only when defendant belatedly raised
section 782 did the trial court make a fallback ruling. Thus, whether the evidence was
admissible under section 782 is immaterial so long as the trial court correctly applied
section 352. Defendant argues that the trial court erred under section 352 because the
proffered evidence was relevant to the victim‟s credibility and would not “consume a
significant portion of time or confuse or mislead the jury.” Defendant‟s analysis is
erroneous.
Section 1103 provides, in relevant part, as follows: “(a) In a criminal action,
evidence of the character or a trait of character (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct) of the victim of the crime for
which the defendant is being prosecuted is not made inadmissible by Section 1101 if the
evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in
conformity with the character or trait of character.”
Section 780, subdivision (e), provides: “Except as otherwise provided by statute,
the court or jury may consider in determining the credibility of a witness any matter that
has any tendency in reason to prove or disprove the truthfulness of his testimony at the
hearing, including but not limited to any of the following: [¶] . . . [¶] (e) His character for
honesty or veracity or their opposites.”
“[A] prior false accusation of rape is relevant on the issue of a rape victim‟s
credibility.” (People v. Franklin (1994) 25 Cal.App.4th 328, 335 (Franklin), citing
People v. Adams (1988) 198 Cal.App.3d 10, 18.)

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“The fact that a witness stated something that is not true as true is relevant on the
witness‟s credibility whether she fabricated the incident or fantasized it. [¶] The evidence
therefore constitutes „any matter that has any tendency in reason to prove or disprove the
truthfulness of his [or her] testimony at the hearing,‟ including the extent of the witness‟s
capacity to perceive, to recollect, or to communicate any matter about which he or she
testified, the extent of the witness‟s opportunity to perceive any matter about which he or
she testified, and the existence or nonexistence of any fact testified to by the witness. (§
780, subds. (c), (d) & (i).)” (Franklin, supra, 25 Cal.App.4th at pp. 335-336.)
“As with all relevant evidence, however, the trial court retains discretion to admit
or exclude evidence offered for impeachment.” (People v. Rodriguez (1999) 20 Cal.4th
1, 9.) Under section 352, “[t]he court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “For this purpose,
„prejudicial‟ is not synonymous with „damaging,‟ but refers instead to evidence that „
“uniquely tends to evoke an emotional bias against defendant” ‟ without regard to its
relevance on material issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
We emphasize that it is the exclusive province of the trial court to determine
whether the probative value of evidence outweighs its possible prejudicial effect.
(People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And the trial court‟s exercise of
discretion on this issue will not be disturbed on appeal absent a clear showing of abuse.
(Ibid.) This rule requires that the reviewing court engage in all intendments and
presumptions in support of the decision and consider the evidence in a light most
favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.)
It also requires that the party claiming abuse of discretion affirmatively establish the
point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.) It requires “a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that

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resulted in a manifest miscarriage of justice.” (People v. Rodriguez, supra, 20 Cal.4th at
pp. 9-10.)
Defendant‟s problem in showing that the trial court abused its discretion in
excluding the evidence is that the evidence does not necessarily show that the victim
made a false accusation. The victim said that B. knew that B.‟s father had molested C.
From this, the trial court could have rationally concluded, as it apparently did, that the
victim was simply repeating what B. had told her rather than making an accusation
against the father. Thus, the inference that the victim made a false accusation was weak
and C.‟s testimony that the father had not molested her would little impugn the victim‟s
credibility. Undoubtedly, as implicitly recognized by the trial court, the matter would
devolve into a mini-trial involving the victim and collateral witnesses (B., C., and the
father) who would support and counter whether the victim had in fact accused the father,
whether the father had molested C., whether B. knew about the molestation, and whether
B. and C. had motives to lie so as to shield the father from exposure. Excluding such
evidence is plainly not arbitrary, capricious, or patently absurd.
“The Supreme Court upheld a trial court‟s exercise of discretion to exclude
evidence pursuant to section 352 under facts similar to those presented here. (People v.
Bittaker (1989) 48 Cal.3d 1046, 1097.) The court stated: „[A witness] testified that when
she rejected defendant‟s advances, he pulled a gun and said, “you wouldn‟t argue if I
pulled the trigger.” Defense counsel sought to impeach [the witness with] evidence that
she had made false charges of sexual molestation against two other men. The trial court
upheld an objection under Evidence Code section 352. Its ruling is not an abuse of
discretion. The value of the evidence as impeachment depends upon proof that the prior
charges were false. This would in effect force the parties to present evidence concerning
two long-past sexual incidents which never reached the point of formal charges. Such a
proceeding would consume considerable time, and divert the attention of the jury from
the case at hand.‟ ” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1458 (Tidwell).)

