Super. Ct. No. C569851) Trial court: Alameda County Superior Court Preliminary hearing judge: Hon. Armando G. Cuellar, Jr.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
Appellant Bejan Esmaili was charged with continuous sexual abuse of a child in violation of section 288.5.*fn1 A preliminary hearing was held at which the magistrate, citing inconsistencies in the victim's testimony, found the evidence insufficient to bind appellant over for trial and dismissed the complaint. Appellant petitioned the court for a determination of factual innocence under section 851.8, subdivision (c). After the court denied the petition, appellant filed an unsuccessful motion for reconsideration, arguing that principles of collateral estoppel required the court to find him factually innocent. We affirm the orders denying the petition under section 851.8 and the motion for reconsideration.
BACKGROUND AND PROCEDURAL HISTORY
A. Evidence at the Preliminary Hearing
The prosecution filed a felony complaint charging appellant with a single violation of section 288.5, subdivision (a), which provides, "Any person who . . . has recurring access to [a] child, who over a period of time, not less than three months in duration, engages in . . . three or more acts of lewd or lascivious conduct as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years." Jane Doe, the alleged victim, was the primary witness at the preliminary hearing on this charge, which was held over several sessions in 2011.
Doe was born in January 1996 and was 15 years old when she testified in this case. When she was in the second grade, her family moved next door to appellant and his family, and Doe often went over to appellant's house to play with his two children. Doe testified that appellant touched her inappropriately on four occasions when his wife was not home.
According to Doe, the first inappropriate touching occurred during the summer of 2004 between her second and third grade year, meaning that Doe would have been eight years old. She and appellant were sitting on the couch in appellant's living room watching a movie while his daughter sat on the floor and his son sat on a chair. Doe complained about her back hurting, because she had fallen against a railing earlier and had hit her shoulder. Appellant offered to give her a massage and Doe agreed. After awhile, however, appellant lifted her shirt and eventually moved his hand to her stomach and toward her "breasts." Doe thought this was "weird" and moved his hands away. She moved away from him and watched the rest of the movie.
The second incident described by Doe also occurred during the summer of 2004. Doe claimed that while watching a movie with appellant and his children, he offered to give her a massage and moved Doe to his lap when she agreed. Appellant massaged her lower back and stomach before moving on to her "breasts," but Doe would not allow appellant to put his hands in her pants. Doe left the room saying she had to get a glass of water and sat down with the other children upon her return to the room.
Doe testified to a third touching that probably occurred the following summer. She was watching a movie with appellant and his children when he offered her a massage and she agreed. At some point during the massage appellant moved his hands near her "breasts" and went down her skirt, hooking his finger into the top of her underwear. Doe got up to go to the bathroom and then returned to watch the movie. She felt that appellant had an erection when he was touching her.
The fourth touching described by Doe occurred during the summer following the third incident. She was again at appellant's home watching a movie with him and his children when appellant picked her up and moved her to his lap. He started to rub her lower back, then moved his hands to her stomach and "breasts" and under her skirt. He also placed his whole hand inside her underwear and touched her inner thigh. Doe claimed that she felt an erection during this incident as well.
Doe did not tell anyone about these incidents for several years, but continued to have contact with appellant and his family. She testified that she realized what had happened after watching a couple of episodes of the television show "Law & Order." In 2010, when she was 14, she told her good friend S.H. that she had been molested by a neighbor. S.H. encouraged Doe to tell someone, and Doe spoke to her therapist. Detective Bettencourt of the Albany Police Department interviewed Doe. Doe also spoke to social worker Erin Harper of CALICO (the Child Abuse Listening Interviewing and Coordination Center).
Doe did not disclose certain details to Detective Bettencourt or Erin Harper that she testified to at the preliminary hearing, including her claim that appellant had erections during two of the incidents. Doe acknowledged that the prosecutor in the case was the first person she had told about the erections. Doe initially told the prosecutor that she felt erections on all four occasions rather than on the two she testified to at the preliminary hearing.
S.H. testified that when Doe told her about the molestations, she said it had happened twice, that on the first occasion appellant had touched her all over, and that on the second occasion he had told her to go into his room and sit down on his bed.
The prosecution played tape recordings of two pretext telephone calls that Doe made to appellant at Detective Bettencourt's direction. During the calls, Doe repeatedly confronted appellant about touching her inappropriately when she was younger, and he repeatedly claimed not to know what she was talking about. He apologized to her many times for making her feel uncomfortable, but said he never did anything intentionally. At one point when Doe suggested she might go to the police, appellant offered to use his contacts to help her get into college. When Doe asked him during the second pretext call what he would do if someone touched his daughter, he said he would probably tell her to "focus on what's important in moving forward what's going to be positive for ...