Filed 12/4/25 P. v. Leslie 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E081715
v. (Super.Ct.No. FVI20000947)
STEPHEN ROWELL LESLIE II, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton,
Judge. Affirmed in part; reversed in part with directions.
Robert E. Boyce, 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, Arlene A. Sevidal, Randall D.
Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and
Respondent.
1 A jury convicted Stephen Rowell Leslie II of committing numerous sexual
offenses against his minor stepdaughter and daughter, along with one count of the
unlawful purchase or receipt of a firearm while subject to a protective order (Pen. Code,
§ 29825, subd. (a) (§ 29825(a))) and other offenses related to his attempts to evade law
enforcement and resist arrest after his daughter reported the abuse. (Unlabeled statutory
references are to the Penal Code.)
On appeal, Leslie argues that his trial counsel rendered ineffective assistance by
failing to move to sever the trial on the firearm offense. He also argues that the trial court
erroneously instructed the jury on the elements of that offense, providing them with the
elements of a similar but uncharged misdemeanor. The People concede the instructional
error, and we agree. Leslie also argues that (1) the firearm offense as charged is not
supported by sufficient evidence, (2) the trial court committed several prejudicial
evidentiary errors, and (3) the prosecution committed prejudicial misconduct during
closing argument. We reverse the conviction on count 18 because of the instructional
error. We also find the evidence insufficient to support a conviction on the charged
offense, so the charge cannot be retried. We otherwise affirm.
BACKGROUND
Leslie was born in 1978. He married Araceli R. in 2008. Leslie and Araceli had
two daughters: Jane Doe C. (born in November 2006) and Jane Doe M. (two years
younger than Doe C.). Araceli had two older children: Jane Doe V. (born in December
1997) and Marcus S. (two years younger than Doe V.).
2 I. Doe C. reports that Leslie sexually abused her
Doe V., her boyfriend, and her children visited with her family (Araceli, Leslie,
Doe C., and Doe M.) for about two weeks in March and April 2020. Doe V. was then 22
years old. During the visit, Doe C. overheard a telephone conversation between Doe V.,
her boyfriend, and his mother, in which Doe V. was talking about having been sexually
assaulted by Leslie. Doe C., who was then 13 years old, subsequently told Doe V. that
Leslie was sexually abusing her. Doe V. drove home the next day, told Marcus what
happened, and asked him to tell Araceli, which he did on April 20 by calling her at work.
After work, Araceli took Doe C. and Doe M. to Araceli’s friend’s house to spend
the night. She lied to Leslie and the girls, telling them that her friend wanted to spend
time with the girls. As Doe C. was packing to leave, Leslie walked in and mouthed to
her, “Don’t tell anyone.” While driving to the friend’s house, Araceli asked Doe C. if
Leslie sexually abused her. Asked at trial how she responded to the question, Doe C.
testified that she told Araceli “the truth.” Araceli dropped off Doe M. at her friend’s
house and took Doe C. to the emergency room.
San Bernardino County Sheriff’s Deputy Kyle Shuler interviewed both Doe C. and
Araceli at the hospital. Doe C. said that Leslie last sexually abused her on the previous
day. According to Shuler, Doe C. described what happened during the most recent
incident as Leslie inserting his penis into her vagina and her orally copulating him.
Shuler had Doe C. make two pretext phone calls to Leslie, in which she accused
him of having sex with her. Leslie denied the allegations.
3 II. The initial investigation
After Araceli and Doe C. left the hospital, they went to Araceli’s friend’s house,
where they arrived after midnight. Leslie was calling and texting Araceli, but she did not
want to speak with him. Within one hour of their arrival, Araceli’s friend noticed
Leslie’s car parked in front of the residence, and she called 911. Araceli’s friend said that
everyone was afraid. According to the friend, Araceli was “fairly certain that there were
weapons in the car.” Leslie incessantly called Araceli, Doe C., and Doe M., asking them
to go outside to talk to him.
Araceli testified that she did not tell her friend anything about Leslie having
firearms. Araceli testified that she knew that Leslie had firearms while they were
together, but she also recanted and said that she was “really not sure about guns.” Araceli
explained that Leslie did not have “a complete gun” but instead had parts from which
firearms could be built.
After leaving the hospital, Shuler went to the family’s residence, but Leslie was
not there. Shuler called Araceli and asked where Leslie might be. Araceli told Shuler
that she could hear Leslie’s car approaching her friend’s residence, so Shuler went there.
When Shuler arrived, Leslie was no longer there, but Leslie called Araceli while she was
talking to Shuler. At Shuler’s instruction, Araceli answered the call and asked Leslie to
meet her at the friend’s house, where Shuler waited.
4 When Shuler saw Leslie’s car approaching the house, Shuler activated the
emergency lights on his marked patrol car. Leslie pulled his car alongside the patrol car,
faced in the opposite direction. Shuler instructed Leslie to stop, but Leslie refused.
Leslie “yelled, Fuck you” and fled the scene. Leslie led Shuler on a high-speed chase for
approximately one and one-half miles, until Leslie crashed into the wash alongside the
road. Another deputy then arrived at the scene.
Shuler instructed Leslie to get out of the car, but Leslie refused. Shuler had been
informed that Leslie might have firearms. Leslie attempted to reach over to grab
something in the passenger seat, so Shuler grabbed Leslie’s left hand or wrist. Leslie
continued to refuse to get out of the car and punched another deputy in the face. The
deputies eventually removed Leslie from the car and handcuffed him.
