P. v. Bonella
Filed 3/8/13 P. v. Bonella CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD CLYDE
BONELLA,
Defendant and Appellant.
A131105
(Contra
Costa County
Super. Ct. No. 050807958)
A
jury convicted appellant Richard Clyde Bonella of eight counts of lewd conduct
with a child under 14 committed against a single victim. (Pen. Code,
§ 288, subd. (a).)
name="_ftnref2" title="">[2] Sentenced to 22 years in
improperly excluded from the courtroom during part of his trial; (2) he was
erroneously precluded from questioning the victim about financial gain as a
motive for bringing false charges against him; (3) inflammatory evidence was
improperly admitted; (4) the trial court denied him full access to the victim’s
psychiatric records; (5) prosecutorial misconduct
occurred during closing argument; and (6) his motion for new trial should have
been granted. We affirm the judgment.
I. FACTS
A. Molestation
Charges by Jane Doe
On
November 5, 2007, Martinez
police received a report of sexual abuse.
Twenty-seven-year-old Jane Doe told an officer that her brother Richard
Clyde Bonella had sexually abused her from 1984 through 1996.
detailing the circumstances of the childhood abuse.
A
complaint was filed in April 2008 charging Bonella with 40 counts of lewd
conduct with a child under age 14. His
brother Joseph Bonella
name="_ftnref4" title="">[4]
was also charged with three counts of lewd conduct. After his June 2008 preliminary hearing,
Bonella was held to answer for 20 counts of lewd conduct. In July 2008, an information was filed
charging 13 counts against him—eight counts of lewd conduct and five counts of
forcible sex offenses. It also charged
Joseph Bonella with two counts of lewd conduct.
victim. The information also included a
special statute of limitations allegation that Jane Doe was a minor at the time
of each of the offenses and did not report them to police until November
2007. (§ 288, subd. (a); see former
§ 261, subd. (a)(2) [Stats. 1986, ch. 1299, § 1, pp. 4592-4593;
Stats. 1990, ch. 630, § 1, pp. 3096-3097], § 286, subd. (c)
[Stats. 1986, ch. 1299, § 3, p. 4593; Stats. 1988, ch. 1243,
§ 6, pp. 4133-4135; Stats. 1991, ch. 144, § 1, pp. 1350-1353], §
288a, subd. (c) [Stats. 1986, ch. 1299, § 5, pp. 4595-4596; Stats. 1988,
ch. 1243, § 7, pp. 4135-4137]; see also §§ 803, subd. (f)(1),
1203.066.)
Bonella
pled not guilty to all charges and denied the special allegation. His January 2009 motion to dismiss was
granted as to the forcible offenses, but denied as to the remaining counts that
he challenged as having been barred by the statute of limitations. (§ 995.)
In February 2009, the trial court granted his motion to sever his trial
from that of Joseph Bonella.
name="_ftnref6" title="">[6] When trial began in July 2010, Bonella faced
eight lewd conduct charges—three committed between 1988 and 1989, two committed
between 1990 and 1991, and three committed from 1991 to 1992. (§ 288, subd. (a).) During the charged time period, Jane Doe was
between eight to 12 years old.
B. Trial
and Sentencing
1. Molestation
of Jane Doe
Jane Doe testified at trial when
she was 30 years old. Mary
and Ron I. were her parents. She grew up
as the youngest of a family of eight children, including her half-brothers
Joseph Bonella and Bonella, her sister G.P. and her brother Alexander, who was
two years older than she. Bonella was
about 20 years older than Jane Doe.
Jane
Doe grew up in a chaotic home. Mary
smoked marijuana from the time Jane Doe was four years old. Bonella smoked marijuana, too.
methamphetamines and cocaine. The drugs
made her erratic and paranoid. Mary was
often out of the home; when she was at home, she was not watching her children.
her older brothers to her youngest child.
G.P.
left home when Jane Doe was about four years old. Jane Doe told the jury that after G.P. moved
out, Bonella began fondling her, touching her genitals, kissing her, engaging
in mutual oral sex, digitally penetrating her, and having vaginal intercourse,
and anal sex with her. He ejaculated
every time, it seemed to her. Bonella watched her when her parents were gone
and he took advantage of the opportunities presented to him. His actions did not feel right to her;
sometimes, they were painful. Jane Doe
tried to get away, but Bonella was much bigger than she was and she was afraid
of him. He told her that if she told
anyone, he would hurt her.
Many
times, Bonella sexually abused her in his room.
Once when she was five, he did so in a camping trailer parked near the
house.
undress. Then, he had her orally
copulate him and engaged in painful vaginal intercourse. Bonella did not use condoms, ejaculating
inside her. From the time she was four
until she was six years old, Bonella touched Jane Doe and had oral sex or
vaginal intercourse with her about three times a week.
In
1988 and 1989, Jane Doe lived most of the time with Ron, but visited Mary on
weekends and holidays. Ron remarried in
December 1988. While he and his new wife
were on their honeymoon, Jane Doe stayed with Mary at a hotel. Her mother was usually gone. One day during this visit, Bonella brought a
woman to the hotel room and had sex with her while Jane Doe was on the bed with
them. He used a condom with the
woman. After she left, he made Jane Doe
orally copulate him twice. He did not
use a condom when he had vaginal intercourse with her, saying that she was his
lover. On another occasion, Bonella
brought a middle school girl to the hotel, kissing and fondling her in Jane
Doe’s presence. After the girl left,
Bonella had Jane Doe orally copulate him and they had vaginal intercourse. Almost every night during 1988-1989, Bonella
had her orally copulate him as a prelude to vaginal intercourse.
In
1990, Mary moved to Pittsburg. Jane Doe
stayed at Mary’s house at times when Bonella lived there. When Mary was gone during Christmas break,
Bonella repeatedly abused Jane Doe—fondling her, engaging in oral sex, and
having vaginal intercourse with the girl.
If she did not resist, he would allow her to be fed. If she was not enthusiastic about his
advances, Jane Doe was not fed. She
estimated that this occurred 10 times during her school break. When she stayed at Mary’s Pittsburg house,
Joseph Bonella began fondling her breast and rubbing his penis on her.
Bonella
treated Jane Doe like his girlfriend, calling her lover and being possessive
and jealous. If she had a boyfriend come
by, Bonella yelled at him. She was
afraid to tell anyone about the abuse.
Once, after she heard Bonella say that a short-haired woman was ugly,
Jane Doe chopped off her own hair hoping that he would think she was ugly and
would stop molesting her. A photograph
of Jane Doe with her hair cut was admitted into evidence.
