Monterey County Superior Court No. SS120448 The Honorable Pamela L. Butler Judge.
[Copyrighted Material Omitted]
J. Wilder Lee under appointment by the Court of Appeal for Defendant and Appellant
Kamala D. Harris Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant appeals from a judgment arising out of sex crimes against a girl. The trial court made serious mistakes by failing to
adequately inquire into and police the prosecutor’s conduct after the prosecutor threatened to prosecute the defense investigator and insinuated that defense counsel could also be prosecuted, in each case for reasons both parties now agree would have been groundless. Defense counsel also failed to do all he could to safeguard defendant’s right to the effective assistance of counsel when this occurred. We would reverse the judgment and remand for retrial with a defense team not under this sword of Damocles, but, as we explain in part I of our discussion, People v. Doolin (2009) 45 Cal.4th 390 [87 Cal.Rptr.3d 209, 198 P.3d 11] (Doolin), compels us to affirm it. In part II of our discussion, we raise the question whether our Supreme Court intended for Doolin to apply in these circumstances and suggest an alternative approach.
An information charged Antonio Almanza with four counts of a nonforcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a)),  three counts of forcible sodomy (§ 286, subd. (c)(2)), and one count of a forcible lewd or lascivious act on a child under age 14 (§ 288, subd. (b)(1)).
Defendant waived his right to a jury trial. Following a contested trial to the bench, the court adjudged him to be guilty of the lewd-act counts but not guilty of the sodomy counts.
The trial court sentenced defendant to an aggregate term of 16 years in state prison.
I. Prosecution Case
Jane Doe, a teenager at the time of trial, had three brothers. The children all lived under the same roof as their mother, A.A., and defendant. Jane was the second-oldest child. When Jane was a baby, defendant moved into the house to be with A.A. Defendant and A.A. never married, but Jane and her brothers regarded him as their stepfather.
Jane Doe testified at length. Defendant started to sexually molest her when she was around seven or eight years old, and continued until about two weeks before his arrest, which occurred when Jane was 12. Once when Jane was taking a shower in the master bathroom, defendant opened the shower door
and inserted his finger in Jane’s vagina. Jane, too young to understand the import of this act, laughed because at the time she thought it was “funny.”
Over the next several years, defendant repeatedly inserted his penis in Jane’s vagina and between the cheeks of her buttocks. The molestations would occur while Jane and defendant were alone, usually in the master bedroom while the television set was on, and always on weekends. Once, in early 2012, while defendant and Jane were alone in the living room, defendant placed Jane’s hand on his penis and moved her hand up and down. On other occasions defendant manipulated Jane’s breasts. These acts were done against her will.
After the authorities discovered what was happening, Jane was interviewed at a police station and a hospital. The trial court listened to recordings of the interviews. Jane also made a so-called pretext telephone call to defendant from the police station and the court listened to the recording of the call. The transcription of the call includes the following exchange:
“[Jane Doe]:... you touched me.“[¶]... [¶]
“[Defendant]: And who did you tell? “[¶]... [¶]
“[Defendant]: You know what’s going to happen, right?
“[Jane Doe]: No. [¶] . . . [¶]
“[Defendant]: OK. The same thing is going to happen as the time with, with [your brother A.M.]. If you’re talking to somebody, or if you told somebody.
“[Jane Doe]: You put your penis down my vagina.
“[Defendant]: So what? “[¶]... [¶]
“[Jane Doe]: You, you did it to me.
“[Jane Doe]: You know what I’m talking about.
“[Jane Doe]: You don’t have to lie!
“[Jane Doe]:... You touched me. Tell the truth.
“[Defendant]: OK bye, bye. Don’t tell anyone, OK?”
Defendant’s reference to Jane’s brother regarded physical child abuse Jane’s mother A.A. had committed. A.A. beat Jane, her brother A.M., and another brother with a belt in 2006. The children were removed from the home by child welfare authorities. ...