People v. Valdivia CA4/3

Filed 10/29/26 P. v. Valdivia CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE THE PEOPLE, Plaintiff and Respondent, G065665 v. (Super. Ct. No. 17CF1582) ALFREDO VALDIVIA, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Christopher P. Beesley and Cobi S. Furdek, Deputy Attorneys General, for Plaintiff and Appellant. * * * Alfredo Valdivia was convicted of two counts of sexual abuse of his niece. On appeal, Valdivia contends that the court erred by: (1) instructing the jury with both the prosecution’s and defense’s versions of CALCRIM No. 1193 regarding evidence related to Child Sexual Abuse Accommodation Syndrome (CSAAS); and (2) imposing the middle term instead of the presumptive low term without expressly weighing the aggravating and mitigating factors pursuant to Penal Code1 section 1170, subdivision (b)(6). We disagree and affirm the judgment. FACTS A. Factual Background In 2016, child protective services removed D.O., who was 12 years old, and her younger brother from the care of their mother, who was an alcoholic. D.O. and her brother eventually went to live with their paternal aunt, who was married to Valdivia. Not long after D.O. began living with her aunt, Valdivia began to sexually abuse her. D.O. testified that Valdivia vaginally penetrated her at least 10 times, forced her to perform oral sex more than five times, and anally penetrated her at least five times. In May 2017, D.O. was sent to live with her father and stepmother. Soon after moving into her father’s house, D.O. disclosed to her stepmother that Valdivia had sexually abused her. D.O.’s stepmother reported the sexual abuse to D.O.’s social worker, who then reported it to the police. 1 All further statutory references are to the Penal Code. 2 B. Procedural History In an amended information, Valdivia was charged with two counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 1 and 2). The amended information also alleged as to count 2 that Valdivia had substantial sexual conduct with a child (§ 1203.066, subd. (a)(8)). The amended information further alleged as to counts 1 and 2 that the victim was particularly vulnerable within the meaning of California Rules of Court, rule 4.421(a)(3), and that Valdivia took advantage of a position of trust and confidence to commit the crime within the meaning of California Rules of Court, rule 4.421(a)(11). The jury found Valdivia guilty of counts 1 and 2 and found true, as to count 2, that Valdivia had substantial sexual conduct with D.O. who was under 14 years of age. The court found true the circumstances in aggravation under California Rules of Court, rule 4.421(a)(3) and (11). The trial court imposed the midterm sentence of six years on count 1 and a consecutive two years on count 2 (one-third the midterm of six years), for a total sentence of eight years in state prison. DISCUSSION I. CALCRIM NO. 1193 Valdivia argues that the trial court abused its discretion in instructing the jury with two different versions of CALCRIM No. 1193, using both the prosecution’s and defense’s proposed language, because such instruction impermissibly drew attention to the CSAAS testimony. We disagree. 3 A. Factual Background 1. D.O.’s Descriptions of Sexual Abuse When D.O. first disclosed Valdivia’s sexual abuse, she downplayed the seriousness and extent of the abuse. In May 2017, D.O. went with her stepmother and father to the police department and spoke with Officer Breeze. In her conversation with Breeze, D.O. was crying and quiet and did not appear to want to talk about the sexual abuse. When Breeze asked for specifics, D.O. said she could not remember. Breeze testified that D.O. described approximately three incidents of intercourse and one incident of anal penetration which occurred between December 2016 and March 2017. When asked by Breeze, D.O. denied that Valdivia had her orally copulate him. D.O. testified at trial that she minimized to the police how many times Valdivia touched her sexually. Prior to trial in October 2024, D.O. had never told anyone that Valdivia had sexually abused her more than five to ten times. When D.O. met with the prosecutor, she disclosed for the first time that Valdivia made her orally copulate him at least five times. When she testified at trial, D.O. disclosed many more incidents than in her previous statements. Defense counsel cross-examined D.O. regarding why she testified at trial to more incidents of sexual abuse than she had previously disclosed to investigators. Defense counsel also asked D.O. why she had not disclosed the sexual abuse to her social worker and why she told her social worker that she wanted to continue living with her aunt, despite the sexual abuse by Valdivia. 