In
1991, Mary moved to a Walnut Creek apartment.
Bonella was also there and he abused Jane Doe repeatedly—engaging in
mutual oral sex, vaginal, and anal sex—while she stayed with Mary. When Jane Doe returned to live with Ron, the
11-year-old told her stepmother that she was suffering from vaginal pain,
itching, and burning. Her stepmother took
her to the doctor in December 1991. Jane
Doe verified the date of her doctor visit by reviewing the medical record of
it.
into evidence. (Evid. Code,
§§ 1560-1562.)
About
this time, Bonella was having anal sex with Jane Doe more often, because she
feared becoming pregnant. She had not
yet begun to menstruate, but she knew that intercourse could lead to pregnancy
because her sister G.P. was newly pregnant with her first child.
saying that she did not want to have intercourse because she feared becoming
pregnant.
Bonella’s
sexual abuse ended after Jane Doe refused to go to Mary’s home for several
years. When Jane Doe was older, she
returned to live with Mary. Bonella
moved back in with Mary about the time of her 14th birthday in 1994. When he put his hand up her skirt, Jane Doe
told him to stop. She left her mother’s
home and never went back. She told her
boyfriend about the last incident and he was very angry about it. He helped move Jane Doe’s things from the
house so that she would not have to return to live there.
Jane
Doe told the jury that she never told Mary about his abuse because she did not
think her mother would believe her. She
did not tell Ron about Bonella’s sexual abuse until 2003 or 2004 because she
felt unwelcome at her stepmother’s house.
She thought that if they knew about the abuse, they would not want her
to be there and would blame her for it.
She did not report it to Martinez police until November 2007 when she
gave them a letter detailing Bonella’s abuse.
By this time, she knew that her older sister G.P. had been abused, too.
In
2009, Jane Doe testified against Joseph Bonella at his trial. The experience was very stressful, bringing
back so many memories that she wanted to forget. Having to testify about sexual abuse she
suffered as a child before strangers was embarrassing. Although she knew it was not her fault that
the abuse happened, it still felt shameful.
2. Other
Victims of Molestation
G.P. was the sister of Joseph
Bonella, Bonella, and Jane Doe. Joseph
Bonella was the eldest. Bonella was two
or three years younger than Joseph Bonella and about seven years older than
G.P., who was 15 years older than Jane Doe.
At the time of trial, G.P. was in her mid-40’s, a married stay-at-home
mother of three.
G.P.
told the jury that when she was five years old, her brothers hid a stolen
bicycle at home. When police asked about
the bicycle, Mary offered no assistance, but G.P. showed them where it
was. Later, Mary yelled at G.P. for
telling the truth instead of protecting her family. G.P. told the jury that this attitude was
pervasive in her family.
G.P.
told the jury about her molestation at
the hands of her brothers—a story similar to that Jane Doe told. When G.P. was a second-grader—about seven or
eight years old—first Joseph Bonella and then Bonella began touching her
genitals. The molestation started when
the family was living in San Francisco, about the time her older brothers got
in trouble with Mary for bringing their girlfriends home. The brothers never touched her together or
when others were in the house. They both
told her that if she told anyone, she would be taken away from Mary. Bonella also told her that no one would
believe her if she told them. G.P. was
afraid to tell Mary what was happening.
G.P.
moved to Fresno for a year when she was in third grade. Her brothers did not live with her during
this year. When she moved back to San
Francisco at the end of that year, Bonella and his brother continued their
sexual abuse. Bonella put his hands on
nine-year-old G.P.’s vagina. By this
time, Mary, Bonella, and Joseph Bonella were smoking marijuana.
During
fourth grade, G.P. lived at Shore Acres in Pittsburg. By the time she was nine or 10 years old, if
G.P. failed to do what Bonella asked while their mother was at work, he would
bring G.P. to her bedroom. He would
either whip her with a belt or molest her.
Bonella would touch the child’s vagina with his hands and would simulate
intercourse with her while she was still clothed.
In
the fifth grade, G.P. moved to another house in Pittsburg. Her older brothers had joined the military
and were not living at home. She liked
her stepfather, who was good to her. She
feared that he would leave if he knew the kind of family they were. Life was better for her, so G.P. did not tell
Mary what her brothers had done.
When
G.P. was in the sixth grade, Joseph Bonella came home on leave. He entered her bedroom, fondled her vagina
with his fingers and penetrated her.
G.P. tried not to move; she pretended that she was asleep or dead. Bonella also came home on leave and told G.P.
to sleep with him. He fondled her vagina
when they did so. The touching happened
more than once when G.P. was 11 or 12 years old. Bonella reminded G.P. that she was not
supposed to talk about this.
In
the seventh grade, G.P. lived in Pleasant Hill.
By this time, Mary had divorced G.P.’s stepfather and had married
Ron. Joseph Bonella was gone, but
Bonella had left the military and returned to live with the family. Bonella was not working, so he was left in
charge of his younger siblings while Mary and Ron were at work. When the house was empty, Bonella ordered
G.P. to perform oral sex. She either
complied or he hit her with a belt. G.P.
testified that Bonella molested her more than 10 times during the two years
that the family lived in Pleasant Hill.
Between
the seventh and eighth grades, G.P. ran away from home and went to a friend’s
house. G.P. told her friend and her
parents that the brothers were “doing things†to her. The parents talked to police about it, but
G.P. would not.
When
she was in the ninth grade, G.P.’s family moved to Martinez. G.P. lived there for five years—four years of
high school and a year of junior college.
She was 14 to 19 years old during this period. G.P. saw Mary, Bonella, and Joseph Bonella
burn a light brown rock and saw them smoke marijuana with Ron. When G.P. was about 15 years old, Jane Doe
was born.
While
they lived at the Martinez house, Bonella began to have vaginal intercourse
with G.P. He did not use condoms. He also fondled her and had her give him oral
sex. It seemed to G.P. that this
happened all the time. She tried to numb
herself during intercourse, pretending she was somewhere else and hoping that
Bonella would finish quickly. If it
seemed that Bonella was taking too long, she asked him to pull out before he
ejaculated. When Joseph Bonella came
back to the house, he fondled G.P., and performed oral sex on her. He also began having intercourse with
her. He did not use condoms,
either. Bonella treated G.P. like she
was his girlfriend. Sometimes, he, and
Joseph Bonella argued and fought over her.
When G.P. had a boyfriend, Bonella would threaten and intimidate him.