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In Tidwell, the court made a similar point: “The same is true here. Although there
was some evidence that [the victim] made inconsistent statements, there was no
conclusive evidence that her prior rape complaints were false. The defense was unable to
obtain evidence from the men that [the victim] accused, and inferences could be drawn
either way from the circumstances of the prior incidents and [the victim‟s] statements
concerning the incidents. In addition to the weaknesses in the evidence concerning
falsity of the rape complaints, admitting the evidence would have resulted in an undue
consumption of time as the defense attempted to bolster its view and the prosecution
introduced evidence that [the accused rapist] had raped another female student. We
therefore cannot say that the trial court abused its discretion in excluding the evidence
based on the weak nature of the evidence of falsity of the complaints and the confusion of
the jury and consumption of time it would have engendered for the parties to embark on
the task of litigating the truthfulness of [the victim‟s] prior complaints.” (Tidwell, supra,
163 Cal.App.4th at p. 1458.)
The same is true here. Defendant simply reargues his point and fails to
demonstrate that the trial court‟s view was irrational. He therefore fails to carry his
burden to show abuse of discretion.
We also find no constitutional error. The state and federal Constitutions guarantee
a criminal defendant the right to confront and cross-examine witnesses against him.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) Those rights are violated when the
government interferes with the exercise of a defendant‟s right to present witnesses in his
own defense. (People v. Mincey (1992) 2 Cal.4th 408, 460.) As a fundamental element
of due process of law, a criminal defendant must be afforded a meaningful opportunity to
present a complete defense, subject to the limitations imposed by the rules of evidence.
(People v. Lucas (1995) 12 Cal.4th 415, 464.) Further, “Central to the Confrontation
Clause is the right of a defendant to examine a witness‟s credibility. See Davis [v. Alaska
(1974) 415 U.S. 308,] 316; see also Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000)

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(„At the core of the Confrontation Clause is the right of every defendant to test the
credibility of witnesses through cross-examination.‟).” (United States v. Adamson (9th
Cir. 2002) 291 F.3d 606, 612.) However, “The right to present exculpatory evidence has
limitations. (Taylor v. Illinois [(1988)] 484 U.S. [400,] 410.) Rules of procedure
governing the organized presentation of facts and allowing parties the opportunity to
contradict or explain the opponent‟s case must be adhered to.” (People v. Jackson (1993)
15 Cal.App.4th 1197, 1203.) Ordinarily, proper application of the rules of evidence does
not impermissibly infringe upon the accused‟s right to present a defense. (People v.
Lucas, supra, at p. 464.) Although cross-examination to test the credibility of a
prosecuting witness in a criminal case should be given wide latitude (People v. Brown
(2003) 31 Cal.4th 518, 545), “Exclusion of impeaching evidence on collateral matters
which has only slight probative value on the issue of veracity does not infringe on the
defendant‟s right of confrontation.” (People v. Greenberger (1997) 58 Cal.App.4th 298,
350.)
CSAAS
CSAAS, which was developed as a therapeutic tool to assist mental health
professionals, describes five stages or behaviors commonly found in or experienced by
children who have been sexually abused, including secrecy, helplessness, entrapment and
accommodation, delayed disclosure, and retraction. (People v. Bowker (1988) 203
Cal.App.3d 385, 389, fn. 3, 392, fn. 8 (Bowker).) Evidence regarding CSAAS “ „ “is
admissible solely for the purpose of showing that the victim‟s reactions as demonstrated
by the evidence are not inconsistent with having been molested.” ‟ ” (People v. Housley
(1992) 6 Cal.App.4th 947, 955 (Housley), quoting Bowker, supra, at p. 394.) Such
evidence, however, “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. McAlpin (1991)