Shuler and another deputy searched Leslie’s car after a tow truck pulled it out of
the wash. They found assault rifle magazines, hundreds of rounds of rifle and pistol
ammunition, the lower frame of a Glock pistol without a serial number, and a loaded
“personally manufactured” “AR style rifle” without a serial number. Shuler explained
that he considered the rifle a “personally manufactured firearm” that was put together
from various procured parts, “where you don’t have to go through a DOJ or licensed
firearm dealer to, you know, make the rifle.” As for the pistol, Shuler explained that the
lower receiver is the frame where the trigger assembly and several other parts are
normally located, but the lower receiver recovered from Leslie’s car did not have a barrel
or a slide.
5 A San Bernardino County supervising deputy district attorney testified that Leslie
was the restrained party named in a 10-year criminal protective order that was issued in
December 2010 and expired in December 2020. She explained that criminal protective
orders are restraining orders “issued in criminal cases to protect a protected party usually
from the defendant in the case.” The protective order provided: “Any person subject to a
protective order is prohibited from owning, possessing, purchasing, or attempting to
purchase, receiving or attempting to receive, or otherwise obtain a firearm.”
III. The charged offenses
In 2023, Leslie was charged by amended information with committing 10 sexual
offenses against Doe C. and Doe V. when they were less than 14 years old. (§§ 288,
subd. (a) [lewd and lascivious act], 269, subds. (a)(1) [forcible rape], (a)(3) [forcible
sodomy], (a)(4) [forcible oral copulation], (a)(5) [forcible sexual penetration]; counts 1-
10.) He also was charged with committing four sexual offenses against Doe V. when she
was a minor more than 14 years old. (§§ 261, subd. (a)(2) [forcible rape], 286, subd.
(c)(2)(C) [forcible sodomy and oral copulation], 289, subd. (a)(1)(C) [forcible sexual
penetration]; counts 11-14.) Six of the offenses contained special allegations that Leslie
committed a qualifying sex offense against multiple victims under the one strike law.
(§ 667.61, subd. (e)(4).)
The information also alleged that Leslie committed the following offenses: (1)
assault on a peace officer (§ 245, subd. (c); count 15), (2) felony evasion of a peace
officer (Veh. Code, § 2800.2, subd. (a); count 16), (3) felony resisting arrest (§ 69; count
6 17), and (4) “unlawfully purchas[ing] and receiv[ing] and attempt[ing] to purchase and
receive a firearm knowing that he was prohibited from doing so by a temporary
restraining order, by an injunction, and by a protective order” in violation of section
29825(a) (count 18).
IV. Testimony of Doe C.
Doe C. was 16 years old when she testified at trial. She testified that Leslie
frequently sexually abused her when she was between 10 and 13 years old. Leslie put his
penis inside her vagina about twice per week during that period. He also licked Doe C.’s
vagina, sucked on her breasts, made her suck on his penis, put his penis inside her anus
once, and tried but failed to put his penis inside her anus on another occasion. After the
first incident of sexual abuse, in which Leslie penetrated Doe C.’s vagina with his penis,
Leslie instructed Doe C. not to tell Araceli or anyone about what happened. He later told
her that she would get in trouble if she told anyone. Doe C. recalled the details of only “a
handful” of incidents.
Doe C. struggled against Leslie on numerous occasions, including the first
incident, but Leslie overpowered her. She stopped resisting altogether when she was
around 12 years old, because she “knew it wasn’t going to stop.” Doe C. feared Leslie
and described him as “very violent.” She explained: Leslie “is way stronger than me
when I was little, like, and just I know his strength because he hit me a lot and stuff,”
“beat [her]” and Doe M. “a lot,” and “suffocated [Doe C.] one time with a pillow” when
she was 12 or 13 years old. Doe C. feared that Leslie would “go after [her] like kill [her]
7 or beat [her] if [she] told anybody.” She also feared for the safety of Marcus and Doe M.,
because Leslie acted violently toward them. Doe C. and Doe V. did not call the police
after talking to each other about the abuse because they were afraid of Leslie.
The last incident of sexual abuse occurred the day before Leslie got arrested. Doe
C. testified that she orally copulated Leslie, and he ejaculated. She initially testified that
Leslie did not vaginally penetrate her during that incident, but she later testified that she
could not recall. Asked whether she recalled telling a law enforcement officer that Leslie
did put his penis inside her vagina during that incident, Doe C. testified, “I think he did.
There’s too many times where it is either he made me suck on it, and then he would make
me ride his penis. And then other times it would just be me sucking on it.”
V. Forensic examination of Doe C.
Laura Hiday is a forensic pediatric nurse practitioner who conducted a sexual
assault exam of Doe C. the day after she told Araceli about the abuse. Hiday explained
that an exam generally includes a comprehensive physical examination, including the
genitals, a history of the reported abuse, photographs, collection of swabs for DNA, and
screenings for sexually transmitted infections and pregnancy. When Hiday testified at
trial in June 2023, she had worked in her position for six and one-half years and
“performed this specific exam with regard to reported sexual assault more than a
thousand times.”
8 Hiday testified that she received a bachelor of science degree in nursing in 2008
and a master’s degree in 2011. She is licensed as a registered nurse and a nurse
practitioner and is certified as a pediatric sexual assault examiner and a pediatric nurse
practitioner. She has received pediatric nurse practitioner training, including formal
training and on-the-job training, and additional training specific to forensics. She has
also “received ongoing peer review and training with mentors in this [pediatric sexual
assault examiner] field, including forensic pediatricians, an additional examiner specific
to this type of case.” Hiday explained that she was part of a peer review group conducted
at a local children’s hospital, in which she would get together with other medically
trained forensic teams, including six doctors, three nurse practitioners, and one nurse.