When
G.P. was 18, she became pregnant. She
feared that if one of her brothers was the father, the baby could be
retarded. Molestation was incestuous,
dirty, and shameful, G.P. told the jury.
She had an abortion.
name="_ftnref15" title="">[15] Afterward, she tried to commit suicide. G.P. did not want to live in a home where her
brothers could continue to abuse her.
She was admitted to a mental health facility for several days after her
suicide attempt.
title="">[16] She did not tell anyone at the hospital that
she had been sexually abused. (See Welf.
& Inst. Code, § 5150.)
By
her senior year in high school, G.P. got a job and could no longer babysit Jane
Doe. That job fell to the Bonella
brothers. When she was 19, during the
summer of 1985, G.P. left home. She
never lived with her mother or her siblings again. G.P. worried about what would happen to Jane
Doe once she left. She told Bonella that
if he touched Jane Doe, she would tell what he had done to her. If he did not molest her sister, G.P. told
him that she would remain silent about his past abuse of her.
In
1988, Jane Doe met G.P. and showed her a picture that the then-eight-year-old
had drawn of the devil. Jane Doe
identified the devil figure as Bonella.
abusing Jane Doe. She was trying to
start a new life and she did not want to know if sexual abuse was occurring. If G.P. knew that Bonella was abusing her
sister, she would have had to do something about it.
Seven
years passed before she had any contact with Bonella again. When G.P. met him, he apologized to her for
“making [her] life hell.†He asked for
her forgiveness, saying that he was crazy and that if G.P. ever said anything
about the molestation, he would commit suicide.
When G.P. asked if he had molested Jane Doe, Bonella swore he had
not. She told him that if he ever did,
she would tell about his abuse of her.
For
a long time, G.P. did not tell anyone other than her husband of the molestation
she suffered from her brothers. At the
end of 2007, Jane Doe told G.P. that both Bonella and Joseph Bonella had
sexually abused her.
name="_ftnref18" title="">[18] That admission prompted G.P. to tell Jane Doe
that they had also abused her. The sisters
did not offer each other any details of the abuse they suffered. Later, when the police contacted G.P., she
gave them a statement about what happened to her. It was very difficult for her to talk to a
stranger about this. The year before
when Joseph Bonella was prosecuted, Jane Doe and G.P. discussed some details of
the abuse with each other. G.P. did not
tell Jane Doe everything that she had told the jury.
G.P.
identified Bonella as the perpetrator of the sexual abuse she suffered from the
time she was seven until she left home at age 19. She told the jury that thinking about coming
to court to testify about these events made her feel sick, scared, and
ashamed. She worried that she could not
handle the memories and that she would be hospitalized again. Her fear that she could not handle the
memories was on her mind every day. In
the end, G.P. chose to come to court “[b]ecause the secrets have to stop.â€
b. R.H.
Joseph
Bonella’s one-time girlfriend had several grandchildren, including R.H. She told the jury that she first met Joseph
Bonella when she was about five years old.
He was living with her family.
Several times when she was five to nine years old, while R.H. was
asleep, Joseph Bonella would remove her pants, touch her genitals with his
hands and orally copulate her. She told
her cousins what Joseph Bonella had done, but did not tell any adult for fear
that she would get in trouble. Later,
her cousins told adults in the family what R.H. had said. When R.H.’s adult family members asked her
about the allegations, they were very upset.
Concerned that they might be mad at her, R.H. lied and said that she
made up the story about Joseph Bonella.
R.H.
recalled meeting Bonella when she was about seven. When she was about that age, Bonella tried to
kiss her. He looked at her in a way that
made her feel uncomfortable, so she left.
No one in her family ever asked her about the incident and she never
told anyone what Bonella did. It seemed
unimportant, compared to what Joseph Bonella was doing. When she was nine years old, R.H. moved away
and she did not see the brothers again.
Later, she told her mother and local police what Joseph Bonella had
done. She did not mention the incident
involving Bonella until 2008.
In
2008, R.H. initially reported that Bonella tried to touch her vagina. At trial, R.H. told the jury that she had
confused the two brothers when she made that statement. She made it clear to the jury that Bonella
had not touched her genitals. In court,
she identified Bonella.
c. L.B.
L.B.
was another grandchild of Joseph Bonella’s girlfriend and a cousin of R.H. She met Joseph Bonella and his brother when
she was about eight years old. When she
was about nine, L.B. sometimes stayed overnight at her grandmother’s house when
Joseph Bonella lived there. Bonella also
stayed there sometimes. L.B. told the
jury that when she slept at her grandmother’s house, Joseph Bonella repeatedly
fondled her, placing his hands on her vagina.
This occurred over a period of years.
When
L.B. was about nine years old, she awoke early one morning to discover Bonella
stroking her buttocks with his hands.
This only happened with Bonella once.
L.B. identified a photograph of Bonella as he appeared at the time of
this incident. She also made an in-court
identification of Bonella as the man who touched her when she was nine years
old. L.B. identified Joseph Bonella as
the subject of two other photographs dating from the early 1990’s.
her even after she told the police about Joseph Bonella’s misconduct. She blamed herself and was embarrassed to
admit that she had let this happen more than once. She first reported Bonella’s conduct in 2009.
3. Expert
Testimony
Two
expert witnesses testified about the behavior of sexual assault victims and the
investigation of these offenses. A
police detective told the jury that it was common for children who are sexually
assaulted to delay reporting that abuse due to embarrassment, confusion, fear,
and a sense that the victim is to blame.
If the abuser is a family member, there is also a concern about breaking
up the family. Commonly, victims fear
that they will not be believed. Many
victims make disclosures gradually over time.
Delayed disclosure is not inconsistent with having been the victim of
sexual abuse. Often, victims wait many
years to make such a disclosure. Most
child molestation occurs in private.
Many family members say they had no idea the abuse was happening. Sometimes, there is physical evidence of
sexual trauma; sometimes, there is not.
A
clinical psychologist testified about child sexual abuse accommodation
syndrome, in order to dispel common misperceptions about how children react to
abuse. He told the jury about common
aspects of child abuse accommodation:
secrecy, helplessness, entrapment, delayed reporting, unconvincing
disclosure, and retraction. Children
often do not seek help in order to protect themselves from abuse by adults,
especially when the abusers are family members or the parents have an impaired
ability to keep the children safe. The
children are often threatened, intimidated or bribed to keep the abuse
secret. The young victims feel trapped
by secrecy and helplessness. Some
victims disassociate while the abuse occurs, pretending to be asleep or
thinking about something else. This
allows the children to avoid the bad feelings that result from abuse while it
happens, but those feelings come back as the children age.