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53 Cal.3d 1289, 1300 (McAlpin).) The expert testimony is “admissible for the limited
purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a
molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).)
Because particular aspects of CSAAS are as consistent with false testimony as true
testimony, and there is a possibility that a jury could use the expert evidence to
improperly infer that the abuse occurred, the admission of such evidence is subject to
certain limitations. (Housley, supra, 6 Cal.App.4th at p. 955; Bowker, supra, 203
Cal.App.3d at pp. 393-394; Patino, supra, 26 Cal.App.4th at p. 1744.) First, the CSAAS
evidence must be addressed or tailored to some specific myth or misconception suggested
by the evidence. (Housley, supra, at p. 955.) “Identifying a „myth‟ or „misconception‟
has not been interpreted as requiring the prosecution to expressly state on the record the
evidence which is inconsistent with the finding of molestation. It is sufficient if the
victim‟s credibility is placed in issue due to . . . paradoxical behavior, including a delay in
reporting a molestation.” (Patino, supra, at pp. 1744-1745.) CSAAS testimony “is
admissible to rehabilitate [the complaining] 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.” (McAlpin, supra, 53 Cal.3d
at p. 1300.) Second, the jury must be admonished that the expert‟s testimony is not
intended and should not be used to determine whether the victim‟s molestation claim is
true, but is admissible solely to show that the victim‟s reactions are not inconsistent with
having been molested. (Housley, supra, at pp. 955, 958-959.)
A trial court‟s decision “to admit expert testimony „will not be disturbed on appeal
unless a manifest abuse of discretion is shown.‟ ” (McAlpin, supra, 53 Cal.3d at p. 1299.)
During in limine proceedings, defendant sought to preclude Lewis‟s CSAAS
expert testimony on the ground that CSAAS is limited to children molested in the home
and inapplicable to children living with boyfriends. He added that there was a great
danger of prejudice because the jury would use the CSAAS components as a litmus test.

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The trial court reserved ruling on the issue until after the victim testified. After defendant
cross-examined the victim, the prosecutor noted that defendant had “developed a
minimum of three themes, one, that she is lying, two, that she‟s not to be believed
because of the delayed report and three, because there was conflicted reporting from the
alleged victim on the alleged sexual assault.” The trial court then explained as follows:
“[B]ut that the secrecy, the accommodation, the delay, conflict, and the letting out a little
bit of information at a time. For instance, in this case we have it was kissing and then it
was intercourse that she revealed lends itself to an allowance of the CSAAS and indicates
the CSAAS is probative. The prejudice is very low. There is little chance of confusion
because the jurors understand that Mr. Lewis does not know the facts of this case so the
parts that he is talking about which don‟t apply, they don‟t have to use and the parts he is
talking about that do apply they may or may not use.” It instructed the jury about
CSAAS in the language of CALCRIM No. 1193 before Lewis‟s testimony and, as
follows, during the jury-instruction phase of the trial: “You have heard evidence
regarding Child Sexual Abuse Accommodation Syndrome. This testimony about Child
Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed
any of the crimes charged against him. [¶] You may consider this evidence only in
deciding whether or not [the victim‟s] conduct was not inconsistent with the conduct of
someone who has been molested and in evaluating the believability of her testimony.”
Defendant argues that the trial court erred in admitting the CSAAS evidence
because it “is relevant only to a child who is secretive and helpless from sexual abuse by
a parental figure.” But he cites no authority for the proposition. Again, the evidence is
admissible for the purpose of showing that the victim‟s reactions as demonstrated by the
evidence are not inconsistent with having been molested. Admissibility is not dependent
upon a syndrome connected with a parental figure: “An expert has little need to refer to
the syndrome in order to testify that a particular type of behavior is not inconsistent with
a child having been abused.” (Bowker, supra, 203 Cal.App.3d at p. 392, fn. 8.)