They would review their cases, including photographs, along with “the current studies
and literature.”
Hiday’s examination of Doe C. resulted in a “normal exam.” Hiday explained that
“a normal exam means that in [Doe C.’s], or this specific medical exam, I did not see any
old injury or new injury. And that when we screened for infection, that as a preliminary
result came back normal.” Hiday opined that the normal exam finding was “consistent
with the history provided, and that it does not negate the possibility of prior sexual
abuse.”
The prosecutor asked Hiday, based on her background, training, and experience in
conducting over 1,000 of the same type of sexual assault exams, how many sexual assault
exams with reports of abuse occurring more than 72 hours before the exam resulted in
9 “so-called normal exams” with no injuries. Hiday answered 97 percent. With reports of
more recent abuse, Hiday noted that “[m]ore than 80 percent still have a normal exam.”
Hiday explained that female genitalia are composed of a specific type of tissue that “heals
very quickly.”
VI. Testimony of Doe V.
Doe V. was 25 years old when she testified at trial. Araceli married Leslie when
Doe V. was eight or nine years old. Doe V. testified that Leslie sexually abused her when
she was between 11 and 16 years old, and she described the abuse in detail. She
described incidents in which he licked her vagina, digitally penetrated her vagina, had her
rub his penis, and had her orally copulate him, which she said happened “a lot.” Leslie
first penetrated her vagina with his penis when she was 12, and he continued to do it until
she was 16. He penetrated her anus with his penis twice, once when she was 13 and once
when she was 15.
Leslie sometimes physically pinned Doe V. down, hit her face, or put his hands
around her neck and applied pressure. She attempted to fight back but never succeeded.
After the first incident of vaginal penetration, Doe V. cried, and Leslie told her
that he would kill her if she told anyone. He thereafter repeatedly threatened that he
would kill her if she told anyone, and he said that he would make it look like she
committed suicide. Doe V. feared Leslie and believed Leslie’s threats, because he
physically abused her every day or every other day by hitting her with a “spiked belt” and
10 his hand. Marcus confirmed that before he moved out of the house in 2012 he saw Leslie
physically hit or hurt Doe V. and Doe C.
When Doe V. was 16 years old, she confronted Leslie about the abuse. He
sexually abused her only one more time after that, when she was 18 years old. She also
moved out of the house when she was 18. She did not tell anyone about the abuse
because she did not think that anyone would believe her. Doe V. said that once when she
was 11 or 12 years old Araceli walked in on her orally copulating Leslie in the living
room. Araceli later told Doe V. that Leslie “was drinking” and “[i]t wasn’t supposed to
be that way.” Doe V. never talked to Araceli about that incident again. At trial, Araceli
denied that she ever saw Leslie sexually abusing any of the children. When Doe V.
moved out, Araceli did not report the abuse because she did not know if “something
could still be done.”
VII. Child sexual abuse accommodation syndrome
At trial, Dr. Veronica Thomas, Ph.D., a clinical and forensic psychologist, testified
for the prosecution. Thomas did not have any information about the case or the parties.
She testified about child sexual abuse accommodation syndrome (CSAAS), which she
described as “a way of explaining abuse that happened between people that know each
other.” She cautioned that CSAAS is not a diagnostic tool used to determine whether a
child has been abused. Thomas opined that “[o]nly ten percent of sexual assaults have
physical findings,” so it is important to consider the context of the relationship between
the victim and the abuser to understand the victim’s disclosure of abuse. CSAAS has five
11 components: (1) secrecy, (2) helplessness, (3) entrapment/accommodation, (4) delayed
and discrepant disclosure, and (5) recantation or retraction.
Regarding delayed disclosure, Thomas explained that a victim might be reluctant
to disclose abuse because “there’s usually no physical evidence of inappropriate sexual
relationship.” She also explained that a victim might first disclose sexual abuse when
talking about other issues, such as physical abuse. In that context, she commented that
“most people who are sexually abused don’t really tell anybody.” The prosecutor asked
Thomas how “violence in the household” would affect delayed and discrepant disclosure,
and Thomas answered in part, “So where there’s violence the likelihood increases that
there’s inappropriate sexual conduct.”
VIII. The verdict and the sentence
The jury convicted Leslie of all of the charged sex offenses and found true all six
of the one strike allegations. The jury also found Leslie guilty of all of the remaining
offenses except assault on a peace officer. The trial court sentenced Leslie to 223 years
four months to life in state prison, composed of consecutive sentences of 15 years to life
for 13 of the sex offense counts, 25 years to life for the remaining sex offense count in
which a multiple-victim one strike allegation was found true, the midterm of two years
for evading law enforcement, eight months (one-third the midterm) for resisting arrest,
and eight months (one-third the midterm) for purchasing or receiving a firearm while
subject to a protective order.
12 DISCUSSION
I. Section 954
Leslie contends that his trial counsel rendered ineffective assistance by not moving
under section 954 to sever the trial on the firearm offense. We disagree, because the
record does not contain a declaration from Leslie’s trial counsel and there is a rational
explanation for the failure to request severance.
To demonstrate ineffective assistance of counsel, Leslie “‘must show that
counsel’s performance was deficient, and that the deficiency prejudiced the defense.’”
(People v. Johnsen (2021) 10 Cal.5th 1116, 1165; Strickland v. Washington (1984) 466
U.S. 668, 687.) “On direct appeal, a finding of deficient performance is warranted where
‘(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation.’” (Johnsen, at p. 1165.) If
“‘counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the
record, we will not find ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions.’” (Ibid.)
