P. v. Bryson

















Filed 1/3/13 P.
v. Bryson CA2/3

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION THREE




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THE PEOPLE, Plaintiff and Respondent, v. Gloria Lynne Bryson, Defendant and Appellant.

B239992 (Los Angeles County Super. Ct. No. MA051954)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Akemi Arakaki, Judge.
Affirmed.



Vanessa Place, under appointment by the
Court of Appeal, for Defendant and Appellant.



No
appearance for Plaintiff and Respondent.



Defendant
and appellant Gloria Lynne Bryson appeals from the judgment entered following
jury trial which resulted in her conviction of two counts of committing a lewd
act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)),href="#_ftn1" name="_ftnref1" title="">[1]
sexual penetration by a foreign object on a child under the age of 14 years and
more than 10 years younger than the defendant (§ 289, subd. (j)), continuous
sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a)), and the
aggravated sexual assault of a child
under the age of 14 years and who is seven or more years younger than the
defendant (§ 269, subd. (a)(5)).
The trial court sentenced Bryson to 37 years to life in prison.href="#_ftn2" name="_ftnref2" title="">[2] We affirm.

FACTUAL AND PROCEDURAL HISTORY

1. Facts.


The
first time Bryson sexually molested her, Savannah A. was approximately five
years old and spending the night at her aunt’s house. Savannah A. was sleeping with her
grandmother, the defendant and appellant Bryson, in Bryson’s bed. When Savannah A. woke up in the night, her
pajama bottoms and underwear had been removed and Bryson was touching Savannah
A.’s vagina with her finger. Bryson then
penetrated Savannah A.’s vagina and, to Savannah A., it felt as though Bryson’s
finger went “all the way” inside.
Savannah A. asked Bryson to stop “because it hurt.” Bryson, however, continued to penetrate
Savannah A.’s vagina and told Savannah A. that she was doing so because “God
wanted her to.” Savannah A. lay in the
bed crying until, at some point, Bryson stopped.

Bryson
then grabbed Savannah A.’s hand and placed her fingers inside Bryson’s
vagina. After Savannah A. moved her
fingers around for awhile, Bryson took Savannah A.’s hand from her vagina
and had Savannah A. touch her on her breasts.
When Bryson was finished, she told Savannah A. that, if she told anyone
what had happened, Bryson would kill Savannah A.’s mother. Savannah A. believed Bryson and this made her
extremely sad. At that time, Savannah A. thought that her mother was “the only
person [she] had.”

The
following day, Savannah A. did not tell anyone what had happened. She was “ashamed and scared, and [she] felt
it was [her] fault.”

Approximately
two years later, when Savannah A. was seven years old, Bryson moved into the
apartment in which Savannah A. lived with her mother, brother and younger
sister. Savannah A.’s brother had his
own room, her mother and sister slept in the living room and Savannah A. shared
a room with Bryson. Savannah A. slept in
the bottom of a bunk bed and Bryson slept in another bed right next to the bunk
bed. No one slept in the top bunk as
there was no mattress for it.

About
a month after Bryson moved into the apartment, Bryson again began to touch
Savannah A. between her legs. As time
went on, Bryson began to undress Savannah A. and, while Savannah A. stood
beside the bed, Bryson, who was sitting on the edge of her bed, penetrated
Savannah A.’s vagina with her fingers.
At the same time, Bryson made Savannah A. penetrate Bryson’s vagina with
her hand. Bryson told Savannah A. that
“God wanted her to . . . do” this and that if she did not do it, she was
Satan’s child and would go to hell.

While
they were living in the apartment, Bryson penetrated Savannah A.’s vagina, and
had Savannah A. penetrate hers, approximately four times a week. It tended to happen more frequently when
Savannah A.’s mother was out with friends or on a date. Savannah A. never told anyone about it
because she “was scared and ashamed.”

