Super. Ct. No. 05-111195-4) Trial Court: Contra Costa County Superior Court Trial Judge: Honorable John Laettner
The opinion of the court was delivered by: Siggins, J.
CERTIFIED FOR PUBLICATION
The People appeal from an order dismissing charges brought against defendant Baldomero Gonzalez Gutierrez. The appeal asks us to depart from longstanding precedents--Stanton v. Superior Court (1987) 193 Cal.App.3d 265 (Stanton), Currie v. Superior Court (1991) 230 Cal.App.3d 83 (Currie), and Merrill v. Superior Court (1994) 27 Cal.App.4th 1586 (Merrill)--that hold the prosecution's duty to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady) applies to preliminary hearings. The principal contention is that over 20 years ago the passage of Proposition 115 "legislatively overruled" these precedents. However, neither Proposition 115 nor the cases and commentaries that have construed it support the People's position. Izazaga v. Superior Court (1991) 54 Cal.3d 356 (Izazaga) held that Proposition 115 could not limit a defendant's due process rights under Brady, and People v. Jenkins (2000) 22 Cal.4th 900 (Jenkins) suggests that Brady applies in connection with preliminary hearings. The People's other arguments against Brady's application at a preliminary hearing also lack merit. We therefore affirm.
On May 30, 2002, a complaint was filed charging Gutierrez with two counts of lewd acts with a child under age 14 (Pen. Code, § 288, subd. (a)),*fn1 one against Jane Doe One (JD1) and the other against Jane Doe Two (JD2). An arrest warrant was issued on May 30, 2002, but Gutierrez was not arrested until May 27, 2011.
At the preliminary hearing in July 2011, a Concord police detective testified that he was dispatched to an elementary school on November 5, 2001, to investigate a report of child abuse. At the time, JD1 and JD2 were 11-year old foster children who lived with Gutierrez, his wife and stepdaughter.
JD1 told the officer that she and Gutierrez were alone in the home the previous day when he asked her to come into his bedroom. He pulled her onto the bed and tried to kiss her on the lips but she turned away. He then put his hand on her vaginal area over her pants. She got up quickly and went outside the house. Gutierrez followed and warned her not to say anything or they would both get in trouble. That night JD1 asked JD2 if something similar had happened to her.
After speaking with JD1, the officer went to the home and spoke with JD2 who said that, about a year earlier, Gutierrez put his arm over her shoulder in a friendly way and then rubbed her buttocks over her clothes. She stepped away because she was uncomfortable and frightened. Gutierrez told her not to say anything, and she had been too embarrassed and afraid to report the incident.
The other witness at the hearing was a senior inspector with the district attorney's office who obtained a statement from Gutierrez's stepdaughter that JD1 and JD2 lived with her and Gutierrez in November 2001.
Gutierrez argued unsuccessfully that he should not be held to answer on the charges, stating, among other things, that investigators for the parties had not been able to locate JD1 or JD2.
After the preliminary hearing, the defense obtained from juvenile court police reports showing that JD1 had made accusations of molestations in 1996 and 1999 that were determined to have been unfounded.
In 1996, JD1 told a Pleasant Hill police sergeant that her mother's boyfriend had touched her vagina, put a screwdriver in her vagina, and kissed her buttocks. But a sexual assault examination revealed no trauma. When the sergeant discussed the examination with JD1's mother, she accused him of conspiring with the doctor to protect her boyfriend. JD1's six-year-old sister, who was in foster care, told her therapist that the boyfriend had also molested her. The sister made the report shortly after talking with her mother, and the sister's therapist and foster parent were shocked by the charges because the sister exhibited no signs of abuse. JD1's 10-year-old sister admitted falsely accusing the boyfriend of molesting her because "she was afraid her mother would beat her if she said [the boyfriend] did not touch her. She said her mother was always saying [the boyfriend] touched them." During the investigation, the mother kept calling the sergeant, yelling at him, and hanging up. The sergeant recommended that JD1 be taken into protective custody because of the mother's "irrational behavior," and closed the case against the boyfriend.
In 1999, JD1 reported to the Contra Costa Sheriff's Department that her mother's boyfriend put his finger in her vagina, and had her touch his penis, while she was in his car. A detective obtained the 1996 police report, and information from child protective services (CPS) that the mother "was mentally ill and projected her own molest onto the children. All of the CPS investigations were determined to be unfounded." Given this history, and proof of the boyfriend's whereabouts on the day of the alleged molestation, the detective and a deputy district attorney decided that no charges would be filed. JD1 later admitted that she had "lied because [the boyfriend] had done things to her in the past and he did not go to jail." The detective wrote: "I asked if she was referring to the incident that occurred in Pleasant Hill. She said she was. I explained that I knew her older sister . . . had said that [the ...