4  2. Expert Testimony After D.O. testified, the prosecution called Dr. Mindy Mechanic, a clinical forensic psychologist, as an expert witness regarding the psychology of child victims of sexual abuse. Mechanic discussed how victims of childhood sexual abuse may respond in ways that are surprising or counterintuitive to observers. Dr. Roland Summit first published an article regarding CSAAS in 1980. Mechanic testified that the term “counterintuitive victim behaviors” is the latest in a line of research stemming from Summit’s work. Although the two concepts are similar, the CSAAS model is outdated while the counterintuitive victim behavior model is a stronger, more research-based approach. Mechanic gave some examples of counterintuitive behavior by child victims of sexual abuse: they may not fight back; they may fail to immediately disclose the sexual abuse or tell a parent; and they may agree to continue to interact with their abuser. She also testified that she would not expect a child to make a full disclosure when he or she first reports the sexual abuse. Defense counsel cross-examined Mechanic on the difference between CSAAS and “counterintuitive victim behaviors.” She agreed that Summit later said that CSAAS had been improperly used by prosecutors and expert witnesses as evidence that abuse had occurred. On redirect examination, Mechanic clarified that she does not use the phrase “CSAAS” because it is outdated. 3. Jury Instructions Both parties submitted their own versions of CALCRIM No. 1193. Valdivia’s trial brief sought to exclude testimony about CSAAS. 5 Valdivia argued that if CSAAS testimony was going to be admitted, he proposed instructions to be given to the jury before Mechanic’s testimony and at the close of the case. The prosecution proposed a modified version of CALCRIM No. 1193 which included the term “counterintuitive victim behaviors.” The trial court discussed the proposed jury instructions with the parties. Valdivia opposed the prosecution’s suggestion that the jury be instructed with a version of CALCRIM No. 1193 which initially replaced the term “CSAAS” with “counterintuitive victim behavior.” The court noted that Mechanic discussed both terms in her testimony. The prosecution revised its proposed version to include both CSAAS and counterintuitive victim behavior. The court then proposed giving both the defense’s and the prosecution’s proposed instructions: “But both instructions essentially tell the jurors that this is evidence just to explain the behavior of the child. It doesn’t—it shouldn’t be used for the purpose of determining guilt. It’s only to determine whether or not the child’s behavior is—you can expect that kind of behavior from a child. “In fact, the instruction says that it’s offered for the limited purpose of showing the complaining witness’s reactions as demonstrated by the evidence. And so that’s—that’s the primary purpose for giving it. And I, frankly, think that both instructions are . . . appropriate. So that’s what I would like to do. I know both of you would probably object to that, but that’s what I’m going to ask that we do.” Although the prosecution noted that this might be “duplicative,” neither party objected to the trial court’s proposal to instruct the jury with both the defense’s and prosecution’s versions of CALCRIM No. 1193, and there was no further discussion on the issue. 6  The court ultimately instructed the jury with two versions of CALCRIM No. 1193 at the end of trial. The first instruction stated: “1193. Testimony On Child Sexual Abuse Accommodation Syndrome [¶] You have heard testimony from Dr. Mindy Mechanic regarding child sexual abuse accommodation syndrome and counterintuitive victim behaviors. [¶] Child sexual abuse accommodation syndrome and counterintuitive victim behaviors relates to a pattern of behavior that may be present in child sexual abuse cases. Testimony as to the accommodation syndrome is offered only to explain certain behavior of an alleged victim of child sexual abuse. “Dr. Mindy Mechanic’s testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him or any conduct or crime with which he was not charged. “You may consider this evidence only in deciding whether or not [D.O.’s] conduct was consistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” The second instruction provided: “Limiting Instruction—CSAAS [¶] You have heard testimony related to Child Sexual Abuse Accommodation Syndrome. This evidence must not be received or considered by you as proof that the complaining witness’ claims of sexual assault are true. “You must not use this witness’ testimony about child sexual abuse accommodation syndrome as evidence that the Defendant committed any of the crimes charged against him. This witness’ testimony does not express any opinion as to whether [D.O.] is telling the truth or whether individuals who show these characteristics are telling the truth. 7  “You are to presume that the Defendant is innocent. The People have the burden of proving Defendant’s guilt beyond a reasonable doubt. Thus, you may consider the evidence concerning the syndrome and its effect only for the limited purpose of deciding whether the complaining witness’ reactions, as demonstrated by the evidence, are consistent or inconsistent with her having been molested and in evaluating the believability of her testimony.” B. Legal Standard 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. McAlpin (1991) 53 Cal.3d 1289, 1300.) This evidence helps “‘explain the emotional antecedents of abused children’s seemingly self-impeaching behavior.’” (Id. at p. 1301.) CSAAS evidence is relevant solely for the limited purpose of evaluating the credibility of an alleged child victim. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069 (Mateo).) We review instructional error claims under a de novo standard of review. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) “The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law . . . .’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “We consider the challenged instruction in the context of the instructions as a whole and the trial record to determine whether it is reasonably likely the jury applied the instruction in an impermissible manner.” (People v. Page (2025) 114 Cal.App.5th 1022, 1028– 1029 (Page).) Courts generally presume that a jury “can and will dutifully 8 follow the instructions they are given, including instructions that limit a jury’s consideration of evidence for certain purposes or against certain parties.” (People v. Washington (2017) 15 Cal.App.5th 19, 26 (Washington).) C. Analysis As a threshold matter, the Attorney General argues that Valdivia forfeited this claim by failing to object below. “Generally, an instruction may not be challenged on appeal unless the party made an appropriate objection at trial.” (People v. Sexton (2019) 37 Cal.App.5th 457, 466.) Moreover, “[a] defendant may not claim on appeal that a jury instruction which correctly states the law is incomplete, misleading, or too general unless the defendant had requested clarification or amplification of the instruction in the trial court.” (People v. Temple (2025) 110 Cal.App.5th 1281, 1293.) “Failure to request a clarification results in forfeiture of any challenge to the instruction.” (Ibid.) Here, although defense counsel voiced an objection to the use of the phrase “counterintuitive victim behaviors” in the prosecution’s proposed instruction, defense counsel did not object to the trial court’s plan to instruct the jury with two versions of CALCRIM No. 1193. Accordingly, any argument that the trial court erred in instructing the jury with both instructions was forfeited. Even if Valdivia had raised this claim in the trial court, it fails on the merits. The two versions of CALCRIM No. 1193 with which the court instructed the jury, considered as a whole and in the context of Mechanic’s testimony, accurately instructed the jury regarding CSAAS evidence. (Page, supra, 114 Cal.App.5th at p. 1029.) Both instructions properly limited the jury’s consideration of the CSAAS testimony, explicitly informing the jury that it could only use it to evaluate D.O.’s credibility, not as evidence of 9 Valdivia’s guilt. We presume the jury understood and followed the court’s instructions. (Washington, supra, 15 Cal.App.5th at p. 26.) Mechanic’s testimony was highly probative because it addressed particular issues raised by D.O.’s testimony, namely why D.O. initially downplayed the sexual abuse and only later more fully disclosed its frequency and severity. To minimize prejudice, the trial court gave two consecutive instructions on the limited use the jury could make of the evidence regarding CSAAS and counterintuitive victim behaviors. Whatever prejudice the testimony might have caused was not undue and certainly did not outweigh, much less substantially outweigh, the testimony’s probative value. We are unpersuaded by Valdivia’s argument that giving two consecutive instructions impermissibly emphasized the CSAAS evidence. The jury was instructed: “If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it.” The jury presumably followed this instruction. (Washington, supra, 15 Cal.App.5th at p. 26.) A court may refuse duplicative instructions if they risk confusing the jury. (People v. Gonzales (2012) 54 Cal.4th 1234, 1276.) The two instructions here conveyed similar information but were not likely to confuse the jury. There were differences between the two instructions. The first instruction given included the phrase “counterintuitive victim behaviors.” The second instruction stated the witness’s testimony did not express any opinion as to whether D.O. or individuals who show characteristics of CSAAS were telling the truth. The second instruction also provided that the jury was to presume that Valdivia was innocent and that the People had the burden of proving his guilt beyond a reasonable doubt. 