When
Savannah A. was nine or ten years old, she began to physically resist Bryson’s
advances. However, when she would refuse
to do what Bryson asked, Bryson would hold her down, then grab her hand and
force Savannah A. to touch Bryson’s vagina.
Savannah A. started to refuse Bryson’s demands because, as she was
getting older, she realized that “it wasn’t right to do.” Before that time, Savannah A. “thought [this]
was happening to everyone.”

When Bryson was
molesting her, Savannah A. would cry “silently.” The only noise being made was Bryson’s
breathing. When Savannah A. finally told
Bryson to stop touching her, she said it softly. “[I]t wasn’t loud enough for everyone to
hear.”

In
addition to the almost nightly abuse, Bryson would say things to Savannah A. At times Bryson would “preach the Bible,”
tell Savannah A. that she “ ‘need[ed] to do this,’ ” then “quote scripture from
the Bible.” In addition, Bryson told
Savannah A. that she “had to respect [her] elders.”

While
they were living together, Bryson would “[t]ease [Savannah A.] about
liking other girls” and called Savannah A. “gay.” Although she “didn’t really know what [that]
meant,” Savannah A. “felt like it was something negative.” Savannah A. felt that Bryson treated her differently from the way she
treated her other grandchildren and this upset Savannah A. Bryson would tell Savannah A. that she
“wasn’t a good child.” In addition,
Savannah A. would occasionally not tell Bryson the truth “about things” and
Bryson would tell her that she was a “bad child.”

There
were many times when Savannah A. was with her mother or her siblings and Bryson
was not around. Savannah A., however,
chose not to tell her family what Bryson had been doing to her.

When
Savannah A. was 11 years old, the family, including Bryson, moved from the
apartment into a house. At the house,
Savannah A. no longer shared a room with Bryson and Bryson’s abuse stopped.

Savannah
A. was approximately 16 years old when she finally told someone about the abuse
she had undergone at the hands of her grandmother. In her sophomore year of high school,
Savannah A. told her best friend, Marissa, in a text message. She told Marissa because they were telling
each other secrets and Savannah A. trusted Marissa. However, the two girls never really talked
about it.

At
the time Savannah A. told her friend Marissa about the molestation, Bryson was
living in New Mexico. Savannah A. wrote letters
to Bryson, fearing that if she did not write to her grandmother “people would
know.” At the time, Savannah A. was
aware of the fact that “people who . . . are molested often feel scared of
being judged[.]” In one letter, Savannah
A. wrote that she “hoped that [Bryson] ha[d] a good night[s] sleep, that she
ha[d] sweet dreams, not to let the bed bugs bite, and [that she] love[d] her
very much[.]”

When
she was a junior in high school, Savannah A. began to hurt herself. She cut herself on her arms and wrists with a
razor. Savannah A. indicated that she
was feeling “emotional pain at that time” and she was just trying to make it go
away. Savannah A. was suffering
from a great amount of stress. She, her
mother and her sister had moved back in
with her “abusive”href="#_ftn3" name="_ftnref3"
title="">[3]
father and she was having “boyfriend issues.”
As one example, she and her boyfriend had gone to a party. While they were there, they had sex. It had been Savannah A.’s first sexual
experience with a man and after it occurred, he stopped talking to her. The situation brought back feelings Savannah
A. had for Bryson; “[i]t made [her] feel disgusting, and . . . just dirty to
even have been with him because [she] had flashbacks of [Bryson].”

Savannah
A. decided to tell her best friend, Marissa, about the cutting. Marissa reacted by telling Savannah A. that
she wanted Savannah A. to “get some help and counseling.” Savannah A. decided to go to one of her
teachers, Miss L. Her friend, Marissa,
went with her and told the teacher what was happening with Savannah A. because
Savannah A. was “too scared” to tell the teacher herself. After Marissa told Miss L. Savannah A.’s
story, Savannah A. asked Miss L. if she could set up a parent-teacher
conference so that Savannah A. could tell her mother what had happened. Miss L. agreed and, a few days later in
Miss L.’s classroom, Savannah A. told her mother about Bryson’s sexual abuse. Savannah A.’s mother told Savannah A. that
she thought Savannah A. should report the incidents to the sheriff’s
department, but that it was Savannah A.’s choice whether or not to do so. After thinking about it for a few days,
Savannah A. decided to make a report.
When she went to the sheriff’s station, she spoke to a Sergeant
Czarnocki. She gave to Sergeant
Czarnocki a history of the situation and Sergeant Czarnocki made a report.

