Filed 9/25/20 P. v. Rosacia CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B298530
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA086711)
v.
JAYSON GAELA ROSACIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory A. Dohi, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Heidi Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Jayson Gaela Rosacia, who was convicted of
multiple counts of sexual assault against his minor daughter,
appeals from a judgment of conviction following a jury trial.
Defendant contends that the trial court erred in admitting
evidence of his possession of child pornography and his search of
internet sites involving child pornography and incest. We affirm.
II. BACKGROUND
A. Procedural History
On February 15, 2019, the Los Angeles County District
Attorney charged defendant by amended information with 11
counts of aggravated sexual assault upon a child under the age of
14. Specifically, the information charged defendant with rape
(Pen, Code,1 § 269, subd. (a)(1); counts 1 through 3, 11 through
14); oral copulation (§ 269, subd. (a)(4); counts 4 and 10); and
sexual penetration (§ 269, subd. (a)(5); counts 5 and 9). The
information also alleged one count of oral copulation or sexual
penetration with a child 10 years old or younger. (§ 288.7,
subd. (b); count 8.)
On May 8, 2019, a jury returned a verdict finding
defendant guilty of all 12 counts. At the May 30, 2019,
sentencing hearing, the trial court sentenced defendant to an
aggregate term of 180 years to life in prison.
1 Further statutory references are to the Penal Code unless
otherwise stated.
2
B. Prosecution Evidence
1. August 29, 2017, Interviews of J.R.
On August 29, 2017, officers with the Los Angeles Police
Department and a nurse interviewed J.R., who was then 13 years
old. J.R. stated that she lived with defendant, her mother, and
two younger siblings.
J.R. reported that defendant had “tricked [her] to have sex
with him.” When asked if she knew what sex was, J.R. stated it
was defendant putting “his private thing inside [her].” J.R.
further explained that defendant did not use condoms when he
had intercourse with her, but on two occasions, he gave her birth
control pills.
When J.R. was about seven years old, defendant began
touching her vagina and forcing her to orally copulate him. J.R.
recalled one instance when defendant forced her to orally
copulate him in his car. On another occasion, defendant, who
was a videographer for pornographic movies, recorded himself
while he attempted to penetrate J.R.’s vagina with his penis.
Sometime in August or September 2015, when she was in
the sixth grade, J.R. told defendant that she had arm wrestled a
boy at school. Defendant told J.R. that she could become
pregnant from the arm wrestling unless she had sex with
defendant. J.R. initially refused to comply, but defendant
responded that he would kill himself if she did not do as he
asked. J.R. believed him. Therefore, while J.R.’s mother was
away, J.R. had intercourse with defendant. Afterwards,
defendant told J.R. that if her mother learned about what had
happened, she would kill them both. Defendant also told J.R.
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that a guard would be watching her to make sure that she did not
tell anyone what he had done.
A few days later, defendant told J.R. that she had to have
sex with defendant at least four times if she wanted to prevent
becoming pregnant. He then raped her in the bathroom and
again in his bedroom. J.R. would wake up to defendant touching
her or taking off her underwear. Defendant would then leave or
tell her that she was dreaming.
When J.R. was 12 years old, defendant put his weight on
her, covered her mouth, and raped her. In August 2017,
defendant raped her again.
On August 28, 2017, the day before her interview with the
police, defendant, after learning that J.R. had a boyfriend, told
J.R. to get into the car so that they could talk. Defendant then
forced J.R. to orally copulate him as punishment for having a
boyfriend. Defendant also touched J.R.’s genitals and digitally
penetrated her vagina.
Later that day, J.R. went to bed at 9 p.m., and awoke as
defendant entered her bedroom. Defendant forced J.R. to touch
his penis while he fondled her genitals. At 1 a.m., defendant
again forced J.R. to touch his penis while he touched her vagina.
Defendant then raped her and told her to moan like she enjoyed
it. Defendant ordered her not to cry and threatened that the
more she cried, the more he would “do it to [her].” In the
morning, J.R. woke up in pain.
The following day at school, J.R. told her friends, H.S. and
S.A., and her cousin about what defendant had done the prior
day. All four girls walked to the counselor’s office, where J.R.
reported defendant’s abuse. The counselor called the Department
of Children and Family Services and the police.
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2. Physical Examination and DNA Evidence
On August 29, 2017, a nurse examined J.R. and observed
four injuries that were consistent with recent sexual penetration.