The
psychologist told the jury that delayed disclosure of child sexual
abuse—sometimes decades after it occurred—was not uncommon. Disclosure is a process, leading some
laypersons to find the varying reports inconsistent. In fact, it is typical for a child to report
some aspects of abuse and then wait to see if the listener is sympathetic or if
the threatened harm does not come to pass before making further
disclosures. As the child becomes an
adult and grows more independent, it becomes easier to disclose what
happened. Adults feel the need to tell,
while children are more likely to keep things secret out of fear. Some who report sexual abuse retract those
allegations, more often when the abuser is a family member. Family pressure keeps the child silent about
the abuse. The psychologist discounted
the likelihood that a child would make a false allegation of sexual abuse,
unless motivated by an adult, such as a parent engaged in a custody dispute.
4.
Other Prosecution Evidence
Alexander I.—the younger brother
of Bonella, Joseph Bonella, and G.P. and the older brother of Jane
Doe—testified about growing up in a family household with little parental
supervision. His parents went to work,
leaving him and Jane Doe in the care of the Bonella brothers. His brothers gave him alcohol and marijuana from
the time he was five or six years old.
Eventually, his parents divorced.
Mary was homeless for a time, living with friends, family, or in hotels. By the time he was 10, Alexander went to live
with his father, who had remarried. It
was not until 2004—when he was 26 years old—that Jane Doe told him that their
older brothers had sexually abused her when she was a child.
5.
Defense Case
On
cross-examination, Jane Doe admitted that she had been interviewed by members
of the prosecutor’s office about her allegations, but she denied being coached
by them. She admitted reviewing a
prosecution investigator’s report and a police report before trial. She told the jury that her testimony was
true—based on her memory, not on reports, transcripts, or discussions with her
sister G.P.
Redacted
versions of the two reports about the molestation that Jane Doe reviewed were
introduced into evidence at Bonella’s request.
The trial court admitted them, not for the truth of the matter contained
in them, but as evidence of what Jane Doe reviewed before she testified.
so closely to what she reported to police that the report constituted a script
for her false molestation charges.
During
her testimony, Jane Doe told the jury that when she was in the sixth grade, she
told a school friend that her brother was molesting her. Called as a witness for the defense, her
childhood friend testified that she did not recall Jane Doe telling her about
any molestation. She thought she would
remember it, but admitted that it was possible that she did not understand the
significance of what Jane Doe told her.
The witness also told the jury that from the time Jane Doe was eight or
nine years old, she often appeared at her friend’s house late at night on her
own. The witness’s parents did not allow
her to go to Jane Doe’s house, because Jane Doe’s parents did not supervise
their children.
Jane
Doe had also testified on direct examination that in 1994, Ron moved out of the
house where the two of them had been living.
Ron went to live with Jane Doe’s stepmother, who did not get along with
Jane Doe. Jane Doe did not want to
follow Ron to the stepmother’s house, but when she found herself alone at the
old house with adult men to whom he rented rooms, she left home. Eventually, Jane Doe went to stay with the
Teresa L. family for six months. While
she was living there, she had an encounter with a drunken Ron that upset
her. He hugged her in a way that made
her feel uncomfortable. When the L.s
asked why Jane Doe was upset, she told them what had happened.
Teresa
L., the mother in that household, testified for the defense. She confirmed that Jane Doe lived with her
family for about six months when the girl was about 16 years old. Teresa L. recalled the incident when Jane Doe
became upset after an encounter with Ron.
She told the jury that Jane Doe told her that Ron had touched her in an
inappropriate manner.
name="_ftnref22" title="">[22] After living with the family for six months,
Jane Doe ran away from the home, aided by Teresa L.’s daughter.
Once,
Jane Doe overheard a conversation about Teresa L.’s former husband having
molested Teresa L.’s daughter as a child.
Teresa L. had reported the molestation of her child to police and a
court process ensued. Hearing about this
molestation, Jane Doe disclosed to Teresa L. that her father had molested her
throughout her childhood. Teresa L.
considered going to the police, but Jane Doe pleaded with her not to, so she
did not. A few weeks later, Jane Doe
told Teresa L. that her brother Joseph Bonella had also molested her.
Teresa
L. suffered from chronic rheumatoid arthritis, for which she took pain
medication. She admitted that in 1990,
she had forged a Vicodin prescription, leading to a felony conviction. In 2008, while under the influence of
prescription medication, Teresa L. lost consciousness while driving, and her
car struck a tree. That incident led to
a conviction for driving while under the influence. She denied having a substance abuse problem
in between these incidents.
During
her testimony, Jane Doe had told the jury that in 1987, Bonella gave her a
kitten and said she could keep it if she was a good girl. A month later, according to Jane Doe, Bonella
decapitated the kitten. In Alexander’s
cross-examination, Bonella brought out evidence that the family never had cats
in their home. Alexander also testified
that Jane Doe and G.P. seemed happy when they were growing up.
Outside
the presence of the jury, Bonella sought to introduce evidence of Jane Doe’s
mental state, based on psychiatric records.
The trial court reviewed those records in camera, releasing some to the
defense, but ruling that most of them were not relevant. (See pt. V., post.)
6.
Argument
During closing argument, both
sides agreed that the case turned on the credibility of the witnesses. Bonella argued that Jane Doe’s story was
unbelievable. During rebuttal, he raised
numerous objections to the prosecutor’s arguments. Outside the presence of the jury, he moved
for a mistrial on prosecutorial misconduct grounds. Rejecting that assertion, the trial denied
the motion for mistrial. (See pt. VI.,
7.
Verdict and Sentencing
In July 2010, the jury found
Bonella guilty of all eight lewd conduct charges and made the special findings
needed to establish that the charges were filed within the statute of
limitations. One of these findings was
that independent evidence clearly and convincingly corroborated Jane Doe’s
allegations. (§§ 803, subd. (f),
1203.066.) Bonella’s motion for new
trial on grounds of newly discovered evidence was denied. (See pt. VII., post.) In December 2010, the
trial court sentenced Bonella to 22 years in state prison—an upper base term of
eight years for the principal lewd conduct offense, and two-year consecutive
one-third midterms for each of the other seven offenses.
II. EXCLUSION OF MOTHER
A.
