P. v. Bailey













Filed 10/12/10 P. v. Bailey CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. JASPER BAILEY, Defendant and Appellant.

H034215 (Santa Clara County Super. Ct. No. CC817209)

I.
Introduction

A jury found defendant Jasper Bailey guilty of
one count of aggravated sexual assault of
a child under the age of 14 years (Pen. Code, § 269, count 1)^[1] and
two counts of rape by force, violence, duress, menace, or fear (§ 261, subd.
(a)(2), counts 2 & 3). The victim of
the crimes was defendant's daughter (daughter).
On appeal, defendant challenges the trial court's exclusion of testimony
from daughter's support person, the use of CALCRIM No. 207, and the admission
of an uncharged sexual offense under Evidence Code section 1108. We find no error and affirm.

II.
Procedural Background

The information contained three counts: counts 1 and 2 alleged aggravated sexual
assault of a child under the age of 14 and count 3 alleged rape by means of
force, violence, duress, menace, or fear.
Trial commenced on January 22,
2009. The principle disputes
at trial concerned the overall truth of daughter's allegations, how many
assaults had actually occurred, and, if there had been three assaults, whether
the first two had occurred prior to daughter's 14th birthday. Two of the trial court's evidentiary rulings
are pertinent here. First, the court
excluded the testimony of daughter's support person, Diana Traub, a counselor
from Eastfield Ming Quong, who would have testified about inconsistencies in
daughter's statements to her concerning the number and timing of the alleged
assaults. Second, the trial court
allowed the prosecution to introduce evidence, pursuant to Evidence Code
section 1108, that defendant had raped his stepdaughter (stepdaughter) seven
years earlier.

The jury found defendant guilty of counts 1 and
3. The jury found defendant not guilty
of count 2 but guilty of the lesser offense of rape, apparently concluding that
the prosecution had proved that daughter was raped but not that she was under
the age of 14 at the time. The trial
court sentenced defendant to prison for two consecutive six-year terms for the
section 261 rapes consecutive to an indeterminate term of 15 years to life for
the rape of a child under the age of 14.

III.
The Evidence at Trial

1.
Daughter

Daughter was born in Africa
in July 1992. She lived in refugee camps
in Liberia and
the Ivory Coast
with defendant, her mother, her brother, and stepdaughter. Daughter was 11 years old when she and
defendant immigrated to the United States,
settling in San Jose where they lived
in a one-bedroom apartment. Stepdaughter
had immigrated around the same time, settling in North
Dakota.
Daughter's mother and brother had not been permitted to leave Africa
when defendant and daughter left and so they stayed behind.

Daughter had had no schooling in Africa
other than a year of kindergarten. Her
first language was not English but one of the traditional languages of Africa. She was placed in the fifth grade in San
Jose but struggled so much that she repeated her fifth
grade year. Defendant was very critical
of the problems daughter had at school.
He called her stupid, and insisted her problems were behavioral
only. He was very strict with her. He struck her as often as twice a day,
usually with a belt to the hand.
Daughter complained to school personnel of defendant's abuse and she was
taken into protective custody twice but both times she was returned to
defendant's care.

Daughter judged the timing of past events based
upon her grade in school. Daughter was
11 and 12 years old during her two fifth grade years, 13 when she was in the
sixth grade, and 14 when she was in seventh grade. During her fifth and sixth grade years,
daughter lived with defendant in a one bedroom apartment on Sixth
Street.
When she was in the seventh grade they lived in a similar apartment on Seventh
Street.

Daughter testified that when she was in the
sixth grade, defendant came to her after she had gone to bed for the night and
woke her up by taking off her pajamas.
He then lay down on top of her. Daughter struggled but he held her hands and
covered her mouth with his arm and put his penis into her vagina. She felt something wet, then he got up. He told her that if she told anyone, he would
beat her and send her back to Africa.

The prosecutor asked daughter how many times
defendant had forced her to have sex with him and she replied, â€