Although
she had started going to counseling, in January 2010 Savannah A. tried to
commit suicide. She took an overdose of
pills and “ended up going to the hospital.”
Savannah A. tried to kill herself because she “felt like [she] didn’t
belong on this earth.” She felt
“ashamed” of “what had happened to [her].”

After
attempting suicide, Savannah A. continued going to counseling and did not
attempt to hurt herself again. At the
time of trial, she was 18 years old and in college.

When
she went to the sheriff’s station, in addition to speaking with Sergeant
Czarnocki, Savannah A. spoke with a Deputy Little. According to Little’s report, Bryson molested Savannah only about
once a week, not three or four times a week.

Savannah
A. indicated that she understood that the allegations she was making were
serious and that, if shown to be true, carried serious consequences. Savannah A. understood that it was “a
crime to make a false report to the police.”

Natisha
H. is Bryson’s daughter and Savannah A.’s mother. For a period of several years, Natisha H., Bryson, Savannah A. and Natisha
H.’s other two children lived together in an apartment. At the apartment, Savannah H. and Bryson
shared a bedroom while Natisha H. and her younger daughter slept in the living
room. Natisha H.’s son slept in the
second bedroom. In March 2005, the
family moved out of the apartment and into a house and Savannah A. was no
longer required to share a room with Bryson.


While
they were living in the apartment, Savannah A. never told Natisha H. what
Bryson was doing to her. Natisha H.
found out about the abuse on October 20, 2009.
She had received a call from Savannah A.’s school indicating that one of
her teachers, Miss L., needed to speak with her. Natisha H. went to the school and went to
Miss L.’s room. When Savannah A. showed
up a short time later, she sat across from Natisha H., next to Miss L.,
and told Natisha H. that she had been molested.
Savannah A. was “shaking and crying” as she told Natisha H. what Bryson
had done to her. Natisha H. took Savannah
A.’s hands and began rubbing them and her wrists. Natisha H. had not noticed scars on
Savannah A.’s wrists before and it was at that time that she discovered
Savannah A. had been cutting herself.

Natisha
H. told Savannah A. that whether she wished to make a report of the incidents
to law enforcement was her choice. A few
days later, Savannah A. decided she wished to report the molestations and
Natisha H. took her to the sheriff’s department.

At
the time Savannah A. told Natisha H. about the molestation, she did not tell
Natisha H. about other “stresses in her life.”
She did not tell Natisha H. that she was “feeling stressful about moving
in with her father” or that she had sex with her boyfriend and that he had not
spoken to her since.

While
they were living together at the apartment, Bryson had told Natisha H. that she
had caught Savannah A. “touching [and kissing] a [female] friend and her own
sister.” Natisha H. was concerned about
where Savannah A. had learned this behavior so, on two occasions, she asked
Savannah A. if “she had been touched inappropriately by anybody.” On both occasions, Savannah A. told Natisha
H. that no one had inappropriately touched her on her private parts.

During
the time between 1998 and 2008, Natisha H. did not believe that
Savannah A. had seen any television shows, news articles or stories “that
had to do with females touching each other or molestation.”

Marissa
and Savannah A. were friends and had been friends in 2008 and 2009. They attended the same school, although
Savannah A. was in a grade below Marissa.
One evening during the fall of 2008, Marissa and Savannah A. were text
messaging. The two girls “got into a
deep conversation.” Marissa told
Savannah A. “[t]hat [she] had feelings for her.” Savannah A. then told Marissa that “she
needed to tell [Marissa] something.”
Marissa knew that “it was something serious because [Savannah A.] told
[her] that she didn’t want to be judged by it; so [Marissa] told [Savannah A.
that] it was okay to tell [her], and [Savannah A.] . . . stated that she
[had been] molested by her grandmother [Bryson] when she was a child.” Marissa encouraged Savannah A. to tell
someone about the molestation, but Savannah A. said that “she wasn’t ready.”

