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The People v. Robert Gucciardo

March 1, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT GUCCIARDO, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F05324)

The opinion of the court was delivered by: Raye , P. J.

P. v. Gucciardo

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Robert Gucciardo sexually abused his adopted daughter from ages 11 to 18. An information charged him with nine counts of committing lewd acts with a child under 14, four counts of committing lewd acts with a child of 14 or 15, and two counts of unlawful intercourse with a minor. A jury found defendant guilty on all counts, and the court sentenced him to 24 years 8 months in state prison. Defendant appeals, contending insufficiency of the evidence, improper admission of expert testimony, ineffective assistance of counsel, prosecutorial misconduct, and the court erred in denying defendant probation. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999 defendant began dating the victim's mother, and eventually the pair married. The victim, her mother, and her younger brother moved into defendant's home. Not long afterward, defendant began abusing the 11-year-old victim. The abuse continued until the victim was 19 and reported it to law enforcement.

An information charged defendant with nine counts of committing lewd acts with a child under 14 years of age (counts one through nine), four counts of committing lewd acts with a child of 14 or 15 years of age (counts ten through thirteen), and two counts of unlawful intercourse with a minor (counts thirteen through fifteen). (Pen. Code, §§ 288, subds. (a), (c)(1), 261.5, subd. (c).)*fn1 A jury trial followed.

Defendant's Relationship with the Victim

When the victim was 11, defendant touched her breasts while rubbing ointment on her chest. He later told her the touching was intentional and asked her how she felt about it. Three weeks later, the victim touched defendant's penis when he asked her to. Around the same time, defendant rubbed her vagina with his hand.

The victim was happy in her new home. Defendant took her and her brother to an amusement park and museums, and bought clothes for them. Defendant also paid for ballet and piano lessons for the victim.

Beginning when the victim was 12, defendant had her touch his penis with her hand. Defendant had sexual intercourse with her when she was 12. The victim provided details of the incident, including the location and her position. Defendant also coached her on how to perform various sexual acts.

Following these incidents, defendant began coming into the victim's room three times a week; on most of these occasions, defendant would have sexual intercourse with her. Defendant and the victim would orally copulate one another. Defendant occasionally abstained from sexual intercourse, but never for more than two weeks.

When the victim was 13, defendant and her mother separated and ultimately divorced. The victim's mother moved out of the home; the victim and her brother remained with defendant.

The victim wanted to stay with defendant because he was a good father and she loved him. Defendant also told the victim her mother was unfit. Throughout the legal proceedings surrounding the guardianship, child custody, and adoption, the victim never revealed the ongoing sexual abuse, though she spoke to a court-appointed therapist and a family therapist. Even when specifically questioned about abuse, she lied and said there were no problems. She testified defendant told her if she said anything, the authorities would take her away and no one would take care of her.

When the victim was 14, she began sleeping in defendant's bedroom. Defendant began to attempt anal intercourse with her, trying on several occasions. Defendant put his finger in her anus four times.*fn2

The sex acts became less frequent when the victim turned 15. However, the type of sex acts, including oral sex and intercourse, remained constant.

When the victim turned 16, defendant abused her once or twice a week. The frequency lessened to once a week when she turned 17. The frequency of the sexual acts was also affected by defendant's heart attack and knee surgeries. The frequency of abuse lessened further when the victim turned 18, to once a month or once every three months.

During these years, defendant had the victim watch sex videos and played them during sexual activity. Defendant also encouraged her to take nude photos of herself and bought her lingerie. The videos, photos, and lingerie were entered into evidence.

At age 19, the victim told defendant she had had sex with her boyfriend. Defendant threatened to kill himself and the victim, and she moved out of defendant's house that night.

The Victim Reports the Abuse--The Pretext Call

In 2008 the victim reported the sexual abuse to police. Law enforcement arranged for her to make a pretext call to defendant.

The transcript of the call omits part of the conversation between the victim and defendant. The victim could not recall the omitted portion but speculated they merely exchanged greetings. The officer who recorded the call testified the gap consisted of only five seconds and the transcript was accurate. The jury heard the taped conversation.

During the call, defendant admitted having sex with the victim. He also admitted having sex with her over a long period of time. Defendant claimed he was not having sex with her anymore.

The victim said she was not comfortable having sex with defendant anymore. Defendant responded: "That's fine. The sex has never been an issue. And you know that." The victim later asked, "But like you used to enjoy having sex with me, right?" Defendant replied, "Sure."

Defendant and the victim discussed what they would have done had she become pregnant. Defendant told her if she became pregnant they did not have to tell anyone he was the father.

The victim said she might want to tell others about their relationship. Defendant told her it was not a good idea, because people would not understand.

The victim testified defendant sometimes had a hard time understanding things that are said during phone conversations. She also testified she saw no scarring on defendant's genitalia. She admitted perjuring herself with respect to the location of a meeting she had had with the prosecutor.

Expert Testimony

Dr. Anthony Urquiza testified about child sexual abuse accommodation syndrome. Urquiza admitted he was not familiar with the victim, had not read documents related to the case, and was not offering an opinion as to whether the victim was, in fact, molested.

Urquiza testified victims often delay disclosing abuse when the abuser is someone with whom they have a long-term relationship. He also stated that approximately one-third of abuse victims do not disclose the abuse until they are over 18. Some victims conceal the abuse even when asked directly about it.

The syndrome consists of the following components: (1) secrecy--generally child victims do not immediately disclose the abuse; (2) helplessness--abusers often have control over the child; (3) entrapment and accommodation--the victim feels trapped and copes by compartmentalizing feelings about the abuse; (4) delayed and unconvincing disclosure; and (5) rejection, a retraction of truthful abuse allegations.

Urquiza acknowledged that research reveals some children do make false allegations. During cross-examination, defense counsel posed a hypothetical based on the facts at trial. Defense counsel asked Urquiza to assume there was regular contact between a child and a therapist for two-and-a-half years; the therapist gave assurances of confidentiality and then asked the child if anything was happening. Would that afford an opportunity for the child to disclose abuse? Urquiza responded that although the situation might be comfortable, it was not confidential because therapists are required to report abuse to law enforcement. A therapist would also have to disclose this requirement to a patient.

Urquiza testified abuse distorts the victim's world view. This distortion can cause problems later in life with relationships, mental health issues, and drug or alcohol abuse.

Defense Case

Defendant presented testimony by the victim's brother, defendant's biological daughter, a woman who had a relationship with defendant, defendant's ex-wife, and a urologist. Defendant also testified in his own behalf.

The Victim's Brother

The victim's 16-year-old brother testified he never saw the victim sleep anywhere but in her own bed. According to the brother, he never saw any inappropriate behavior between defendant and his sister.

Prior to defendant's arrest, the victim moved out of the house and into an apartment with her boyfriend. When her brother was 15, the victim offered him marijuana. When the victim's brother told defendant about this, he became angry and confronted the victim and her boyfriend. The boyfriend pushed defendant in the chest. After moving in with her boyfriend, the victim developed a bad temper and began speaking very rapidly. She constantly talked about her boyfriend.

One day the victim and her boyfriend came to her brother's school. According to the brother, "She basically told me that my father had been raping her like since we met him . . . ." The victim's brother said something in response and her boyfriend grabbed him by the shoulder, threatened him, and told him to support his sister.

The victim's brother testified that she wanted him to lie to support her abuse allegations against defendant. He also questioned her truthfulness. He never ...


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