(Super. Ct. No. 10F00208)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Shawn Albert Brusacoram guilty of two counts of lewd and lascivious acts with a child under the age of 14 years. The trial court found he had a prior conviction of the same offense, within the meaning of the one strike law and the habitual sexual offender law. Defendant was sentenced to state prison for two consecutive terms of 25 years to life. (See People v. Murphy (2001) 25 Cal.4th 136, 149-154.)
On appeal, defendant contends: (1) admission of his prior sexual offense pursuant to Evidence Code*fn1 sections 1101, subdivision (b), and 1108 was an abuse of discretion; and (2) the prosecutor committed several instances of prejudicial misconduct. We affirm.
K. Doe was seven years old when she testified in April 2011. From the time she was 18 months old, she lived with her paternal grandmother and stepgrandfather in Clovis. Her mother, Kari C., lived in Sacramento, and K. visited her there once or twice a month.
Kari had been a childhood friend and foster sister of Rene S. As adults, the duo renewed their friendship. By that time, Rene S. was married to defendant and the couple had two children, C. and G.
When K. visited her mother, they would go to Rene's residence and K. formed a friendship with C. K. sometimes was alone with defendant, whom she called "Uncle Shawn."
More than 10 times, defendant had K. sit on his lap and used his hand to touch her where she went "pee pee." He would put his hand inside her clothes and touch her on her skin. One touching occurred while eight-year-old C. was present on the couch, either sleeping or pretending to be asleep. The last touching occurred when K. was six or seven years old. K. told him to stop doing it, and he stopped. But he told her, "Don't tell anybody or I'll go to jail."
In 2009, K. started exhibiting unusual behaviors. She had trouble controlling urine during the day and at night. She went from being a happy, average kid to being angry all the time. She started being verbally abusive to her many animals. She did not want to sleep alone, and she had nightmares that caused her to cry and scream in her sleep. On one occasion after she had bathed, her stepgrandfather saw her naked on the floor with the family dog between her legs licking K.'s vagina. K. explained that "the dog wanted to do it." In October 2009, K. told her stepgrandfather that she had a secret she could not tell anyone, not even her mother. When he asked her why not, she said it was "Because my cousin C.'s father will lose his job and go to jail." K. started crying and told her stepgrandfather not to tell her grandmother. K. was hysterical and ran out into the darkness. Her grandmother chased her and brought her back to the house. K. said she could not reveal her secret because "Uncle Shawn would get in trouble" and "he knew where she lived."
The next day K.'s stepgrandfather, a retired Fresno police officer, obtained a referral to a local officer who could speak with K. On November 4, 2009, K. and her grandparents met with Clovis Police Detective John Willow at a restaurant. After they conversed together for a few minutes, Detective Willow asked to speak privately with K. When they were alone, K. told him she had a "bad secret" and, if she told anyone, "her Uncle Shawn would go to jail and be arrested." She said the secret would occur while they were sitting on the living room couch or chair. She explained that, most of the time, they were alone except when C. was in the room sleeping or pretending to be asleep. Following this disclosure, K. declined to reveal further details and Detective Willow did not press her for more information. However, K. agreed to discuss her secret with "a friend of" the detective at a Multi-Disciplinary Interview Center (MDIC).
Approximately 90 minutes into the MDIC interview, K. began discussing details of her secret. K. was very reluctant, although she quickly disclosed there was a secret and she was not supposed to tell the secret. On an anatomical drawing, K. marked the location where defendant had touched her. The jury watched a videotape of the interview.
Immediately after the MDIC interview, K. told her grandparents that "Shawn put his hands in my pants and tickled my po-po, and that's all I'm going to say." Detective Willow advised the grandparents to keep K. under their control and not allow her to travel to Sacramento. The grandparents applied for guardianship of K.
Following the interview, Detective Willow asked K.'s grandmother who "Shawn" was. The grandmother knew Shawn was Rene's husband, but she did not know the couple's last name. The grandmother telephoned Rene, obtained their name and address, and then forwarded the information to Detective Willow who determined defendant was a sex registrant. The grandparents never told K. about defendant's prior conviction for lewd and lascivious conduct. Before the investigation was transferred to Sacramento, K. confirmed defendant's identity by selecting his photograph from an array.
Rene admitted that defendant had been left alone with her two children and K. on occasions when K. had visited between 2006 and 2009. Rene knew her husband was a registered sex offender.
Defendant's adult half sister, S. J., testified that defendant had molested her when she was a child. She was six years old when the molestations started and nine years old when they ended. The molestation included defendant putting his hands down S. J.'s pants and on her vagina.
Following S. J.'s testimony, the parties stipulated that defendant, who was born in 1975, had been convicted in January 1994 of lewd and lascivious acts with S. J. and with defendant's brother, D. J., starting when S .J. was six years old and D. J. was seven years old. The conduct stopped when law enforcement agencies were notified.
Defendant presented expert testimony from William O'Donohue on the subject of interview suggestibility. He had never found that an interview had been done perfectly.
C. testified for the defense that she had never seen defendant do anything bad to K., and K. never told her any "bad secrets." K. came over about once a month. There were times when defendant would ...