10  Valdivia further argues that the two instructions were likely to confuse the jury based on slight differences in their wording. The prosecution’s version instructed the jury that it “may consider this evidence only in deciding whether or not [D.O.’s] conduct was consistent with the conduct of someone who has been molested . . . .” (Italics added.) The defense’s version instructed the jury that it “may consider the evidence . . . only for the limited purpose of deciding whether the complaining witness’ reactions . . . are consistent or inconsistent with her having been molested . . . .” (Italics added.) We are not convinced there is a reasonable likelihood the jury would have been confused by this small difference in the wording of the two instructions. They both informed the jury that it must determine whether D.O.’s conduct either was or was not consistent with being sexually molested. Even if the trial court erred in giving both instructions, any error was harmless under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (See Mateo, supra, 243 Cal.App.4th at p. 1074 [alleged instructional error regarding CSAAS evidence is reviewed under Watson].) Under that standard, an error is harmless unless it is “reasonably probable” the outcome would have been different absent the error. (Watson, at p. 836.) Valdivia has not shown that it is “reasonably probable” he would have received a more favorable result if the court had instructed the jury using only a single version of CALCRIM No. 1193. Both instructions correctly stated the applicable law, properly limited the jury’s consideration of the CSAAS evidence, and were not unduly confusing. 11  II. MIDTERM SENTENCE Valdivia argues that the trial court erred by failing to apply the presumptive low term sentence on count 1 under section 1170, subdivision (b)(6) (hereafter section 1170(b)(6)). More specifically, Valdivia argues there was no indication the court was aware of the statutory presumption in favor of the lower term, and the court did not expressly state that the aggravating circumstances outweighed the mitigating circumstances such that the midterm sentence was appropriate. We conclude the court did not abuse its discretion. A. Relevant Proceedings After the jury found Valdivia guilty, the trial court found true that Valdivia was in a position of trust and D.O. was particularly vulnerable. (Cal. Rules of Court, rule 4.421 (a)(3), (11).) Valdivia and the prosecution later filed sentencing briefs. The prosecution argued that the aggravating factors outweighed the mitigating factors under section 1170, subdivision (b). At the sentencing hearing, the trial court briefly addressed the mitigating factors before hearing argument from the parties: “And before I hear, I’ll say, I’m also fully aware of some of the mitigating factors. And I made a list of those for myself. [¶] The SARATSO, which is found on the P&S report at Page 8, indicates that he is a low risk to reoffend. He has no prior record. He is married with three children. And apparently he has suffered some trauma in his own life at age—I think he was four or five years old. He himself was placed into Orangewood, which is a facility for children who have been abused or neglected.” The trial court then heard argument from both parties regarding the aggravating and mitigating factors. Defense counsel argued that Valdivia 12 should be sentenced to the low term based on his low risk of reoffending and lack of prior criminal record. The prosecution argued for the high term on the ground that Valdivia had “continuously raped his 12-year-old niece, who was placed in his home as a foster child.” The prosecution further noted that the court had found true that Valdivia was in a position of trust and D.O. was particularly vulnerable. The trial court then summarized the mitigating factors: “[Valdivia] and his siblings were removed from his mother’s care when he was four years old. And there was apparently some abuse of . . . him by his older siblings, and he was placed in Orangewood Children’s Home. And apparently, he did not have a relationship with his mother. [¶] . . . [¶] When I look at mitigation—well, there’s actually no aggravation of defendant personally, at least that’s according to the probation report. Mitigation. As I’ve mentioned, he has no prior record. And I do think that there is a super- mitigator in his childhood trauma.” The trial court found the following aggravating factors applied: “I do think that the factors in aggravation apply, [California Rules of Court, rule] 4.421, which sets forth repeated sexual abuse, allegedly—or it’s been proven now—by the defendant on the victim. The victim appears to have been vulnerable due to her young age. I think that she was 12 years old. And that’s an aggravating factor under [rule] 4.421(a)(3). And I also think that there was a position of trust or confidence that he took advantage of, as an aggravating factor under [rule] 4.421(a)(11).” The court also found that D.O. was vulnerable based on the fact she was a foster child with no parent involved, pursuant to California Rules of Court, rule 4.421(a)(3). 