California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 95CF1089, Lance P. Jensen, Judge.
[Copyrighted Material Omitted]
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristen Chenelia and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Leticia Garcia was charged with sexually abusing a girl she babysat. At trial, the prosecutor attempted to show she is a lesbian. The prosecutor asserted during closing argument that her supposed attraction to other women gave her a motive to sexually abuse the victim. While disavowing the notion that all lesbians are child molesters, she nonetheless argued it was very telling that appellant “is attracted to females” and the victim was “a female child.” In the end, the jury convicted appellant as charged, and the trial court sentenced her to 16 years in prison.
We do not believe appellant’s sexual orientation was relevant to any issue in this case. The trial court was largely successful in limiting the jury’s exposure to evidence regarding appellant’s sexual orientation however, so we
find no abuse of discretion in the denial of appellant’s requests for a mistrial during the evidentiary phase of the trial. But we cannot overlook the fact the prosecutor repeatedly attempted to make an issue out of appellant’s sexual orientation and emphasized this issue to the jury in closing argument. This was prejudicial misconduct. It leaves us with no confidence the jury could have evaluated the charges against appellant in a fair and impartial manner and requires us to reverse the judgment.
Overview of the Case
The events at issue occurred between 1991 and 1995. During that time, A.G., who was six years old in 1991, lived in Santa Ana with her mother Maria, her two younger sisters, and Maria’s boyfriend Mario. Appellant was the family’s live-in babysitter but really functioned as a maid. She not only looked after the children when Maria and Mario were at work, she also cooked for the family and cleaned their residence. Maria was never happy with this arrangement, though. Although appellant is a member of her extended family and had previously cared for her brother’s children, Maria distrusted her and wanted to get rid of her.
Appellant worked for the family until March 2, 1995. When Maria came home from work that day, she found appellant in the bedroom with A.G. It appeared to Maria that appellant was kissing and caressing A.G. in a sexual manner, but when she asked appellant what was going on, appellant insisted she was merely comforting A.G. In the wake of this incident, Maria fired appellant and notified the authorities, to whom A.G. reported appellant had been sexually abusing her for a long time. Police were unable to find appellant after she left Maria’s employ, and she was not formally charged until 2011.
Evidence Concerning the Allegations
Trial commenced in 2012. At that time, A.G. was 28 years old. She testified appellant molested her virtually every day from the time appellant moved into her house in 1991 until the bedroom incident in 1995. The molestation occurred mostly at night, was sometimes forceful, and included digital penetration of A.G.’s vagina. Appellant would not only touch and kiss A.G.’s breasts and vagina, but would also have A.G. do the same to her. She said appellant told A.G. she would kill her parents and molest her sisters if she told anyone about the abuse.
Describing the bedroom incident, A.G. testified she and appellant were on the bed in Maria’s room, and her younger sisters were sitting on the floor.
They were all watching television when appellant got on top of her and started kissing her and touching her breasts and vagina. When Maria came into the room, she yelled at appellant and told her to leave. Then Maria asked A.G. what was going on. A.G. said appellant had been touching her private parts, and this was not the first time she had done so.
About a week later, A.G. was interviewed by a social worker on the Child Abuse Services Team (C.A.S.T.). During the interview, A.G. claimed that not only had appellant been sexually molesting her on a regular basis, her teenage cousin Emilio had also touched her inappropriately at times. She said appellant knew Emilio was molesting her and had threatened to tell Maria about the molestation if A.G. ever revealed what appellant was doing to her. A.G. also claimed she was once sexually molested by her uncle when she was four years old and that one of her sisters was once molested by a neighbor. At trial, A.G. testified she had no memory of Emilio ever touching her inappropriately. However, she did recall that appellant had once locked her and Emilio in a room with Emilio. She said appellant threatened to tell Maria that Emilio had molested her if she ever reported what appellant was doing to her. She said appellant repeated this threat so often she eventually came to believe Emilio had actually molested her.
Maria testified that when she walked in on appellant and A.G. during the bedroom incident, appellant “was caressing [A.G.] as if she was a man.” Their legs were intertwined and appellant was touching A.G.’s chest and kissing her. Maria also testified A.G. had complained about appellant touching her inappropriately before this incident occurred. However, whenever Maria confronted appellant about this, she denied any wrongdoing. It was only after Maria caught appellant “in the act” during the bedroom incident that she decided to report appellant to the authorities.
Appellant denied ever touching A.G. in an inappropriate manner. She said she loved A.G. and her sisters and would never do anything to harm them. As for the bedroom incident, appellant said she had sent A.G. to the room for a “time out” because she had been misbehaving. A.G. was on the bed crying for quite some time, so appellant went into the room to calm her down. In doing so, appellant bent over to wipe away her tears and tickle her. That was when Maria came into the room and accused her of sexually molesting A.G. Appellant testified she was only trying to comfort A.G. She said the reason she stayed away from A.G.’s family so long after the allegations surfaced was that she feared Maria.
Appellant continued to work as a babysitter after she was fired by Maria. Several of the parents appellant worked for testified appellant was great with their children and never caused any problems. They did not believe appellant was the type of person who would ever sexually abuse a child.
The Evidence Code Section 402 Hearing on the Issue of Appellant’s Sexual Orientation
Before trial, defense counsel moved to exclude any evidence of appellant’s sexual orientation on the grounds such evidence was irrelevant, speculative and unduly prejudicial under Evidence Code section 352. Defense counsel also sought to exclude appellant’s booking photo, which was taken at the time of her arrest in 2011. With respect to that photo, defense counsel told the court, “This ties into the sexual preference motion. It’s a bad booking photo, Your Honor. She looks like a man with a polo shirt.” The ...