“Section 954 allows for the joint trial of ‘two or more different offenses connected
together in their commission . . . or two or more different offenses of the same class of
crimes or offenses.’” (People v. Gomez (2018) 6 Cal.5th 243, 275.) “The law favors the
joinder of counts because such a course of action promotes efficiency.” (People v.
13 Merriman (2014) 60 Cal.4th 1, 37.) A trial court nevertheless “has discretion to order
that properly joined charges be tried separately.” (Ibid.; § 954.)
The record does not contain any information about why Leslie’s counsel did not
move to sever the trial on count 18. Leslie contends that there is no conceivable tactical
reason for the omission because of the significant prejudicial impact that evidence of the
firearm offense would have on the trial of the sex offenses. And he contends that
counsel’s error was prejudicial because the evidence of the firearms and the criminal
protective order tended to show that Leslie was a person with a “bad character for
violence” who was the type of person that surrounded himself with deadly weapons.
The argument fails because Leslie’s trial counsel could have reasonably concluded
that the benefit of introducing the firearm evidence outweighed any possible prejudice.
After Doe C. confronted Leslie about the sexual abuse and Araceli took both Doe C. and
Doe M. to her friend’s home and refused to communicate with Leslie, he fled when
approached by law enforcement. The jury could reasonably infer that Leslie’s flight from
law enforcement was strong evidence of his consciousness of guilt of sexually abusing
Doe C. (People v. Hill (1967) 67 Cal.2d 105, 120 [evidence of flight has no probative
value except that “it may demonstrate consciousness of guilt”].) The jury was instructed
that it could draw that inference: “If the defendant fled or tried to flee after he was
accused of committing the crime, that conduct may show that he was aware of his guilt.”
And such evidence could be particularly significant because there was no physical
evidence corroborating Doe C.’s and Doe V.’s accounts of the sexual abuse.
14 Evidence that Leslie possessed firearms in violation of a protective order,
however, provided the jury with an alternative explanation of why Leslie fled from law
enforcement. That is, the jury could infer that his flight showed consciousness of guilt of
the firearm offense, not of the sexual offenses. Moreover, counsel could have rationally
concluded that introduction of the firearm and protective order evidence was unlikely to
prejudice Leslie, for at least two reasons. First, the record already contained ample
evidence that Leslie was violent. Doe C., Doe V., and Marcus all testified that Leslie
physically abused both Doe C. and Doe V. Doe C. also testified that Leslie physically
abused Marcus and Doe M. Doe V. testified that Leslie repeatedly threatened to kill her.
And Araceli’s friend testified that when Leslie was parked in front of her house, everyone
was afraid because Araceli believed that Leslie had firearms with him. Leslie does not
argue that any of that evidence would have been excluded if the firearm count had been
severed. Second, the evidence concerning the sexual offenses was far more inflammatory
than the evidence concerning the firearm offense.1 For all of these reasons, Leslie’s
1 Leslie’s trial counsel argued in closing that there was no evidence that Leslie was aware that the firearm was in the car when he fled from law enforcement. At oral argument on appeal, Leslie argued that his trial counsel’s closing argument demonstrates that counsel had no tactical reason for not moving to sever and that counsel did not choose not to make that motion on the ground that he believed introduction of the evidence would benefit Leslie. We are not persuaded. First, the decision not to request severance would have been made before trial, when counsel could have reasonably concluded that introduction of the firearm evidence was beneficial for the reasons already explained. Counsel could have later chosen a different strategy after observing how the evidence unfolded at trial. Counsel’s closing argument thus does show that there was no conceivable tactical reason before trial for counsel to have made the decision not to request severance of the firearm offense. Second, trial counsel could have reasonably concluded that introduction of the firearm offense evidence would allow him to proceed [footnote continued on next page]
15 counsel could have rationally concluded that the benefit from introduction of the firearm
and protective order evidence (i.e., providing an alternative explanation for Leslie’s flight
from law enforcement) outweighed the risk of any prejudicial effect.
Because there is at least one conceivable tactical reason why defense counsel did
not move to sever the trial on the firearm count, Leslie has failed to show that counsel’s
omission constituted ineffective assistance. (Johnsen, supra, 10 Cal.5th at p. 1165.)
II. Alleged evidentiary errors
Leslie contends that the trial court abused its discretion by admitting certain
portions of the testimony of both Thomas and Hiday and that the admission prejudiced
him. The arguments lack merit.
A. Standard of review
We generally review for abuse of discretion any ruling on the admissibility of
evidence (People v. Jimenez (2019) 35 Cal.App.5th 373, 389), including “decisions
regarding the admissibility of expert testimony” (People v. Sedano (2023) 88 Cal.App.5th
474, 479 (Sedano)).
B. CSAAS
Leslie contends that the trial court abused its discretion by admitting the following
portions of Thomas’s testimony: (1) CSAAS is “a way of explaining abuse that
happened between people that know each other”; (2) “[M]ost people who are sexually
on alternative theories of the case. If the jury did not believe the primary argument that Leslie did not know that the firearm was in the car, then the jury could reasonably infer that there was an alternate explanation for Leslie’s flight from the scene, namely, his consciousness of guilt of the firearm offense (rather than the sex offenses). 16 abused don’t really tell anybody”; and (3) “So where there’s violence [in the household]
the likelihood increases that there’s inappropriate sexual conduct.” He challenges the
first portion of the testimony on the ground that it goes beyond the scope of permissible
CSAAS testimony. He challenges the remaining two portions on the ground that they
constitute impermissible profile evidence. The arguments have no merit.
