People v. Bedolla-Matias

THE PEOPLE, Plaintiff and Respondent, v. PABLO BEDOLLA-MATIAS, Defendant and Appellant.

H035711

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Dated: April 27, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CC939831)

I. STATEMENT OF THE CASE

A jury convicted defendant Pablo Bedolla-Matias of four counts of aggravated lewd conduct with a minor under the age of 14 and also found that he committed those offenses against two victims: A. and L. (Pen. Code, §§ 288, subd. (b)(1), 667.61, subds. (b) & (e).)¹ The court sentenced defendant to an indeterminate prison term of 60 years to life.

On appeal from the judgment, defendant claims there was insufficient evidence to support two convictions for aggravated lewd conduct against A. He claims the court erred in admitting (1) the victims' preliminary hearing testimony, (2) evidence of A.'s demeanor at the preliminary hearing, (3) evidence that the magistrate found both A. and L. competent to testify at that hearing, and (4) expert testimony concerning child sexualabuse accommodation syndrome (CSAAS). He further claims the court erred in instructing jurors that (1) they could consider the victims' testimony as propensity evidence, (2) they could convict him for aggravated lewd conduct based on findings of duress, and (3) they could consider the CSAAS testimony in determining whether he committed the charged offenses.

We affirm the judgment.

II. THE EVIDENCE

A. The Prosecution's Case

A. and her cousin L., the victims, were seven years old when they testified.² They lived in the same house with several relatives, including J., who is A.'s sister and L.'s cousin. At the time the offenses occurred, defendant also lived at the house.

A. testified that defendant touched her private parts on more than one occasion and told her not to tell her mother. She was scared. One time when she was in the kitchen, he touched her crotch over her shorts. On another occasion, she was eating soup in the kitchen, and defendant "cupp[ed]" her crotch with his hand. She was afraid and told him to stop, but he did not. She screamed for L. to come in so that he would stop. She said he would stop touching her whenever someone else entered the room.

A. testified that defendant never touched her skin, penetrated her with his finger, or kissed her on the mouth or breasts. Although she initially said that she never told anyone that he had kissed her, she corrected herself and said that she told J., who then reported it to A.'s mother. She said she once tried to tell her aunt, but she was watching TV and did not pay any attention to her.

At the preliminary hearing, A. testified that defendant touched her private parts around five times directly on her skin. He also kissed her on the neck. She said he touched her when she was in the kitchen. She said that he did not penetrate her with hisfinger. She asked him to stop, but he would not and told her not to tell her mother. She also said she was afraid of him. She said that there were times when defendant was molesting her that she wanted to scream, but she denied that he ever put his hand over her mouth and denied telling anyone that he had. She said she told her sister J. and her cousin L. about what defendant was doing.

L. testified that defendant touched her private parts directly on her skin under her underwear more than once, and she did not like it. She told him to stop, but he would not do so and told her not to tell anyone. She further testified that on one occasion, defendant was outside her bedroom window at night and asked her to touch his private part. She did not do so and could not remember if she saw it. On another occasion, she went into the living room, and defendant offered her two dollars, but she refused. She could not recall if he tried to touch her.

At the preliminary hearing, L. testified that defendant touched her crotch area at least five and maybe nine times. She said she was scared and told him to stop but he would not. She said he also touched her neck with his hand. She said she told her aunt and uncle.

J. was 14 when she testified. She said that on April 7, 2009, a male cousin told her that defendant had tried to grab A. When J. asked A., A. was upset and afraid to talk about it because defendant had told her not to tell anyone. She said that defendant once gave her a dollar not to tell anyone. Nevertheless, A. disclosed that defendant had touched her and L. in places she did not like. He touched her private part and put his finger inside which hurt and made her private part "rosada," which, J. explained, meant red and raw. He also kissed her neck. A. told J. not to tell their mother, but J. did, and the police were called.