13  The trial court then imposed the midterm of six years on count 1 and a consecutive term of two years on count 2, which was one-third the midterm, for a total sentence of eight years. B. Legal Standard Effective January 1, 2022, section 1170, subdivision (b)(1), makes the middle term the presumptive sentence for a determinate term of imprisonment. (People v. Achane (2023) 92 Cal.App.5th 1037, 1041.) Notwithstanding section 1170, subdivision (b)(1), “the court shall order imposition of the lower term” if any of the enumerated factors contributed to the commission of the offense. (§ 1170(b)(6).) As relevant here, one of these factors is whether “[t]he person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.” (§ 1170(b)(6)(A).) However, if “the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice,” the court is not required to impose the lower term. (§ 1170(b)(6).) We review a court’s sentencing choices for abuse of discretion. (People v. Fredrickson (2023) 90 Cal.App.5th 984, 988 (Fredrickson).) A defendant is entitled to a sentencing decision made in the exercise of informed discretion, and a court that is unaware of the scope of its discretion cannot exercise informed discretion. (People v. Salazar (2023) 15 Cal.5th 416, 424.) “To prove an abuse of discretion, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not 14 be set aside on review.”’” (People v. Lee (2017) 16 Cal.App.5th 861, 866; see also People v. Ochoa (2020) 53 Cal.App.5th 841, 852 [appellate court assumes trial court understood and properly exercised its sentencing discretion, and error will not be presumed from a silent record]; Cal. Rules of Court, rule 4.409 [“[U]nless the record affirmatively reflects otherwise,” appellate court presumes sentencing court considered all relevant factors in the California Rules of Court].) The burden is on the party attacking the sentence to show the court misunderstood its sentencing discretion. (Fredrickson, supra, 90 Cal.App.5th at p. 988.) C. Analysis Our review of the record demonstrates that the trial court found that the low term presumption under section 1170(b)(6) applied based on Valdivia’s childhood abuse. Although the court did not explicitly quote the statutory language that the abuse “was a contributing factor in the commission of the offense,” it twice noted that Valdivia’s childhood abuse was a mitigating factor, even calling it a “super-mitigator.” Thus, the court was required to impose the low term unless it found that the aggravating circumstances outweighed the mitigating circumstances. (§ 1170(b)(6).) Valdivia argues it is ambiguous whether the trial court understood that section 1170(b)(6) made the low term presumptive because the court did not cite section 1170(b)(6) or expressly balance the aggravating and mitigating circumstances thereunder. We disagree. After discussing the mitigating circumstances, the court noted that various aggravating circumstances applied pursuant to rule 4.421 of the California Rules of Court, including that there was repeated sexual abuse, (rule 4.421(a)(1)), the victim was particularly vulnerable due to her young age and the fact she was a foster child (rule 4.421(a)(3)), and Valdivia took advantage of a position of 15 trust or confidence (rule 4.421(a)(11)). After discussing both the aggravating and mitigating circumstances, the court then imposed the middle term on count 1. Valdivia has not pointed to any evidence that affirmatively demonstrates the court was unaware of section 1170(b)(6) or misunderstood its sentencing discretion. (People v. Nielsen (2026) 119 Cal.App.5th 816, 826 (Nielsen).) “In the absence of evidence to the contrary, we presume that the court ‘knows and applies the correct statutory and case law.’” (People v. Thomas (2011) 52 Cal.4th 336, 361.) The trial court did not explicitly refer to section 1170(b)(6), but Valdivia has not cited any case requiring such an invocation. In fact, appellate courts have upheld imposition of the middle term where, as here, the court impliedly weighed the aggravating and mitigating circumstances without expressly invoking section 1170(b)(6). (See, e.g., People v. Caparrotta (2024) 103 Cal.App.5th 874, 905, disapproved on another ground in People v. SanMiguel (2026) 20 Cal.5th 254, 287–288, fn. 7 [where court stated it had weighed both aggravating and mitigating circumstances and then imposed a midterm sentence, its failure to explicitly cite section 1170(b)(6) did not require reversal]; Nielsen, supra, 119 Cal.App.5th at p. 826 [“[T]he record supports the inference that the court considered defendant’s childhood trauma as a mitigating factor and weighed it against aggravating factors in the balancing that section 1170(b)(6) requires”] (italics added).) As is the case here, “[f]ormal incantation of the statutory language is unnecessary where the record shows, in substance, that the court followed the dictates of the statute.” (Nielsen, at p. 828.) Furthermore, where a statute requires a statement of reasons, California Rules of Court, rule 4.406(a) requires a judge to “state in simple language the primary factor or factors that support the exercise of 16 discretion,” but “[t]he statement need not be in the language of the statute or these rules.” Here, the trial court considered the proffered evidence, balanced the mitigating and aggravating factors, and applied the relevant sentencing laws. Under these circumstances, we cannot say the court abused its discretion. DISPOSITION The judgment is affirmed. SERVINO, J. WE CONCUR: MOTOIKE, P. J. MOORE, J. 17