Evidence Code section 801 permits expert testimony “[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.” (§ 801, subd. (a).) “Expert testimony on CSAAS has long been held
admissible in California for the limited purposes of dispelling commonly held myths or
misconceptions about child sexual abuse and aiding the jury in ‘evaluating the credibility
of an alleged child victim of sexual abuse.’” (Sedano, supra, 88 Cal.App.5th at p. 479;
People v. Lapenias (2021) 67 Cal.App.5th 162, 175 (Lapenias).) “CSAAS testimony is
permitted ‘“to explain the emotional antecedents of abused children’s seemingly self-
impeaching behavior,”’ such as delayed disclosure of the abuse. [Citations.] An expert’s
explanation of CSAAS ‘is admissible to rehabilitate [a 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.’” (Sedano, at
p. 479.) CSAAS evidence “is not admissible to prove that the complaining witness has in
fact been sexually abused.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)
17 “A profile ordinarily constitutes a set of circumstances—some innocuous—
characteristic of certain crimes or criminals, said to comprise a typical pattern of
behavior. In profile testimony, the expert compares the behavior of the defendant to the
pattern or profile and concludes the defendant fits the profile.” (People v. Prince (2007)
40 Cal.4th 1179, 1226 (Prince); People v. Robbie (2001) 92 Cal.App.4th 1075, 1084
(Robbie).) “Profile evidence is objectionable when it is insufficiently probative because
the conduct or matter that fits the profile is as consistent with innocence as guilt.”
(People v. Smith (2005) 35 Cal.4th 334, 358 (Smith), disapproved on another ground by
People v. Beck and Cruz (2019) 8 Cal.5th 548, 670.) “‘Profile evidence,’ however, is not
a separate ground for excluding evidence; such evidence is inadmissible only if it is either
irrelevant, lacks a foundation, or is more prejudicial than probative.” (Smith, at p. 357.)
Regarding Thomas’s description of CSAAS as “a way of explaining abuse that
happened between people that know each other,” Leslie argues that the testimony
impermissibly “assumed the truth of the accusations by the daughter and step-daughter
against Leslie” and thus “went beyond simply ‘dispelling commonly held myths or
misconceptions about child sexual abuse.’” We disagree.
The challenged testimony merely provides a generalized description of what
CSAAS is. Nothing about the explanation strayed beyond the permissible rehabilitative,
myth-dispelling function of CSAAS testimony. By testifying that CSAAS is a tool for
explaining the conduct of a sexual abuse victim who knows the perpetrator, Thomas did
not in any way suggest that Leslie was guilty of sexually abusing Doe V. and Doe C. On
18 the contrary, Thomas testified that she knew nothing about the case or the parties. She
did not vouch for Doe C.’s or Doe V.’s credibility by defining CSAAS, and she did not
imply that the sexual abuse actually happened because Leslie knew Doe C. and Doe V.
She merely defined CSAAS and provided context to the jury to understand the
circumstances in which it is generally applicable. She did not offer any opinion as to
whether it applied in the present case or whether Doe C. or Doe V. had been sexually
abused. Leslie’s argument challenging the admissibility of this testimony therefore fails.
Leslie’s argument concerning profile evidence fares no better. As the Supreme
Court explained in Smith, evidence is not subject to exclusion merely because it
constitutes profile evidence. (Smith, supra, 35 Cal.4th at p. 357.) Rather, profile
evidence is inadmissible only “if it is either irrelevant, lacks a foundation, or is more
prejudicial than probative.” (Ibid.) Leslie contends in his opening brief that Thomas’s
testimony that “violence occurs where there is no sexual abuse and people who are not
abused also do not tell anybody they were abused” conveyed “improper generalizations
without any foundation” and that were “as consistent with innocence as with guilt.”
Leslie does not provide any legal analysis or citation to authority supporting the
conclusory assertion that the evidence lacked foundation, so the undeveloped argument is
forfeited. (People v. Vaca (2023) 89 Cal.App.5th 1113, 1122, fn. 7.) And Leslie does
not argue that the testimony was irrelevant or more prejudicial than probative. The
argument challenging Thomas’s testimony on the ground that it constitutes impermissible
19 profile evidence consequently fails, because classifying testimony as profile evidence
does not establish its inadmissibility. (Smith, at p. 357.)
In any event, the challenged testimony was not profile evidence. First, in
testifying that most child sexual abuse victims do not report the abuse, Thomas did not
compare any conduct of Leslie’s to a typical pattern or profile of a sexual abuser and
conclude that he fit the profile. (Prince, supra, 40 Cal.4th at p. 1226.) The testimony
had nothing to do with Leslie’s behavior. Thomas was merely describing disclosure
patterns of child sexual abuse victims, including delayed disclosure, which is a central
component of CSAAS. Such evidence “is admissible to rehabilitate [a 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.’” (Sedano, supra, 88 Cal.App.5th at p. 479.)
Second, Thomas’s testimony that the likelihood of inappropriate sexual conduct
increases if there is violence in a household also does not constitute profile evidence.
Thomas was not answering hypothetical questions that incorporated the victims’
description of Leslie’s conduct—that is, the specific ways in which the children alleged
that Leslie inflicted violence on them. (Cf. Robbie, supra, 92 Cal.App.4th at p. 1084.)
Nor did she evaluate Leslie’s specific conduct against a pattern or profile or opine that
Leslie fit it. (Prince, supra, 40 Cal.4th at p. 1226.) Thomas did not relate her testimony
about violence in the household to Leslie or his alleged conduct at all. (Ibid.) Instead,
she provided the jurors with general information about the types of behaviors that often
20 precede or are correlated with childhood sexual abuse and how those behaviors
commonly affect how victims report the abuse. That does not constitute profile evidence.