Trial Court Ruling
First,
Bonella contends that the trial court violated his constitutional rights to due
process and a public trial by excluding his mother from the courtroom during
part of his trial. (U.S. Const., 6th
& 14th Amends.; Cal Const., art. I, §§ 15, 29.) Before trial, Bonella and the prosecution
both successfully moved to exclude witnesses from the courtroom when they were
not testifying. The prosecution listed
Mary—the mother of Bonella and Jane Doe—as a potential witness. When questioned, the prosecutor explained
that while she did not plan to call Mary as a witness, it was theoretically
possible that she would do so.
During
trial, Alexander—who testified before Jane Doe did—came to court with their
mother Mary. At the prosecution’s
request, Mary was ordered excluded from the courtroom. After Alexander’s testimony was completed,
Bonella objected to this exclusion, arguing that his right to a public trial
included the right to have his family attend the proceedings. He reasoned that as neither side intended to
call Mary as a witness, it was improper to exclude her.
The
prosecutor explained that Mary still remained a potential witness, because she
gave a statement to police that corroborated some aspects of Jane Doe’s
statements and Alexander’s testimony.
Depending on what evidence Bonella had yet to draw from Jane Doe, the
prosecutor might call Mary as a witness.
To prevent Mary’s possible testimony from being tainted, the prosecutor
sought her exclusion from the courtroom.
She noted that she did not ask to exclude Mary until Alexander—who
testified early in the trial—began his testimony. Once Jane Doe completed her testimony, the
prosecution would not oppose Mary’s presence in court. The trial court did not exclude Mary for the
entire trial, but—over Bonella’s objection—found that her exclusion during
Alexander’s testimony had been warranted and would continue until Jane Doe’s
testimony was complete. Mary was not
called to testify at trial.
B.
Exclusion of Potential Witness
Bonella’s
constitutional argument wrongly assumes that Mary served merely as a spectator
and support person. Our analysis of this
issue turns on the propriety of the trial court’s decision to exclude Mary as a
potential witness. A trial court has a
duty to control criminal proceedings in a manner that promotes the
ascertainment of truth about the matters involved in the case. (§ 1044.) It has discretion to exclude from the
courtroom any witness who is not then being examined, so that the witness
cannot hear the testimony of other witnesses.
(Evid. Code, § 777, subd. (a).)
The exclusion discourages tailored testimony and helps the jurors detect
false testimony. (Geders v. United States (1976) 425 U.S. 80, 87;
680, 687.) The discretion afforded to
the trial court to fashion an appropriate exclusion order is quite broad. (People
v. Garbutt (1925) 197 Cal. 200, 206-207; People v. Valdez, supra, 177 Cal.App.3d at p. 687;
Cal.App.2d 562, 571; see Geders v. United
States, supra, 425 U.S. at p. 87; Fed. Rules Evid., rule 615(a); see also 5
Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial,
§ 648, pp. 1003-1005; 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation
at Trial, § 85, pp. 137-139.) On
appeal, we determine whether the trial court abused that discretion.
Bonella
argues that Mary was not a witness within the meaning of section 777,
subdivision (a) of the Evidence Code.
Although the authority to exclude a witness under this provision does
not explicitly apply to both actual and potential witnesses as section 867
provides at a preliminary hearing,
both statutes have the same purpose.
Evidence Code section 777 if its authority did not apply to potential
witnesses. We are satisfied that the
trial court’s discretion to exclude a witness at trial extends to a witness
whose testimony may be needed later in the trial.
The
prosecutor’s statement that she did not plan to call Mary as a witness does not
alter our conclusion. The prosecutor
made it clear that while Mary’s testimony was not integral to her
case-in-chief, she might be needed to corroborate the testimony of Alexander or
Jane Doe, as the trial testimony unfolded.
The limited exclusion of Mary from the courtroom during the testimony of
these two witnesses furthered the purpose of the statute by preventing the
mother from hearing testimony about subjects which she herself might be called
upon to testify. (Evid. Code,
§ 777, subd. (a).) The trial court
did not abuse its discretion in ordering the limited exclusion of Mary during
the testimony of these two witnesses.
C.
Right to Public Trial
Bonella
argues that Mary’s exclusion violated his right
to a public trial. An accused has a
right protected by both the federal and state Constitutions to a trial that is
open to the general public at all times.
(U.S. Const., 6th & 14th Amends.; Cal Const., art. I,
§§ 15, 29; People v. Woodward (1992) 4 Cal.4th 376, 381-382
[federal and state rights coextensive]; People
v. Bui (2010) 183 Cal.App.4th 675, 680.)
The right to a public trial benefits the accused, allowing the public to
see the trial is fair. The presence of
spectators conveys to the jury a sense of the importance of its role in the
trial. It also ensures that the judge
and prosecutor carry out their duties in a responsible manner and discourages
witnesses from offering perjured testimony.
(Waller v. Georgia (1984) 467 U.S. 39, 46; People v. Woodward,
supra, 4 Cal.4th at p. 385.) The
public trial right includes the right of an accused to have supportive family
and friends present during the proceedings.
(In re Oliver (1948) 333 U.S.
257, 271-272.)
When
the general public is entirely or substantially excluded from trial
proceedings, the right to a public trial is clearly implicated, requiring a
balancing of competing interests and specific written findings to demonstrate
that the exclusion was necessary. (Waller
v. Georgia, supra, 467 U.S. at pp. 44-45; People v. Woodward, supra, 4
Cal.4th at p. 383.) Such a denial of a
public trial constitutes structural error requiring reversal per se. (People
v. Woodward, supra, 4 Cal.4th at p. 381; People v. Bui, supra, 183 Cal.App.4th at p. 680;
Cal.App.4th 539, 551-552; see Waller v. Georgia, supra, 467 U.S. at pp.
49-50.)
However,
not every exclusion of some spectators rises to the level of a constitutional
violation. Some exclusions are so “de
minimis†that they do not violate the public trial right. (People v. Woodward, supra, 4 Cal.4th
at pp. 384-386; People v. Bui, supra,
183 Cal.App.4th at pp. 682-684.) The
partial exclusion of spectators does not raise the same constitutional concerns
as a total exclusion, because the remaining audience ensures the fairness of
the proceedings. In these circumstances,
a trial court’s exclusion of some spectators will be upheld if a substantial
reason supports the exclusion. (
98-99.) Even the temporary exclusion of
selected supporters of the accused may fall under the “de minimis†rule, such
that it does not violate the fundamental constitutional
right to a public trial. (
pp. 688-689; People v. Esquibel, supra,
166 Cal.App.4th at pp. 543, 549, 554.)
The
exclusion of defendant’s family members has been upheld against a right to
public trial challenge when those persons were witnesses at trial. (People
v. Sprague (1879) 53 Cal. 491, 493.)