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Defendant was free to put on competing evidence and argue that CSAAS was
inapplicable to the case, as he did. But he is incorrect in arguing that the CSAAS
evidence was inadmissible as a matter of law.
Defendant urges that knowledge of sexual abuse has become so widespread, since
the time when the CSAAS theory was first introduced, that the syndrome is no longer a
proper subject of expert testimony. This claim--that the public has become so well
informed about the behavior of child abuse victims as to obviate CSAAS evidence--is
speculative and contrary to the controlling authority in this state. (See People v. Brown
(2004) 33 Cal.4th 892, 906-907 [reaffirming earlier reasoning for admitting CSAAS
evidence].) To the extent that our Supreme Court has recognized that such evidence may
be relevant, useful, and admissible in a given case, as an intermediate appellate court, we
are in no position to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) In any event, Lewis‟s testimony concerning CSAAS was helpful in
explaining the different stages of reaction that some victims progress through. (See
Patino, supra, 26 Cal.App.4th at p. 1744 [CSAAS evidence admissible to disabuse
misconceptions about how a child reacts to molestation].) Jurors may have an
understanding that victims of abuse are reluctant to report the offense, but they may not
understand the reasons for the delayed reporting, or why the victims did not retaliate.
Accordingly, the trial court could have reasonably found that the expert testimony would
add to the jurors‟ common fund of information regarding the reactions of abuse victims.
Therefore, we conclude the trial court did not abuse its discretion in admitting the
expert‟s testimony.
Defendant finally argues that Lewis‟s testimony ran afoul of the rule that
proscribes testimony which recites the facts of the case at trial or obviously similar facts.
(See, e.g., People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384.) He relies on portions of
Lewis‟s testimony where he asserts that Lewis “illustrated each category with „examples‟
which coincided with the facts of the case.” There is no merit to this point.

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While particular “examples” arguably mirror some facts of the case, the
“examples” could mirror the facts in any child abuse case. For instance, defendant
complains that Lewis explained the stage of delayed, conflicting, and unconvincing
disclosure as a stage that “could be caused by feeling uncomfortable about the subject or
an inability to get help.” He then makes the leap that the explanation mirrors the facts of
the case because the victim “was a runaway, hiding from the authorities.”
When Lewis‟s testimony is read as a whole, however, it is apparent that he is
testifying about the CSAAS generally, not opining about the facts of the particular case
or the victim‟s credibility. We see no error on this ground.
To the extent that defendant relies on several out-of-state cases that have excluded
CSAAS evidence in its entirety on a variety of grounds to argue both that California
should exclude this type of evidence in all cases and that, in the instant case, the evidence
was improperly admitted (see, e.g., Com. v. Dunkle (Pa. 1992) 602 A.2d 830 [testimony
about uniformity of behaviors of abused children not sufficiently established to have
gained general acceptance in its particular field]), we reject the argument. Defendant has
not produced any evidence or authority that CSAAS evidence is no longer accepted in the
scientific community or that California courts are prepared to reconsider their opinions
accepting such evidence. Again, the California Supreme Court has referred to the
admissibility of CSAAS evidence in a variety of factual contexts to support various
rulings.
Defendant urges that the admission of the evidence transgressed his due process
rights because the evidence was irrelevant and prejudicial. But we have pointed out that
the evidence was highly probative because it helped the jurors to understand that children
who are molested sometimes act in ways that are counterintuitive. The evidence was not
unduly prejudicial because it was not geared toward the facts of this case specifically, but
was provided as a general explanation of how children who are abused sometimes act.

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Defendant finally claims that the trial court erred by instructing the jury in the
language of CALCRIM No. 1193 because it “advised the jury to use CSAAS evidence in
evaluating the credibility of the alleged victim‟s testimony, which is the same as telling
the jury to use the evidence to determine whether her molestation claim was true.” We
disagree.
CALCRIM No. 1193 is simply a cautionary instruction warning jurors they must
not consider CSAAS testimony as evidence that the defendant committed the offense,
and that they may consider CSAAS evidence only for the limited purpose of determining
whether the victim‟s conduct was inconsistent with the conduct of someone who had
been molested. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301 [generally, CSAAS
evidence is offered to disabuse a jury of misconceptions it might hold about how a child
reacts to a molestation].) It is true that CALCRIM No. 1193 broadens the scope of
CSAAS evidence to allow the jury to consider it in evaluating the victim‟s credibility.
But, when the victim‟s credibility is attacked, “[t]he [CSAAS] testimony is pertinent and
admissible.” (Patino, supra, 26 Cal.App.4th at p. 1745.) Here, the victim‟s credibility
was in dispute. Thus, the jury could properly consider CSAAS evidence in weighing the
victim‟s credibility and CALCRIM No. 1193 correctly stated the law in this regard.
MULTIPLE CONVICTIONS AND MULTIPLE PUNISHMENTS
Defendant contends that furnishing methamphetamine to the victim at the
Almaden Avenue apartment after the sex acts (count 6) was a cooperative act with
furnishing methamphetamine to her before the sex acts (count 5). He asserts that the two
acts constitute but one offense and cannot support multiple convictions. He similarly
reasons that furnishing methamphetamine to the victim and J. Z. at the Duane Avenue
apartment after the sex act (count 7-victim; count 10-J. Z.) was a cooperative act with
furnishing methamphetamine to the victim before the sex act (count 8). He concludes
that insufficient evidence supports his convictions for counts 6, 7, and 10. We disagree.