On April 7, 2009, Officers Yvonne Dela Cruz and Jose Uribe of the San Jose Police Department visited the victims' home. Officers De La Cruz interviewed A.; Officer Uribe interviewed L.³

At that time, A. said that defendant had touched her private part outside her clothing four times and sometimes kissed her on the neck and mouth.⁴ Defendant told her not to tell her mother. L. said that one time, defendant was outside her window urinating, opened the window, called her, touched her breasts and crotch, and pulled her head to make her look at his penis. On another occasion, he kissed her neck and gave her a dollar not to tell anyone.

Officer Patricia Jaime with the Sexual Assault Unit of the San Jose Police Department conducted follow-up, recorded interviews with A. and L. on April 9, 2009, which were played for the jury.

A. said that defendant touched her private parts on four different occasions and also kissed her on the mouth and neck. The last time it happened, she asked him to stop but he kept on kissing her, and when she tried to call out to her aunt, he covered her mouth with his hand. When A.'s aunt came into the room, defendant hid in the closet.⁵

A. said that on another occasion, his touching caused her to bleed from her "pee-pee" because he "squished" her. She explained that defendant pulled her underwear aside, put his hand there, and also touched her there with his fingernails, which hurt. This caused her to bleed and made her sad and worried. She said he penetrated her threetimes. She also said he tried to kiss her vagina under clothing about five times.⁶ She recounted how once he touched her in the kitchen when she was eating soup. Another time, he took off her shirt and tried to kiss her breasts, but she pushed him away.

L. said that defendant was always grabbing her and would kiss her. She said he touched her under her underwear five to 10 times and penetrated her vagina with his finger, which felt bad and hurt. He told her he would continue to do this if she told anyone about it. He once grabbed her hand and forced her to touch his penis under his underwear. He also kissed her on the neck.

Mary Ritter, a physician's assistant at the Center for Child Protection at the Santa Clara Valley Medical Center, examined A. and L. A. told her that there had been hand and oral vaginal contact but no bleeding. A. also said that defendant had kissed her mouth, and she had seen his penis.⁷ Ms. Ritter found no evidence of penetrating trauma and a normal looking hymen, but she noticed some redness in A.'s genital area, which, however, could have had a variety of causes.

L. told Ms. Ritter that defendant had touched her vagina with his hand, but she denied any pain. She also said she had seen defendant's penis and touched it.⁸ Ms. Ritter found no evidence of penetrating trauma. She observed a mound on L.'s hymen that could be a benign, normal finding or the remnant of a prior sexual assault. However, Ms. Ritter could not determine the actual cause or whether there had been an assault.

Dr. David Kerns, an expert in the area of child sexual abuse, reviewed Ms. Ritter's findings and agreed with them. He said that the majority of prepubescent girls who have been sexually abused have "normal" examination results.

Carl Lewis testified as an expert on CSAAS. He explained that the way in which a child discloses abuse or behaves when being abused can conflict with common, preconceived notions of how a child might or should react. CSAAS describes a variety of factors that may exist when a disclosure is made. It can provide background information and explains that there is no single thing to look for in determining whether a child is being or has been abused. However, CSAAS is not a science or a measure of whether a child is telling the truth about being abused.

That said, Mr. Lewis described five categories of CSAAS, that may or may not be present in a case. The first category is secrecy. An abuser often takes advantage of the fact that abusive conduct usually occurs in a private setting and enforces this secrecy by telling the child not to say anything and perhaps threatening consequences. The second category is helplessness that arises from the child's dependence on adults. As a result, disclosure tends to involve a process rather than a one-time report. Helplessness can be reinforced when there is an inadequate response to an attempt to disclose. The third category is entrapment and accommodation. A child may feel trapped by circumstances and accommodate the abuse by dissociating or acting as if nothing were wrong. The fourth category is delayed, conflicted, or unconvincing disclosure. A child often delays reporting abuse, and most times it is not disclosed until some time after it has occurred. Conflicted disclosure describes the process a child goes through in deciding whether to report abuse and also the fact that during that process, the child may say different...