We are satisfied that Mary’s exclusion did not violate Bonella’s constitutional
right to a public trial but fell within the “de minimis†rule. The trial court’s authority to exclude her as
a potential witness provides a substantial reason for the exclusion order. (See U.S.
v. Osborne, supra, 68 F.3d at pp. 98-99.)
In the case before us, the trial court’s order was narrowly tailored,
excluding Mary only during the testimony of the two witnesses whose testimony
she may have been called to corroborate.
(See, e.g., Waller v. Georgia,
supra, 467 U.S. at p. 45; People v.
Esquibel, supra, 166 Cal.App.4th at p. 554.) Bonella does not argue that Mary was excluded
from other aspects of the trial or that other supporters were excluded. The trial court’s narrow exclusion order did
not violate Bonella’s right to a public trial.
III. VICTIM COMPENSATION
A. Disability
Benefits
1. Relevance
Next,
Bonella contends that he was wrongly precluded from questioning Jane Doe about
financial gain she achieved as a result of her molestation allegations. He argues that this error violated his
federal constitutional rights to confrontation and due process. (See U.S. Const., 6th & 14th
Amends.) At trial, he sought to question
Jane Doe about disability payments she received because she was unable to work
due to a post traumatic stress disorder resulting from sexual abuse. The trial court conducted a foundational
hearing outside the presence of the jury at which Jane Doe testified that she
received disability payments for both a physical disability and because of post
traumatic stress disorder. She told the
trial court that even if Bonella was acquitted, she would continue to receive
full disability payments. (Evid. Code,
§ 402.) Finding that Bonella’s
proffered evidence had no probative value and was unduly prejudicial—in part
because it was intrusive to Jane Doe, in part because it might confuse the jury
and consume undue time—the trial court excluded it. (Evid. Code, §§ 350, 352.)
An
accused has a constitutional right to confront and cross-examine adverse
witnesses. (U.S. Const., 6th Amend.; Cal
Const., art. I, § 15; Davis v.
Alaska (1974) 415 U.S. 308, 315; People
v. Cromer (2001) 24 Cal.4th 889, 896-897; People v. Ardoin (2011) 196 Cal.App.4th 102, 118.) Denial of this right deprives the accused of
an opportunity to test the credibility of the prosecution’s witnesses, calling
into question the integrity of the jury’s verdict. (Chambers
v. Mississippi (1973) 410 U.S. 284, 295; People v. Cromer, supra, 24 Cal.4th at p. 897.) Exposing a
witness’s credibility—including his or her motive for testifying—is a proper
function of the constitutional right of cross-examination. (Delaware
v. Van Arsdall (1986) 475 U.S.
673, 678-679; People v. Ardoin, supra, 196
Cal.App.4th at p. 118; see People v.
Redmond (1981) 29 Cal.3d 904, 913 [victim compensation evidence properly
excluded].)
Still,
the right of confrontation is not absolute.
In the exercise of this right, the accused and the state must both
comply with rules of procedure and evidence intended to assure that the jury’s
ultimate determination is fair and reliable.
(People v. Ardoin, supra, 196
Cal.App.4th at p. 118.) A proper application of rules of evidence
does not impermissibly infringe on a defendant’s due process rights. (Id.
at pp. 119, 122.)
At
the foundational hearing, Jane Doe testified that her disability payments would
not be altered by the outcome of
Bonella’s trial. Hearing this, the trial
court ruled that her testimony on this subject was not relevant. We conclude that this ruling was correct. When determining the credibility of a
witness, the jurors may consider any matter that has a tendency in reason to
prove or disprove the witness’s testimony, including the existence of an
interest or other motive for offering his or her testimony. (Evid. Code, §§ 210, 350, 780;
337.) However, Jane Doe’s testimony did
not provide any evidence of financial motive.
The trial court did not abuse its discretion when concluding that Jane
Doe’s testimony would not be relevant. (
p. 337.)
2
Evidence Code Section 352
In
addition to its relevance ruling, the trial court also found that Bonella’s
proffered evidence was more prejudicial than probative. (Evid. Code, § 352.) A trial judge has wide latitude to impose
reasonable limits on cross-examination to preclude questioning about matters
that are only marginally relevant. The
exclusion of impeachment evidence on collateral matters which have only a
slight probative value on a witness’s veracity does not infringe on the right
to confrontation. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679;
p. 913; People v. Ardoin, supra, 196
Cal.App.4th at p. 119.) When a trial court properly restricts
cross-examination as more prejudicial than probative, no Sixth Amendment
violation arises unless the prohibited cross-examination might reasonably have
produced a significantly different impression of the witness’s
credibility. (People v. Ardoin, supra,
196 Cal.App.4th at pp. 119, 122.)
The
admissibility of the proffered evidence was subject to the trial court’s
exercise of discretion to exclude evidence that was more prejudicial than
probative. We review this decision for
an abuse of discretion—for an error constituting a miscarriage of justice. (People
v. Ardoin, supra, 196 Cal.App.4th at
p. 121; see Evid. Code, § 352.)
Even if the disability benefits evidence had some minimal probative
value, its admission was highly prejudicial, as it could have confused the jury
and consumed undue time. The trial court
acted within its discretion when it precluded Bonella from cross-examining Jane
Doe about her receipt of disability payments.
As such, its ruling did not implicate Bonella’s constitutional rights to
confrontation or his due process rights.
(See Delaware v. Van Arsdall,
supra, 475 U.S. at p. 679; People v.
Redmond, supra, 29 Cal.3d at p. 913; People
v. Ardoin, supra, 196 Cal.App.4th at
p. 119.)
B. Restitution
Bonella also contends that he
should have been permitted to discover evidence of proceeds that Jane Doe
received from the Victim Compensation and Government Claims Board. He reasons that because he was not permitted
to discover this evidence, its exclusion from evidence violated his federal
constitutional right to confrontation and to due process. (See U.S. Const., 6th & 14th
Amends.) Before trial, he made an oral
motion in limine seeking disclosure of evidence of funds paid to Jane Doe as restitution,
reasoning that this provided her with a financial incentive to offer false
testimony against him. The prosecution
noted that because even victims who failed to cooperate with the prosecution
received benefits, there was no payment for prosecuting.
Without
explaining its reasoning, the trial court ruled that any proffered evidence of
restitution would be excluded. Bonella
did not press the trial court for its rationale. Later, when denying his related motion for
mistrial, the trial court ruled that reimbursement funds or other victim
compensation did not constitute being paid to be in court, and thus did not
constitute financial gain. (See pt.