On
a later occasion when the two were text messaging, Savannah A. told Marissa
that she “was hurting herself.” Marissa
told Savannah A. that “she needed to stop or else [Marissa] was going to tell
somebody.” Although she had promised to
stop, in October 2009, Marissa saw cuts on Savannah A.’s arm. At that time, Marissa told Savannah A.
that they were going to let somebody, a teacher or counselor, know what
Savanna A. was doing.

Marissa
and Savannah A. approached their chemistry teacher, Miss L., who agreed to talk
with them. When they went to her
classroom after school and Miss L. asked what was going on, Savannah A. “broke
down in tears, . . . was shaking” and “couldn’t say anything.” Since Savannah A. could not speak, Marissa
told Miss L. that Savannah A. had been sexually molested as a child and
that she was hurting herself.

In
October 2009, Miss L. was a high school Chemistry teacher. Both Savannah A. and Marissa were
students in one of her classes. One day,
in the early morning, Marissa came to Miss L.’s classroom and told her
that “Savannah [A.] needed an adult to talk to, and [asked] if [Miss L.] would
be willing to do that since Savannah [A.] [had] said [that Miss L.] was
one [person] she would be comfortable talking [with].” The two girls went to Miss L.’s “classroom
later on that day and both talked to [her].
Savannah [A.] was very upset and very emotional about everything
she needed to talk to [Miss L.] about, and she told [Miss L.] she was having
trouble at home and a little trouble in school because of everything going on
at home[.]” Savannah A. told Miss
L. that “she had been molested by her grandmother.” “[B]ecause of Savannah [A.’s] emotional
state[,] she was having a hard time expressing everything she needed to
express” and Marissa “was kind of filling in the blanks for her.”

Miss
L. told Savannah A. that she needed to talk with her mother and let her know
what had been going on and that if Savannah A. wanted to use her classroom to
speak with her mother, she could. Miss
L. also told Savannah A. that if she wished her to be present while she spoke
with her mother, Miss L. would do that.
Later that day, Miss L. went and spoke with the head counselor at
school about the situation.

The
following morning, Savannah A. came by and told Miss L. that she would like to
use her classroom to speak with her mother.
A couple of days later, Savannah A. and her mother came in. Savannah A. again became very emotional and
had a difficult time speaking, “but she did tell her mother what had happened
and that her grandmother had molested her.
She [indicated that she] wasn’t comfortable at home and that . . . she
wanted her mom to know.” Although her
mother was upset and crying by the end of the conversation, she told Miss L.
that she was glad Savannah A. had told her.

The
first time Miss L. spoke with Savannah A., she had not noticed any marks or
scars on her arms. However, the second
time they spoke, when Savannah A.’s mother was present, Miss L. saw them.

In
2009, Los Angeles County Sheriff’s Department Sergeant Maria Czarnocki was
working on cases involving both sexual and physical child abuse. The sergeant had been working in that
department for 11 years and had handled approximately 85 cases each year. She was assigned as the investigating officer
in Savannah A.’s case. One relevant fact
discovered during the sergeant’s investigation was that Bryson had been born on
August 7, 1944.

The
sergeant spoke about “delay[ed] disclosure.”
This occurs “[w]hen the victim of child abuse does not disclose that
they have been victimized right away, they wait a period of time, sometimes
years.” Delayed disclosure is extremely
common. According to the sergeant, it
happens in nearly 80 percent of all child molestation cases and increases to
between 90 and 95 percent when the perpetrator is someone who is related to the
victim. Some of the reasons a child
might not disclose molestation include “[f]ear of retaliation, [particularly]
if it involves [a] family member; fear of ruining the family or feeling it’s
their fault the family is going to fall apart; fear of not being believed” as
well as “being ashamed or embarrassed about what happened, feeling like it’s
their fault” and “their own feelings of guilt, even though they should never
feel guilty[.]” The sergeant indicated
that “[t]he number one problem” with cases involving delayed disclosure is “the
inability to [obtain] physical evidence.”
One cannot rely on evidence of D.N.A or “fresh injuries.”