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In People v. Lopez (1992) 11 Cal.App.4th 844 (Lopez), the court held that it is
permissible to convict a defendant of more than one nonincluded offense arising out of a
single indivisible course of action and that the remedy for such a circumstance was found
in Penal Code section 654, precluding multiple punishment. (Lopez, supra, at p. 848.)
Lopez involved an indistinguishable set of convictions under Health and Safety
Code section 11352, offering to sell cocaine and transporting cocaine. Both offenses
resulted from a set of events in which it was arranged to sell two kilograms of cocaine to
an undercover detective, the cocaine was transported in a car to the site where the sale
was to take place and, when the cocaine was removed from the trunk of the car, the
defendant and his cohort were arrested. (Lopez, supra, 11 Cal.App.4th at p. 846.)
The court analyzed the development of the decisional law in the area of double
conviction and double punishment, observing that the defendant‟s “criminal activities
were directed to the single goal and objective of selling two kilograms of cocaine.”
(Lopez, supra, 11 Cal.App.4th at p. 850.) It cited Supreme Court cases that recognized a
blurring of the line between the double-conviction prohibition and the double-punishment
prohibition, which applied the remedy of staying punishment rather than reversing
convictions. (Id. at p. 849, citing People v. Pearson (1986) 42 Cal.3d 351, 358-359, and
In re Adams (1975) 14 Cal.3d 629, 635.) It concluded: “This „entire transaction should
reasonably be viewed as constituting . . . the commission of a single punishable offense.‟
([In re Adams, supra,] at p. 635.) Here, appellant has already been afforded that remedy
by the trial court, namely, a stay of the punishment imposed pursuant to count two. [¶] . .
. [¶] Appellant was properly convicted of two counts of violation of Health and Safety
Code section 11352.” (Lopez, supra, at p. 850.)
We agree with Lopez. Thus, if defendant‟s acts amounted to a single course of
conduct, the remedy is found in the bar against multiple punishment.
Penal Code section 654 provides, in relevant part: “[a]n act or omission that is
punishable in different ways by different provisions of law shall be punished under the

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provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” The purpose of
the statute is “to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus constitutes more than one
crime. Although the distinct crimes may be charged in separate counts and may result in
multiple verdicts of guilt, the trial court may impose sentence for only one offense--the
one carrying the highest punishment.” (People v. Liu (1996) 46 Cal.App.4th 1119,
1135.) The section‟s protection extends to cases in which a defendant engages in a
course of conduct that violates different offenses and comprises an indivisible course of
conduct punishable under separate statutes. (People v. Harrison (1989) 48 Cal.3d 321,
335.) As this court explained in People v. Braz (1997) 57 Cal.App.4th 1, 10, multiple
punishment is permissible notwithstanding Penal Code section 654 if the defendant
“entertained multiple criminal objectives which were independent of and not merely
incidental to each other. [Citation.] A defendant‟s criminal objective is „determined
from all the circumstances and is primarily a question of fact for the trial court, whose
findings will be upheld on appeal if there is any substantial evidence to support it.‟ ” We
must view the evidence in a light most favorable to the respondent and presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) The proper
procedure for disposing of a term banned by Penal Code section 654 is to impose and
stay the sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
Defendant contends that his punishment for the sex-acts counts (counts 1 & 2) and
after-sex-acts furnishing count at the Almaden Avenue apartment (count 6) should be
stayed because they “shared the same objective of distributing drugs in exchange for
sexual favors” for which he was punished under his conviction for count 5. He similarly
argues that the punishment for counts 7 and 10 “must be stayed in lieu of the punishment
for count eight because [he] shared the same objective.” According to defendant, “in