For these reasons, we conclude that the trial court did not abuse its discretion by
admitting the challenged portions of Thomas’s testimony.
C. Statistical evidence
Leslie argues that the following statistical evidence lacked adequate foundation:
(1) Thomas’s testimony that “only ten percent of sexual assaults have physical findings”;
(2) Thomas’s testimony that “there’s usually no physical evidence of inappropriate sexual
contact”; (3) Hiday’s testimony that 97 percent of sexual assault examinations involving
reports of historical sexual abuse result in normal findings; and (4) Hiday’s testimony
that more than 80 percent of sexual assault examinations involving reports of recent
abuse result in normal findings. The arguments lack merit.
An expert may generally base their opinion on any “matter” known to them,
including otherwise inadmissible hearsay, which may reasonably be relied upon for that
purpose. (Evid. Code, § 801, subd. (b).) “Of course, any material that forms the basis of
an expert’s opinion testimony must be reliable.” (People v. Gardeley (1996) 14 Cal.4th
605, 618, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665,
686, fn. 13.) “[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial
court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter
of a type on which an expert may not reasonably rely, (2) based on reasons unsupported
21 by the material on which the expert relies, or (3) speculative.” (Sargon Enterprises, Inc.
v. University of Southern California (2012) 55 Cal.4th 747, 771-772.)
Hiday’s testimony concerning the frequency of normal findings in sexual assault
examinations was supported by an adequate foundation. Hiday testified that her opinion
was based on her background, training, and experience, which included having performed
over 1,000 sexual assault examinations of the same type that she performed on Doe C.
Hiday was well-qualified as a forensic pediatric nurse practitioner, with years of
experience in her job. In addition, she participated in an ongoing forensic peer review
process in which she and others reviewed other medical professional’s cases and current
studies and literature on the topic. Hiday’s education, training, and experience provide a
more than adequate foundation for her opinion concerning the percentage of sexual
assault exams that produce normal findings. (See, e.g., People v. Gonzalez (2006) 38
Cal.4th 932, 949 [“A gang expert’s overall opinion is typically based on information
drawn from many sources and on years of experience, which in sum may be reliable”].)
Leslie argues that the foundation for the statistics was inadequate because there
was no information about the types of sexual assaults included within the sample, such as
whether the examinations included reports of inappropriate touching, oral copulation,
“violent rape,” or “confirmed assaults.” Leslie does not explain why such information
was necessary or how its absence rendered the testimony unsupported by an adequate
foundation. No such information was necessary to support the admissibility of the
testimony in question. Rather, Leslie’s argument raises issues that his trial counsel could
22 have explored on cross-examination. But those issues do not show that Hiday’s
testimony concerning the percent of sexual assault exams that produce normal findings
lacked foundation. Hiday’s extensive education, training, and experience provided more
than adequate foundation for that testimony.
Relying on People v. Julian (2019) 34 Cal.App.5th 878 and Lapenias, Leslie also
argues that the statistical testimony of both Hiday and Thomas “was analogous to
impermissible statistical testimony that relates ‘either qualitatively, or with specific
statistics or percentages—to the infrequency with which children make false allegations
of sexual abuse.’” We disagree. In Lapenias and Julian, the CSAAS experts testified
that victims rarely make false allegations of child sexual abuse. (Lapenias, supra, 67
Cal.App.5th at p. 178; Julian, at p. 885.) In Julian, the expert testified that false
allegations of child sexual abuse happen “‘about as low as one percent of cases to a high
of maybe 6, 7, 8 percent.’” (Julian, at p. 883, italics omitted.) In Lapenias, the expert
testified that it was “‘rare for kids to make a false claim of sexual abuse.’” (Lapenias, at
p. 177.) The Courts of Appeal concluded that the “‘predictive conclusions’” about
whether “alleged child abuse victims ‘should be believed’” went “beyond the scope of
CSAAS evidence and may confuse the jury,” and the testimony “invited jurors to
presume [the defendants were] guilty based on statistical probabilities, and not decide the
evidence properly introduced in the case.” (Julian, at p. 886; Lapenias, at p. 179.)
Lapenias added that the “testimony—by implication and by inference—violated the
23 general rule that an expert may not give an opinion as to whether another witness is
telling the truth or the defendant is guilty.” (Lapenias, at p. 179.)
The challenged statistics in the present case are unlike those in Julian and
Lapenias. They “are not statistics that improperly bear on the specific complainant’s
veracity, as false allegation statistics necessarily do.” (Sedano, supra, 88 Cal.App.5th at
p. 481.) Hiday’s testimony merely explained that normal sexual assault examination
findings can be consistent with abuse. She did not suggest that the lack of physical
findings means that abuse necessarily or likely occurred. The testimony could assist the
jury in assessing Doe C.’s credibility. Hiday did not convey any “statistics that ‘plac[e] a
thumb on the scale for guilt.’” (Ibid.) Moreover, Thomas’s testimony about the lack of
physical findings explained why child sexual assault victims do not immediately report
the abuse, thus dispelling a common myth and misconception that delayed reporting
tends to undermine credibility. “This is precisely what CSAAS testimony is meant to
do.” (Ibid.)
In sum, Leslie has not articulated a meritorious argument for the exclusion of
Hiday’s testimony concerning the frequency of normal findings in child sexual assault
examinations or Thomas’s testimony about how infrequently there are physical findings
of sexual abuse in child sexual abuse cases.