VI.B.5., post.)
Assuming
arguendo that the trial court’s ruling on the motion in limine was sufficient
to preserve this issue for determination on appeal, we would conclude that its
evidentiary ruling was proper. (See
1171.) The trial court’s implied
determination that the evidence did not tend to establish a motive for Jane Doe
to make a false accusation against Bonella—or at best, provided insufficient
probative value to outweigh its prejudicial effect—would not constitute an
abuse of discretion. (
p. 337 [relevance]; People v. Ardoin,
supra, 196 Cal.App.4th at p. 121 [352 ruling].) The purpose of victim restitution is to
criminal’s acts. (See, e.g.,
§ 1202.4, subd. (a)(1).) Thus
victim restitution does not represent any financial
gain. The exclusion of evidence
having no probative value about Jane Doe’s veracity did not infringe on
Bonella’s right to confrontation or other due process rights. (Delaware
v. Van Arsdall, supra, 475 U.S. at p. 679; People v. Redmond, supra, 29 Cal.3d at p. 913; People v. Ardoin, supra, 196 Cal.App.4th at pp. 119, 122.)
IV. ADMISSION OF EVIDENCE
A. Jane Doe’s Vaginal Itching and Pain
Bonella
also contends that highly inflammatory and misleading evidence was improperly
admitted against him. He first argues
that the trial court violated his due process rights by admitting evidence of
Jane Doe’s vaginal itching and pain that was not linked to sexual abuse. (See U.S. Const., 14th Amend.)
In
the trial court, Bonella filed a motion in limine to exclude evidence of Jane
Doe’s 1991 yeast infection and vaginal itching because she did not specifically
link these ailments to his conduct. The
prosecution argued that the evidence was relevant to show that Jane Doe was
abused at this time, because she recalled visiting the doctor during this
period when Bonella abused her.
Bonella—noting that Jane Doe asserted that both he and Joseph Bonella
abused her during this time—argued that the evidence was irrelevant and was
more prejudicial than probative. (Evid.
Code, § 352.) The trial court
admitted a redacted version of the medical report to establish the timing of
Jane Doe’s vaginal complaint to the doctor.
It excluded the doctor’s specific diagnosis of a yeast infection as
hearsay evidence.
At
trial, Jane Doe testified that in 1991, she suffered vaginal itching and pain
that prompted her to see a doctor during a period in which Bonella often
engaged in vaginal intercourse with her.
The sanitized report corroborating this doctor visit was admitted into
evidence. The prosecution referred to
the medical report during closing argument as corroboration of Jane Doe’s
testimony that she suffered from a vaginal ailment in 1991.
We
are guided by the legal principle that all relevant evidence is
admissible. (Evid. Code, §§ 210,
350.) Relevant evidence has a tendency in
reason to prove any disputed fact of consequence to the action. (Id.,
§ 210; People v. Riggs (2008)
determine the relevance of evidence. On
appeal, we review the trial court’s ruling for an abuse of discretion. (People
v. Howard (2010) 51 Cal.4th 15, 31; People
v. Riggs, supra, 44 Cal.4th at pp. 289, 292; People v. Harris, supra, 37 Cal.4th at p. 337.)
Bonella
argues that the medical report was highly prejudicial because the condition Jane
Doe suffered was not linked with the claim of his sexual abuse of her. We disagree.
The medical report was admitted to establish that 11-year-old Jane Doe
complained of vaginal discomfort.
Evidence of the timing of her complaint tended to corroborate Jane Doe’s
testimony about the timing of the sexual abuse she suffered during the relevant
time.
The
amended information alleged that offenses occurred during three distinct time
periods. The prosecution had the burden
of proving the commission of offenses during each time period beyond a
reasonable doubt. Thus, it was entitled
to put on evidence relevant to prove that timing. Jane Doe testified that her doctor visit
followed a period of sexual abuse by Bonella.
The medical report, combined with Jane Doe’s testimony, allowed the
jurors to reach a reasonable inference that Bonella was sexually abusing her in
1991. Thus, the medical report was
relevant because it had a tendency in reason to prove a fact in dispute in the
matter, including the credibility of Jane Doe.
(Evid. Code, § 210.) The
trial court did not abuse its discretion finding that the medical report was
relevant to corroborate Jane Doe’s testimony of sexual abuse. This evidence is also independent
corroboration as required by the Statute of Limitations.
A
trial court has the authority to exclude even relevant evidence if its
probative value is substantially outweighed by its prejudicial effect. (Evid. Code, § 352; People v. Riggs, supra, 44 Cal.4th at p. 290.) Prejudicial evidence is not merely damaging
evidence, but evidence that creates a substantial likelihood that it will
inflame the jury, which will then use the evidence for an improper
purpose. (People v. Scott (2011) 52 Cal.4th 452, 491; People v. Howard, supra, 51 Cal.4th at p. 31.) Evidence is substantially more prejudicial
than probative if it poses an intolerable risk to the fairness of the
proceedings or the reliability of the outcome.
We review a trial court’s Evidence Code section 352 ruling for an abuse
of discretion. (People v. Riggs, supra, 44 Cal.4th at p. 290.) We are satisfied that the trial court did not
abuse its discretion by denying Bonella’s motion to exclude the medical report
as more prejudicial than probative.
The
admission of relevant evidence does not violate due process unless the evidence
renders the trial unfair. (
903, 913; People v. Nguyen (2010) 184
Cal.App.4th 1096, 1116.) As we find no
risk to the fairness of the proceeding or the reliability of the verdict stemming
from the admission of the medical report, we reject Bonella’s due process claim
of error.
B. G.P.’s
Pregnancy and Abortion
Bonella
also challenges the trial court’s admission of evidence of G.P.’s pregnancy and
abortion. As those events were not
specifically linked to his conduct, he reasons that the admission of this
evidence violated his federal right to due process. At trial, Bonella objected when the
prosecutor indicated an intention to question G.P. about her teenage pregnancy
and abortion. The prosecution argued
that the evidence was relevant to bolster Jane Doe’s testimony that the Bonella
brothers sexually abused her, and to show G.P.’s emotional reaction to her own
sexual abuse. The trial court ruled that
the evidence was admissible, rejecting Bonella’s claim that it was more
prejudicial than probative. (Evid. Code,
§ 352.) At trial, G.P. testified
that both Bonella brothers had intercourse with her. When she became pregnant at age 18, she had
an abortion, fearing that one of her brothers was the incestuous father of a
her unborn child.