The nurse also administered a rape kit to J.R. and swabbed her
mouth, face, breasts, genitalia, left inner thigh, right leg, right
hip area, lower back, lower abdomen, and buttocks.
The nurse also examined defendant, swabbing his fingers,
fingernails, genitals, face, cheeks, and neck. The swab of
defendant’s penis yielded a major profile and a minor profile,
which meant that one DNA profile contributed more to a sample
than another. The major profile belonged to J.R.2 The minor
profile belonged to defendant.
DNA from J.R.’s vaginal swab matched defendant’s DNA.
Swabs of J.R.’s left breast, face, and left thigh also matched
defendant’s DNA. Items taken from J.R.’s bedroom, including
her underwear, blanket, and pillow cases, contained sperm
matching defendant’s DNA.
3. H.S.’s Testimony
H.S. and J.R. were close friends when the two were in
middle school. In December 2015, when they were both in the
sixth grade, J.R. told H.S. about “what [defendant] was doing to
her.” J.R. told H.S. that if J.R. wanted something, like candy, she
had to do something for defendant in return, such as orally
copulate him. J.R. also reported that she would wake up in the
2 The forensic officer testified that the chance the DNA
profile belonged to someone other than J.R. was one in a
centillion.
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middle of the night and find defendant on top of her, “near her
private area.” On other occasions, J.R. would report that
defendant was “doing it again.” H.S. encouraged J.R. to report
defendant. J.R. responded that if H.S. told anyone about the
abuse, J.R. would stop being her friend.
In the spring of 2018 (after defendant was arrested for
abusing J.R.), J.R. told H.S. that she had received a letter from
defendant asking her to help him get out of jail. J.R. told H.S.
that she felt guilty that defendant was in jail.
In the beginning of the ninth grade, J.R. told H.S. that she
had made up the abuse. H.S. reminded J.R. that J.R. had been
crying about defendant’s abuse for years. H.S. and J.R. are no
longer friends and J.R. has blocked H.S. from all contact with
her.
4. S.A.’s Testimony
S.A. and J.R. were friends in middle school. In sixth grade,
a month after winter break, J.R. told S.A. that according to
defendant, the only way J.R. could prevent becoming pregnant
from arm wrestling was to have sex with defendant. J.R.
regularly told S.A. that defendant was forcing her to have sex
with him, and that this was occurring on a weekly basis. J.R.
said that she was tired of the abuse and wanted to take her own
life.
5. Police Interview of Defendant
On August 29, 2017, defendant was interviewed by a police
detective. The interview was audio recorded and played for the
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jury. Defendant initially denied abusing J.R., but said that he
“deserve[d] whatever happens.” In describing his conduct,
defendant stated, “But what I did to my daughter, by the way, is
just, I was hurt. I, I’m not a pedophile.”
Defendant then admitted to forcing J.R. to orally copulate
him and explained that he did so because he was angry that she
had a boyfriend. He directed J.R. not to tell anyone what he had
done and then had intercourse with J.R. twice later that same
night.
Defendant further admitted that he would have sex with
J.R. “whenever [they were] alone.” Defendant recounted an
incident in June 2017 when he massaged her, digitally
penetrated her, and engaged in intercourse with her because he
believed she enjoyed it. Defendant stated, “I realize that I really
deserve it. [¶] . . . [¶] I’m not even trying to defend myself.”
Defendant began touching J.R. when she reached puberty at age
11 or 12.
6. Jailhouse phone calls
Defendant called his wife A.R. more than 1,000 times while
in custody. On September 1, 2017, A.R. told defendant: “‘You
have an illness mentally. That’s why you were able to do this.’”
Defendant agreed, stating, “‘Yes. It’s so.’” A.R. also said, “‘I
really pity [J.R.],’” to which defendant responded: “‘Me, too. I
pity her so much. That’s why, you know, I had long-waited to
turn myself in.’”
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7. J.R.’s Recantation
On October 25, 2018, J.R. told a police officer that she had
lied about defendant abusing her. According to J.R., defendant
had cheated on her mother and directed J.R. to tell the police
that he had raped her so that he could go to jail.
At the December 7, 2018, preliminary hearing, J.R. refused
to answer most questions.3 J.R. repeatedly stated that defendant
did not do anything and that she had lied. J.R. testified she
made up the allegations because she was mad at defendant for
cheating on her mother. J.R. denied ever telling her friends that
defendant had abused her.