III. Prosecutorial misconduct
Leslie argues that the prosecutor committed misconduct during closing argument
by improperly attempting to shift the burden of proof by telling the jury “that after all the
24 evidence was presented to you, that presumption [of innocence] is gone.” The argument
is both forfeited and meritless.
A. Closing argument
The trial court instructed the jury as follows on the burden of proof: “A defendant
in a criminal case is presumed to be innocent. This presumption requires that the People
prove each and every essential element of a charge beyond a reasonable doubt.”
The prosecutor remarked during rebuttal: “As we talked about in jury selection,
100 percent, the People have the burden of proof. We talked about that at the beginning
there is a presumption of innocence. Again, this is before you heard all the evidence.
“Way back then when we did jury selection, I told you, everyone agreed because
it’s the truth, that as the defendant was sitting there back then, however many weeks ago
when the trial started, as he was sitting there he was presumed to be innocent.
“Well, a lot has changed since then. You’ve seen and heard the evidence. The
words that [defense counsel] keeps on referring to. Yes, you heard from [Doe V. and
Doe C.] They told you what the defendant did to them.
“And I submit to you that after all the evidence was presented to you, that
presumption is gone. It hasn’t been rebutted. It has been proven beyond a reasonable
doubt that the defendant is guilty of the charges.” (Italics added.)
Defense counsel did not object to the prosecutor’s statements.
25 B. Legal framework
“A defendant is presumed innocent until proven guilty, and the government has
the burden to prove guilt, beyond a reasonable doubt, as to each element of each charged
offense.” (People v. Booker (2011) 51 Cal.4th 141, 185 (Booker).) “The presumption of
innocence is a fundamental component of a fair trial under our system of criminal
justice.” (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159 (Cowan).) “The
presumption of innocence continues during the taking of testimony and during jury
deliberations until the jury reaches a verdict.” (Ibid.)
“‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such “‘unfairness as to make the resulting conviction a
denial of due process.’”’” (People v. Friend (2009) 47 Cal.4th 1, 29.) “‘Under state law,
a prosecutor who uses such methods commits misconduct even when those actions do not
result in a fundamentally unfair trial.’” (Ibid.) “When a claim of misconduct is based on
the prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.”’” (Ibid.) “It is improper for the prosecutor to misstate the law,
and in particular to attempt to reduce the People’s burden of proof beyond a reasonable
doubt.” (Cowan, supra, 8 Cal.App.5th at p. 1159.)
26 C. Analysis
The People contend that Leslie forfeited the argument that the prosecutor
committed misconduct in closing argument, and we agree. In general, a criminal
“‘“defendant may not complain on appeal of prosecutorial misconduct unless in a timely
fashion, and on the same ground, the defendant objected to the action and also requested
that the jury be admonished to disregard the perceived impropriety.”’” (People v.
Centeno (2014) 60 Cal.4th 659, 674.) Defense counsel did not object to the prosecutor’s
argument that the presumption of innocence was “gone” after the evidence was
presented, so the argument is forfeited. (Ibid.) We address the argument in any event,
because Leslie argues that his counsel rendered ineffective assistance by failing to object.
Leslie fails to demonstrate that his trial counsel’s performance fell below an
objective standard of reasonableness. The prosecutor’s argument is similar to an
argument that the Supreme Court has held did not constitute misconduct. (Booker, supra,
51 Cal.4th at p. 183.) In Booker, the prosecutor told the jury: “‘I had the burden of proof
when this trial started to prove the defendant guilty beyond a reasonable doubt, and that is
still my burden. It’s all on the prosecution. I’m the prosecutor. That’s my job. [¶] The
defendant was presumed innocent until the contrary was shown. That presumption
should have left many days ago. He doesn’t stay presumed innocent.’” (Ibid.)
The Supreme Court concluded that the prosecutor’s remarks did not lessen the
People’s burden of proof by implying that the defendant was not entitled to be presumed
innocent. (Booker, supra, 51 Cal.4th at p. 185.) In reaching that conclusion, the court
27 adopted the following reasoning from People v. Goldberg (1984) 161 Cal.App.3d 170,
189-190: “‘Once an otherwise properly instructed jury is told that the presumption of
innocence obtains until guilt is proven, it is obvious that the jury cannot find the
defendant guilty until and unless they, as the fact-finding body, conclude guilt was
proven beyond a reasonable doubt.’” (Booker, at p. 185.) Booker added that although
the Supreme Court does “not condone statements that appear to shift the burden of proof
onto a defendant (as a defendant is entitled to the presumption of innocence until the
contrary is found by the jury), the prosecutor here simply argued the jury should return a
verdict in his favor based on the state of the evidence presented.” (Ibid.)
The prosecutor’s argument in the present case, “that after all the evidence was
presented to you, that presumption [of innocence] is gone,” is the same type of argument
approved in Booker. As in Booker, the prosecutor tied his argument that the presumption
of innocence was “gone” to the state of the evidence, claiming that the presumption had
been overcome by the evidence presented at trial. (Booker, supra, 51 Cal.4th at p. 185.)
The prosecutor thus argued that the People carried their burden of proving Leslie’s guilt
beyond a reasonable doubt by presenting evidence that overcame the presumption of
innocence. (People v. Panah (2005) 35 Cal.4th 395, 463; People v. Romo (2016) 248
Cal.App.4th 682, 693.) That “amounted to proper argument that the evidence proved
[Leslie’s] guilt beyond a reasonable doubt.” (People v. Jones (2024) 106 Cal.App.5th
1085, 1101.)