On
appeal, Bonella contends that this evidence was not sufficiently relevant to be
admissible because G.P. did not testify that she was not having sexual
intercourse with anyone other than her brothers. He reasons that its lack of relevance to
prove sexual abuse, combined with its tendency to invoke an emotional bias from
the jurors, warranted its exclusion as more prejudicial than probative. (Evid. Code, § 352.)
We
disagree, for two reasons. First, we
reject Bonella’s claim that the evidence was completely irrelevant. G.P.’s testimony about her pregnancy and her
motive for having an abortion—because she feared that one of her brothers
tendency to corroborate her testimony that Bonella had sexually abused
her. G.P.’s credibility about Bonella’s
sexual abuse was a key issue in dispute at trial. (See Evid. Code, § 210.) A trial court has broad latitude to determine
the relevance of evidence, which we evaluate on appeal for an abuse of
discretion. (People v. Scott, supra, 52 Cal.4th at p. 490.) The fact that G.P. did not identify Bonella
as the only possible father of her child did not render the proffered evidence
irrelevant.
We
also reject the claim that the trial court abused its discretion when it denied
Bonella’s motion to exclude this testimony.
The undue prejudice that
Evidence Code section 352 seeks to avoid is not
that naturally flowing from relevant, highly probative evidence. Instead, the statute attempts to avoid the
prejudging of a case based on extraneous
facts. (People v. Scott, supra, 52 Cal.4th at p. 491; People v. Zapien (1993) 4 Cal.4th 929, 958.) Evidence should be excluded as unduly
prejudicial when it inflames the emotions of the jurors, motivating them to use
the information, not to logically evaluate the point on which it is relevant,
but to reward or punish one side because of the jurors’ emotional
reaction. The evidence is unduly
prejudicial if there is a substantial likelihood that the jurors will use it
for an illegitimate purpose. (
491.)
We
are satisfied that this evidence was not unduly prejudicial in this sense. We have already found that the evidence was
more than a little relevant to the issues.
Pregnancy is a natural consequence of vaginal intercourse. An abortion is also a possible consequence of
the incestuous acts of intercourse that G.P. testified about, rather than an
extraneous fact having little effect on the issues. Her testimony about pregnancy and abortion
was no more sensational than the years of childhood sexual abuse that Jane Doe
and G.P. testified had occurred. In the
context of these allegations, G.P.’s testimony did not uniquely tend to evoke
an emotional bias against Bonella based on minimally relevant evidence. (People
v. Bolin (1998) 18 Cal.4th 297, 320; People
v. Yu (1983) 143 Cal.App.3d 358, 377.)
The evidence did not create a substantial likelihood that it would be
used for an illegitimate purpose. (
491.) The proffered evidence also did
not pose an intolerable risk to the fairness of the proceedings or the
reliability of the outcome. Thus, the
trial court’s admission of this testimony was not an abuse of discretion and
did not violate Bonella’s due process rights.
(See People v. Falsetta, supra, 21
Cal.4th at p. 913; People v. Nguyen,
supra, 184 Cal.App.4th at p. 1116.)
C. L.B.’s
Identification of Booking Photographs of Bonella and His Brother
Bonella also challenges the
trial court’s admission of past photographs of himself and his brother to allow
L.B. to identify him and Joseph Bonella.
He asserts that the trial court’s failure to exclude these booking
photographs as suggestive of other uncharged misconduct violated his federal
due process rights. In the trial court,
Bonella objected that the booking photographs were unduly suggestive of other
criminal activity. The prosecutor planned
to use the photographs of the two brothers at a younger age to allow L.B. to
differentiate between the brothers. She
noted that in his opening statement, Bonella’s counsel had suggested that L.B.
had confused the two brothers. Twenty
years had passed since the events about which L.B. would testify, making the
older photographs more relevant than an in-court identification. The prosecutor also argued that the
photographs would not appear to be booking photographs to laypersons.
The
trial court examined the photographs and ruled that they were probative on
identification, that the head shots did not suggest that they were booking
photographs, and that the admission of this evidence was not unduly
prejudicial. (Evid. Code,
§ 352.) When L.B. testified at age
25, she reviewed the photographs and identified one as Bonella and two others
as Joseph Bonella as they appeared at the time that each molested her as a
child. These three photographs were
admitted into evidence.
On
appeal, Bonella challenges the admission of these photographs into
evidence. He suggests first that the
evidence was not relevant. The trial
court thought otherwise, given the identification issues inherent in an offense
committed many years earlier when L.B. was a child. We conclude the trial court did not abuse its
broad discretion to determine that this evidence was relevant on
identification. (People v. Howard, supra, 51 Cal.4th at p. 31; People v. Riggs, supra, 44 Cal.4th at pp. 289, 292;
p. 337.)
Bonella
also contends that the photographs were seen by the jurors as booking
photographs. A booking photograph taken
before the present charges were made carries the implication that the person
depicted in the photograph suffered previous arrests and may have been
convicted of other offenses. (
370, 384, disapproved on other grounds in People
v. Carter (2003) 30 Cal.4th 1166, 1197-1198.) This photographic evidence is prejudicial
because it suggests that the photographed person has a bad character. The admission of such evidence may constitute
an abuse of discretion. (
Cal.App.4th 587, 609-610.)
In
the matter before us, the trial court made the factual finding that the head
shots of Bonella and Joseph Bonella would not suggest to lay jurors that they
were booking photographs. We review a
trial court’s factual finding for substantial evidence. (People
v. Leyba (1981) 29 Cal.3d 591,
596-597.) Having reviewed the
photographs, we are satisfied that there is substantial evidence to support the
trial court’s finding. The photographs
do not have the “familiar and unmistakable appearance†of booking
photographs. There is no blanked over
area at the bottom showing something that has been blocked off, nor do the
photographs appear to be wooden or expressionless as mug shots often do. (See
| Description | A jury convicted appellant Richard Clyde Bonella of eight counts of lewd conduct with a child under 14 committed against a single victim. (Pen. Code,[1] § 288, subd. (a).)[2] Sentenced to 22 years in state prison, he appeals. Bonella contends that (1) his mother was improperly excluded from the courtroom during part of his trial; (2) he was erroneously precluded from questioning the victim about financial gain as a motive for bringing false charges against him; (3) inflammatory evidence was improperly admitted; (4) the trial court denied him full access to the victim’s psychiatric records; (5) prosecutorial misconduct occurred during closing argument; and (6) his motion for new trial should have been granted. We affirm the judgment. |
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