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both instances, [he] shared a single objective to provide drugs to [the victim] (for sex or
for recreational purposes).” There is no merit to defendant‟s contention.
The trial court was not required to make the inferences that defendant makes.
There was no direct testimony as to defendant‟s intent. The trial court could therefore
have accepted that defendant acceded to the victim‟s request for methamphetamine when
she first appeared at defendant‟s Almaden Avenue apartment. (Count 5.) It could have
then accepted that the two decided to have sex after getting high. (Counts 1 & 2.)7 It
could have further accepted that defendant gave the victim more methamphetamine to
encourage the victim‟s silence about the sex acts. (Count 6.) The same can be said for
the before-(count 7) and after-(count 8) sex furnishings at the Duane Avenue apartment.
As to count 10, the trial court could certainly have viewed that act of furnishing as
displaying an independent objective. The act was separate from counts 7 and 8 given that
defendant furnished to the victim in counts 7 and 8 while he furnished to J. Z. in count
10; and the act was separate from count 9 given that defendant furnished to J. Z. in count
10 at a separate time than he furnished to J. Z. in count 9.
STRIKE PRIOR
Defendant contends that the trial court erred by concluding that his prior
conviction constituted a strike. According to defendant, his prior was punishable as
either a felony or misdemeanor and he had been sentenced as a misdemeanant. But
defendant raised that very issue on appeal in another case. In People v. Barkley (2008)
166 Cal.App.4th 1590, we concluded that defendant‟s prior conviction was a felony (and
a strike) because the trial judge granted probation and required that defendant serve a jail
sentence as a condition of probation, a sentence “consistent with felony probation and
inconsistent with the imposition of a misdemeanor jail sentence.” (Id. at p. 1595.)
7 Defendant concedes that each sex act is a discrete crime that can be separately
punished. (People v. Harrison, supra, 48 Cal.3d at p. 324.)

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Defendant argues that Barkley was wrongly decided. We agree with the conclusion
reached in that case for the reasons stated therein. No purpose would be served by
repeating the reasoning here.
The parties agree that the trial court stayed a five-year enhancement (Pen. Code, §
667, subd. (a)) stemming from defendant‟s admission of the prior that had been alleged in
the information in relation to count 4. Since defendant was acquitted of count 4, there is
no justification for the punishment. We will therefore strike the sentence imposing and
staying the enhancement.
RESTITUTION FINES
Under Penal Code sections 1202.4 and 1202.45, the trial court imposed a
maximum $10,000 restitution fine in case No. CC644740, an $800 restitution fine in case
No. CC757145, and a $400 restitution fine in case No. CC509015 together with matching
parole revocation fines, the latter of which were suspended.
Defendant claims that the imposition of separate fines in each case totaling more
than $10,000 was unauthorized. We agree and strike the fines imposed in two of the
three cases, leaving a single restitution fine of $10,000 and a suspended matching parole
revocation fine of $10,000.
Penal Code section 1202.4, subdivision (a)(3)(A), provides that, in addition to any
other penalty provided or imposed under law, the court shall order a person convicted of
a crime to pay a restitution fine in accordance with Penal Code section 1202.4,
subdivision (b). Penal Code section 1202.4, subdivision (b) provides, “In every case
where a person is convicted of a crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.” (Italics added.) Penal Code section 1202.4,
subdivision (b)(1), states that the fine shall be set between $200 and $10,000 for felonies.

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Defendant argues that the three cases herein constituted one case for purposes of
sentencing. He relies on People v. McNeely (1994) 28 Cal.App.4th 739 (McNeely), and
People v. Ferris (2000) 82 Cal.App.4th 1272 (Ferris).
In McNeely, the court addressed a claim similar to defendant‟s claim here. There,
at separate hearings, the defendant pleaded guilty to eight burglaries charged in one
information and two burglaries charged in another. At the next hearing, the court
imposed sentence on all charges and also ordered the defendant to pay $93,000 in
restitution to the various victims under former Government Code section 13967,
subdivision (c), which applied at that time. On appeal, the defendant claimed that
restitution was limited to $10,000. The reviewing court agreed. It explained that the
statute “did not give the court authority to order restitution up to $10,000 for each victim
or on each count. Nor did it allow a restitution order exceeding $10,000 where, as here,
a defendant is sentenced in one hearing on two or more cases.” (McNeely, supra, 28
Cal.App.4th at p. 743, italics added.) Noting cases limiting restitution fines to the
$10,000 limit, regardless of the number of victims or counts, the court observed that
“[w]hile a trial court can separately sentence a defendant on different cases at a single
hearing [citation], here the court combined the charges in both cases in imposing the
prison term and ordering restitution. We do not believe this creates separate sentencing
proceedings on the two cases. When a penal statute is ambiguous, it must be construed in
the light most favorable to the defendant. [Citation.] When [Government Code] section
13967 is construed in this light, a restitution order on a crime committed in 1989 is
limited to $10,000.” (Id. at pp. 743-744.)
In Ferris, the court addressed a similar claim concerning restitution fines under
Penal Code sections 1202.4 and 1202.45. As in McNeely, the defendant was charged in
two cases with crimes committed on different occasions. After the defendant pleaded not
guilty, the prosecutor moved to join the cases for trial under Penal Code section 954. The
court granted the motion but did not formally consolidate the two cases under a single

