People v. Maldonado CA6

Filed 12/18/13 P. v. Maldonado CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, H038383 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC961866)

v.

RICHARD MALDONADO,

Defendant and Appellant.

Defendant Richard Maldonado was convicted after jury trial of one count of lewd or lascivious act on child under the age of 14. (Pen. Code, § 288, subd. (a).) On appeal, defendant asserts the trial court erred in excluding evidence that the victim J.D., had been molested by another man. In addition, defendant argues the court’s no contact order pursuant to Penal Code section 1202.05 must be narrowed. STATEMENT OF THE FACTS AND CASE From January to April 2009, Kimberly L. lived with defendant in defendant’s two- bedroom mobile home. Her seven-year-old daughter J.D., and her five-year-old daughter C.D. also lived there, and C.D.’s father Steven lived there for a short period of time. Kimberly and her daughters occupied one of the bedrooms in the mobile home. During this time, Kimberly did not work, and had a serious methamphetamine addiction. J.D. and C.D. were removed from Kimberly’s care in April 2009 because of

her drug problem. The girls eventually went to live with Steven’s sister, Christina C. and Kimberly was allowed supervised visits with them between April and July 2009. At the end of June or beginning of July 2009, C.D. approached Christina and said she wanted to tell her something important. C.D. told Christina that while she was living with her mother in defendant’s mobile home, defendant touched her in a way that made her feel uncomfortable. C.D. said that defendant would lie on the couch with a sheet over him and would sit C.D. on his lap so that his “private part[]” was rubbing against her “butt.” C.D. said that sometimes defendant would “tickle her cooch,” which was her word for vagina. C.D. was emotional and crying when she talked to Christina and told Christina that she had not reported this to her mother, because she did not trust her mother and was afraid that her mother would accuse her of lying. Christina called the social worker assigned to their case to report what C.D. has told her. A few days after C.D. talked to Christina, J.D. made a similar disclosure about defendant’s inappropriate touching. J.D. said defendant would hold her by her feet and “tickle her cooch” while swinging her back and forth. Within a day or two of C.D. and J.D.’s disclosures to Christina, the girls were interviewed by police. C.D.’s first disclosure to Christina happened on the same day or the day after Christina and girls ran into Kimberly at McDonald’s. Christina learned that Kimberly might be released from her drug rehabilitation program soon, and was concerned about the girls returning to her care. After running into Kimberly, C.D. expressed reservation to Christina about returning to Kimberly’s care. In October 2010, defendant was charged by information with two counts of lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). Count one was alleged as to victim J.D., and count two was as to victim C.D. Defendant was found guilty after jury trial of count 2; the jury was unable to reach a verdict as to count 1, and court declared a mistrial as to that count.