28 Leslie argues that the prosecutor’s remarks are more akin to those in Cowan, in
which the appellate court concluded that a prosecutor’s comments during closing
argument constituted misconduct as “an unfair attempt to lighten the prosecution’s
burden of proof.” (Cowan, supra, 8 Cal.App.5th at p. 1160.) In Cowan, the prosecutor
“told the jury that the presumption of innocence is in place ‘only when the charges are
read’ and that the ‘presumption is gone’ thereafter.” (Id. at p. 1159.) Cowan reasoned
that the prosecutor’s statements were dissimilar to those in Booker, because the
prosecutor’s argument was not tied to the evidence that had been presented but instead
told the jury that “the presumption of innocence disappears” “even before the evidence is
received.” (Ibid.)
The prosecutor’s remarks in the present case are not like those in Cowan. The
prosecutor in this case did not suggest that the presumption of innocence ended before the
evidence was presented but rather told the jury given all of the evidence admitted at trial,
the presumption was gone, i.e., it had been overcome.
For these reasons, we conclude that the prosecutor’s argument concerning the
presumption of innocence did not constitute misconduct. Leslie’s counsel therefore did
not perform deficiently by failing to object. (People v. Ochoa (1998) 19 Cal.4th 353,
463.)
29 IV. The firearm count
A. Instructional error
Section 29825(a) provides that “[a] person who purchases or receives, or attempts
to purchase or receive, a firearm knowing that the person is prohibited from doing so” by
certain types of court orders “is guilty of a public offense” punishable by imprisonment in
county jail or state prison. Subdivision (b) of section 29825 prohibits “own[ing] or
possess[ing] a firearm” while knowing that it is prohibited by the same orders listed in
section 29825(a).
The amended information alleged that Leslie violated section 29825(a) as a
prohibited person who had purchased or received a firearm. The trial court instructed the
jury orally and in writing with CALCRIM No. 2512 that Leslie was charged in count 18
“with unlawfully possessing a firearm in violation of Penal Code section 29825.” The
instruction provided that in order to find Leslie guilty of the offense the jury had to find
that Leslie “possessed a firearm” and “knew that he possessed the firearm.” In the
verdict form, the jury found Leslie “guilty of the crime of P.C. § 29825(a), purchase or
receive firearm with temp restraining order, protective order or injunction, as charged in
Court 18.” (Capitalization omitted.)
Leslie contends that his conviction on count 18 must be reversed because the trial
court prejudicially erred by not instructing the jury on the elements of purchasing or
receiving a firearm as a prohibited person under section 29825(a). The People concede
the error and that it was prejudicial, and we agree. The trial court erred by instructing the
30 jury on the elements of a different offense, namely, subdivision (b) of section 29825. The
error is not harmless. We cannot conclude beyond a reasonable doubt that the jury would
have convicted Leslie of the charged offense under section 29825(a) if it had been
properly instructed. (People v. Hayes (2009) 171 Cal.App.4th 549, 560 [“An instruction
that omits or removes an element of an offense from consideration by the jury may be
harmless if the error is harmless beyond a reasonable doubt”]; Chapman v. California
(1967) 386 U.S. 18, 24.) We accordingly reverse Leslie’s conviction on count 18.
B. Sufficiency of the evidence
Leslie also contends that there was insufficient evidence to support a conviction
under section 29825(a) for the purchase or receipt of a firearm while subject to a
protective order. We agree. We address Leslie’s challenge to “the sufficiency of the
evidence on this count, because the double jeopardy clause precludes retrial if the
evidence is insufficient.” (People v. Grant (2003) 113 Cal.App.4th 579, 584.)
For the jury to convict Leslie under section 29825(a), it had to find beyond a
reasonable doubt that: (1) Leslie purchased or received a firearm, (2) Leslie knew he
purchased or received a firearm, (3) a court order prohibited him from purchasing or
receiving firearms, and (4) Leslie knew of the court’s order. (CALCRIM No. 2512.)
“In reviewing a sufficiency of the evidence claim, our role is limited. We review
the entire record to determine whether it discloses reasonable and credible evidence to
allow a rational trier of fact to determine guilt beyond a reasonable doubt.” (People v.
Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11.)
31 The record contains no evidence that Leslie either purchased or received any
firearm when Leslie was prohibited from doing so by a protective order. Neither Shuler
nor Araceli testified about when Leslie either purchased or received either of the firearms
found in his vehicle. But section 29825(a) requires that the defendant purchase or receive
the firearm while knowing that doing so is prohibited by a court order. Given that there
was no evidence having any tendency to show when Leslie purchased or received either
firearm, the jury could not have reasonably excluded the possibility that he purchased or
received them before the protective order was entered.
For the foregoing reasons, there was insufficient evidence to support a conviction
under section 29825(a). Leslie therefore cannot be retried on that count.
V. Cumulative error
Leslie also argues that the cumulative effect of the alleged errors deprived him of
his constitutional right to a fair trial. It is possible for several individually harmless errors
to constitute prejudicial error when considered in the aggregate. (In re Avena (1996) 12
Cal.4th 694, 772, fn. 32.) We have identified only one error, however, so the doctrine of
cumulative prejudice does not apply.
DISPOSITION
The conviction on count 18 is reversed. In all other respects, the judgment is
affirmed. The trial court is directed to (1) prepare an amended sentencing minute order
and amended abstract of judgment reflecting the reversal of the conviction on count 18
32 and (2) transmit a copy of the amended abstract of judgment to the California Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
McKINSTER Acting P. J.
MILLER J.