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information and case number. Thereafter, the jury returned separate verdicts of guilt in
each case, and separate probation reports were prepared. At sentencing, the court
imposed $10,000 restitution and matching parole revocation fines in each case. On
appeal, the defendant claimed that the imposition of separate fines totaling more than
$10,000 was unauthorized because the two cases had been consolidated, and Penal Code
sections 1202.4 and 1202.45 limited fines to $10,000 “[i]n every case” where a person is
convicted of a felony and the sentence includes a period of parole. (Ferris, supra, 82
Cal.App.4th at pp. 1274-1276.) To resolve the defendant‟s claim, the court construed the
meaning of the phrase “in every case.”
Observing that “joinder” and “consolidation” are terms often used
interchangeably, the court first opined that under the facts of the case, any linguistic
distinction was irrelevant because clearly, the defendant was “substantively tried and
sentenced in one joint case.” (Ferris, supra, 82 Cal.App.4th at p. 1277.) Finding the
case similar to McNeely, the court noted that Penal Code sections 1202.4 and 1202.45
“do not specify whether the phrase „every case‟ means every separately charged and
numbered case or every jointly tried case.” (Ferris, supra, at p. 1277.) Given this
ambiguity, the court adopted the construction more favorable to the defendant and
concluded that the phrase in “ „every case‟ ” “includes a jointly tried case although it
involves charges in separately filed informations.” (Ibid.) The court noted that the
charges had been joined for trial, which “effectively” joined the two cases despite the fact
that they retained separate case numbers. Accordingly, the court held that it was error to
impose restitution exceeding the statutory maximum of $10,000. The court further
observed that allowing separate restitution fines in a case involving separate informations
but joint trials and sentencing could lead prosecutors to seek numerous fines by filing
multiple informations that allege a single offense. The court declined to condone such an
exercise of form over substance.

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In People v. Enos (2005) 128 Cal.App.4th 1046 (Enos), at a single hearing, the
defendant entered into a negotiated disposition and pleaded guilty to charges alleged in
three separate cases. The trial court imposed separate restitution and parole revocation
fines in each case, totaling $1,800. Citing Ferris, the defendant claimed that the
imposition of three separate restitution fines was unauthorized because the three separate
cases were resolved in a comprehensive plea agreement at a single sentencing hearing.
The court disagreed, finding Ferris inapplicable for two reasons.
“First, the facts are different. Here, there was never a motion to join or
consolidate the three cases, and, even though there was a combined sentencing hearing,
the cases were not tried together, as they were in Ferris. Here, throughout the
proceedings, the trial court and the parties treated the cases as separate. In addition, three
separate appellate records were prepared, each corresponding to its own number.
Separate minute orders and separate notices of appeal were filed in each case.
“Second, we think the Ferris court‟s primary concern was not with the trial court‟s
imposition of more than one [Penal Code] section 1202.4, subdivision (b) restitution fine
and more than one suspended [Penal Code] section 1202.45 parole revocation fine but
rather with the resulting total of the fines that exceeded the $10,000 statutory limit.
[Citation.] The court cited its earlier decision in [McNeely] where it held that a restitution
order cannot exceed $10,000 if the defendant is sentenced in multiple cases at a single
hearing. [Citation.] Thus, in our view Ferris stands for the proposition that a trial court
cannot impose multiple [Penal Code] section 1202.4, subdivision (b) restitution fines and
multiple [Penal Code] section 1202.45 parole revocation fines in nonconsolidated cases
where the total fines exceed the statutory maximum; the opinion does not address the
question whether separate fines are proper where the total does not exceed the statutory
maximum.” (Enos, supra, 128 Cal.App.4th at p. 1049.)
Last, the court opined that nothing in the statutes prohibits multiple fines “in
consolidated cases disposed of at a single sentencing hearing. To read these statutes as