In
addition, the sergeant testified that, in cases where children are molested at
“a fairly young age,” it is “typical or common for those children to act out
sexually.” The reason this occurs is
because “that’s what they know. That’s
what they have learned.” The sergeant
also indicated that it is “common or typical for victims of molestation to
later on in life either inflict self injury or attempt suicide[.]” She indicated that “[i]t’s a coping mechanism
for them[.] . . . [They] hurt themselves
[with] a pain that they are in control of to try to make the pain that they are
not in control of go away.”

In
the present case, Sergeant Czarnocki spoke on the telephone with Marissa on or
about July 19, 2011. Marissa told the
sergeant that she had seen injuries on Savannah A.’s arms. She had then told Savannah A. that, if she
saw new injuries, she was going to tell someone. Not long after that, Marissa noticed more cut
marks on Savannah A.

2. Procedural
history.

Following
a preliminary hearing, on April 6, 2011 an information was filed charging
Bryson with: on or between May 31, 1998
and May 30, 2000, twice committing the felony of a lewd act upon a child under
the age of 14 (§ 288, subd. (a)) (counts 1 & 2); that on or between
May 31, 1998 and May 30, 2000, committing the felony of sexual penetration
by a foreign object upon a child under the age of 14 and more than 10 years
younger than she was (§ 289, subd. (j)) (count 3); that on or between May
31, 2000 and May 30, 2005, committing the felony of continuous sexual abuse
with a child under the age of 14 years, while she resided with and had
recurring access to the child (§ 288.5, subd. (a)) (count 4); and that on
or between May 31, 2002 and May 30, 2006, committing the felony of aggravated
sexual assault of a child under the age of 14 years when she was seven or more
years older than the child (§ 289, subd. (a), § 269, subd. (a)(5)) (count
5).

On
April 13, 2011, Bryson entered pleas of not guilty to each of the five counts,
denied all of the special allegations and rejected the People’s offer of 12
years in state prison. Although a jury
trial was set for June 2, 2011, the trial court granted Bryson’s motion to
continue the matter until July 18, 2011.
On July 18, after Bryson waived statutory time, trial was continued
to November 1, 2011 so that, in accordance with Bryson’s request and the trial
court’s order, Bryson could be interviewed by an expert, Dr. Haig J.
Kojian, who had been appointed pursuant to Evidence Code sections 730, 731 and
952. The court ordered that Dr. Kojian
be allowed to bring his laptop into the jail facility in order to evaluate
Bryson.

At
proceedings held on January 10, 2012,
the trial court ordered the matter continued to January 17 as “a
stipulated day 7 of 10 for jury trial.”
In 2010, Bryson had failed a polygraph test, then confessed to sexually
abusing Savannah A.href="#_ftn4" name="_ftnref4" title="">>[4] On January 17, 2012, defense counsel
made an Evidence Code section 402 motion “seek[ing] to exclude . . .
Bryson’s confession under the due process clause of the U.S. Constitution
because it was an involuntary statement that [had been] a product of
psychological coercion.” Defense counsel
argued that the trial court should exclude Bryson’s oral and written statements
because “she was deceived into believing in the validity of [a] polygraph,” she
was manipulated by the detectives when they referred to her “memory problems”
and “religion,” and misled when the detectives told her that she would be
“lying to the judge if she did not admit the conduct.” Bryson’s statements and letter were excluded
at trial.

After the People
presented their case, defense counsel made a motion for acquittal of the
offenses pursuant to section 1118.1, arguing that the People had failed to
provide evidence adequate to support them.
The trial court denied the motion.