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precluding separate fines that do not exceed the statutory maximum would result in a rule
of law with no practical effect, because a defendant could never show prejudice. A trial
court sentencing a defendant in consolidated cases would simply calculate the amount of
the restitution fines as a whole instead of breaking them down separately for each case.
This is in essence exactly what the trial court did here; it expressed an intention to impose
a total fine of $1,000, and then allocated that fine among the three cases so that the
statutory minimum fine was imposed in each. Because the total fine would be the same,
whether imposed in the aggregate or portioned and separately imposed in each case, there
cannot be any prejudice to appellant.” (Enos, supra, 128 Cal.App.4th at pp. 1049-1050,
fn. omitted, first italics added.)
In People v. Schoeb (2005) 132 Cal.App.4th 861, the defendant entered a
negotiated settlement to five separate cases, pleading guilty to nine charges in exchange
for dismissal of the others. At a single sentencing hearing, the trial court imposed five
separate restitution fines, totaling $2,600. On appeal, the court upheld the separate fines.
It distinguished Ferris, noting that the defendant‟s cases were never consolidated for trial
and that there were separate abstracts and minute orders in each case. Moreover,
applying Enos, the court found no error because the total amount of restitution did not
exceed $10,000.
This case, like Enos and Schoeb, is distinguishable from Ferris because
defendant‟s three cases were not jointly tried. However, this distinction does not
necessarily mean that defendant‟s fines were authorized. The phrase “in every case” is
no less ambiguous here than it was under the circumstances in Ferris. In Ferris, the
court‟s interpretation of the phrase “in every case” was not controlled by the fact that the
cases were not formally consolidated. They retained separate numbers, and various
administrative procedural details reflected the separate status of the cases, e.g., separate
jury verdicts and probation reports in each case. Rather, focusing on substance rather
than form, the court viewed the phrase in a practical rather than technical way and

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considered it reasonably susceptible of an interpretation based on how the numerous
charges in multiple cases were resolved. Implicitly, the court reasoned that a single trial
on all the charges would be the same regardless of whether the charges were alleged in
one case or multiple cases. In effect, therefore, the unified resolution of the charges
consolidated the three technically separate cases into one for the purpose of restitution
under Penal Code sections 1202.4 and 1202.45.
Here, we do not consider the fact that defendant‟s three cases were not formally
consolidated under a single information or jointly tried controlling on the meaning of the
phrase “in every case.” Thus, we find no material basis to distinguish this case from
Ferris.
Under the circumstances, we hold that the phrase “in every case” may reasonably
be construed to include three cases that are fully and completely resolved at the same
time.
As noted, in construing ambiguous restitution statutes, the courts in McNeely and
Ferris adopted the construction more favorable to the defendant. Here, even if we
assume that the phrase “in every case” reasonably may be interpreted to limit restitution
fines to $10,000 only where there is one accusatory pleading and case number or where
multiple cases are jointly tried, we shall adopt the interpretation more favorable to
defendant. Thus, we hold that Penal Code sections 1202.4 and 1202.45 limit fines to
$10,000 not only where there is one case number or where multiple cases jointly tried but
also where the charges in multiple cases are fully and completely resolved at the same
time.
Finally, we note that in Enos, the court read Ferris to mean that “a trial court
cannot impose multiple [Penal Code] section 1202.4, subdivision (b) restitution fines and
multiple [Penal Code] section 1202.45 parole revocation fines in nonconsolidated cases
where the total fines exceed the statutory maximum.” (Enos, supra, 128 Cal.App.4th at

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p. 1049, italics added.) Thus, even under the Enos court‟s view of Ferris, the imposition
here of three fines totaling $11,200 would be unauthorized.
We conclude that at sentencing, Penal Code sections 1202.4 and 1202.45
permitted the imposition of restitution and parole revocation fines up to $10,000. Thus,
the imposition of restitution fines and parole revocation fines totaling $11,200 was
unauthorized.
DISPOSITION
The judgment is modified to strike the Penal Code section 667, subdivision (a),
enhancement. The judgment is modified to reflect a total restitution fine of $10,000 and
total suspended parole revocation fine of $10,000. As so modified, the judgment is
affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.

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