On January 25,
2012, the trial court instructed the jury on the law of the case and the
parties made their arguments. At 2:30
p.m. the following day, the jurors indicated they had reached verdicts. The jury found Bryson guilty of both count 1
and count 2, each of which alleged the felony of committing a lewd act
upon a child under the age of 14 years (§ 288, subd. (a)); guilty of count
3, committing the felony of sexual penetration by a foreign object on a child
under the age of 14 years (§ 289, subd. (j)); guilty of the felony alleged
in count 4, the continuous sexual abuse of a child under the age of 14 years (§
288.5, subd. (a)); and guilty of count 5, the felony of aggravated sexual
assault of a child under the age of 14 years (§ 269, subd. (a)(5)).

After Bryson
waived time, sentencing in the matter was set for March 2, 2012. In the meantime, the trial court ordered a
probation report, a “Static 99” report and that each party file points and
authorities with regard to Bryson’s sentence.
On March 1, 2012, it was determined that the court was not available to
sentence Bryson on March 2, so, with Bryson’s and both counsel’s consent, the
matter was set for March 7, 2012. The
trial court indicated that it had received all of the requested reports as well
as the sentencing memoranda from the parties and was reviewing the documents. In addition, the trial court indicated that
it would make its “best effort to accommodate all the family and witnesses” who
wished to make comments.

Bryson was
sentenced on March 14, 2012. After
reviewing the probation and Static 99 reports, reading each party’s sentencing
memoranda, reviewing letters from family and friends and listening to
witnesses, the trial court determined the factors in aggravation far outweighed
those in mitigation. Accordingly, it
imposed the high term of 16 years as the base term for Bryson’s conviction of
count 4, continuous sexual abuse in violation of section 288.5, subdivision
(a). For her convictions of committing
lewd acts upon a child in violation of section 288, subdivision (a) as alleged
in counts 1 and 2, the court imposed consecutive terms of one-third the
mid-term, or two years as to each count.
With regard to count 3, sexual penetration by a foreign object in
violation of section 289, subdivision (j), the court imposed a consecutive
term of one-third the mid-term, or two years.
Finally, as to count 5, the aggravated sexual assault of a child in
violation of section 269, subdivision (a)(5), the court imposed a consecutive,
indeterminate term of 15 years to life.
In total, Bryson was sentenced to 37 years to life in prison.

Bryson was given
presentence custody credit for 365 days actually served and 54 days of
good time/work time, for a total of 419 days.
The trial court ordered Bryson to pay a restitution fine in the amount
of $7,000 (§ 1202.4, subd. (b)), a stayed parole revocation restitution fine in
the amount of $7,000 (§ 1202.45), a $200 court security fee (§ 1465.8, subd.
(a)), a $150 criminal conviction assessment (Gov. Code, § 70373) and a
$300 sexual habitual offender fine.

Bryson filed a
timely notice of appeal and request
for appointment of appellate counsel on March 14, 2011.

>CONTENTIONS

After
examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the record.

By notice filed
September 20, 2012, the clerk of this court advised Bryson to submit within 30
days any contentions, grounds of appeal or arguments she wished this court to
consider. At her request, Bryson was
granted an extension of time to November 9, 2012 within which to file her
brief. On April 16, 2012, Bryson
submitted a letter in which she stated that her accuser was a liar and that she
was “without a doubt innocent.” In
addition, she claimed that her counsel had been ineffective for failing to show
her innocence at trial.

Bryson’s
contentions are without merit.
Initially, Bryson has failed to show that her trial counsel was not a
competent advocate and failed to argue “ ‘all issues that [were] arguable.’ ” (In re
Spears (1984) 157 Cal.App.3d 1203, 1210.)
Moreover, after hearing all the testimony, the jury, the trier of fact
in this matter, determined Bryson was guilty of all the crimes charged. (See Rockwell
v. Superior Court (1976) 18 Cal.3d 420, 425, fn.1 [The general law applying
to the conviction of a crime is that “ ‘the trier of fact shall be a jury
unless a jury is waived by the defendant . . .’ ”].)

>REVIEW ON APPEAL

We have examined
the entire record and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

>DISPOSITION

The judgment is
affirmed.

>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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> ALDRICH, J.





We concur:





CROSKEY,
Acting P.J.











KITCHING,
J.