8. Dr. Susan Hardie
Susan Hardie is a developmental psychologist who testified
about child sexual abuse accommodation syndrome (CSAAS).
Hardie described CSAAS as a model for psychologists to disabuse
common misconceptions about how child sexual abuse victims
behave. Among other things, child victims often delay reporting
sexual abuse until adolescence and first report the abuse to their
friends. Hardie also explained that children often retract their
allegations of abuse when their family is “blown to pieces.”
Further, child victims feel guilt and shame for, in their view,
having caused the abuse.
3 J.R.’s preliminary hearing testimony was read to the jury
because she was unavailable to testify at trial.
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9. Computer evidence of child sexual abuse material
United States Secret Service agent Paul Thomas testified
that he and other members of the Los Angeles Electronic Crimes
Task Force searched defendant’s digital devices for images and
data. Thomas had six years of experience conducting computer
forensic examinations and had specialized training and
experience in child pornography investigations. Thomas
searched defendant’s computers for the terms: “PTHC,” which
stands for preteen hardcore; “Lolita,” which is a common child
pornography-related search term; and “pedophile.” These
searches yielded at least 39 internet artifacts (files, programs,
documents, or texts). Thomas also inspected the computers for
prior Google searches and found 55 searches related to child
pornography topics.4 Thomas also observed that defendant had
visited a particular website called motherless.com and had “hit”
266 titles of videos associated with that site.5
Thomas also found carved video files, which are remnants
of deleted files. One such file was a video that included sexually
explicit images of fingers digitally penetrating the vagina of a
“very, very young” girl, as well as a close-up of the victim’s
vagina. The exhibit was marked but not shown to the jury.
Thomas testified that based on the size of the vagina compared to
4 These searches included: “real incest fuck,” “middle-
schoolers having sex,” “is a 12-year old a child,” “why is incest
illegal,” “why middle school girls are hot,” “incest mainstream
movies,” “real father-daughter sex,” and “nonconsensual sex.”
5 The videos included “Dad fucks Daughter Video Claim,”
“Dad Fucks Daughter While Mom is Working,” and other similar
titles.
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the size of the hand and the absence of pubic hair, he believed
that the victim was a child.
Detective Jerry Kowalsky was also a member of the Los
Angeles Electronic Crimes Task Force and conducted a search of
defendant’s cell phone. On August 9, 2017, someone using
defendant’s cell phone conducted nine searches related to incest
and rape of a daughter. On August 29, 2017 (the day after
defendant’s most recent rape of J.R.), someone using defendant’s
cell phone searched how Plan B worked, how long sperm took to
swim, and how long sperm could survive outside the body.
C. Defense Evidence
Defendant testified at trial. He admitted to conducting the
Google searches about which Thomas testified but explained that
he did so because he wanted to create something “cinematic”
about incest between a stepfather and daughter. When asked
about one of the items retrieved from his computer entitled
“‘R@ygold, kinderficker PTHC Child Lover Cum Three Year Old
Jennifer,’” defendant explained that he visited this site because
J.R. told him about it when she was eight or nine years old.
Defendant explained that he thought “PTHC” was short for
“pathetic” and, even though that search term appeared hundreds
of times across his digital devices, he had no idea that it was
short for “‘preteen, hard[]core’” until he heard Thomas’s
testimony. As to the telephone search about Plan B, defendant
testified that he conducted that search because he wanted to
purchase the medication for his girlfriend.
According to defendant, he falsely confessed to raping J.R.
because he did not want J.R. to get in trouble for lying to the
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police and because he was afraid that his wife would find out that
he had cheated on her.
Defendant claimed that he told J.R. what to say to the
police and went over the details of the story with her so that their
statements to the police would match. He then spat on her hand
and told her to rub it wherever she wanted, her “‘body . . . boobs,
whatever.’”
A defense investigator testified about her interview with
J.R.; J.R. told the defense investigator that she had found a
condom in the trash can of the bathroom and poured the contents
of it onto her legs.
III. DISCUSSION
Defendant contends that the trial court erred by admitting
evidence that he possessed images of child pornography and
conducted searches for child pornography.6 “A trial court’s
6 Evidence Code section 1101, subdivision (b) provides:
“Nothing in this section prohibits the admission of evidence that
a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably
and in good faith believe that the victim consented) other than
his or her disposition to commit such an act.”
Evidence Code section 1108, subdivision (a) provides, “In a
criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant's commission of another sexual
offense or offenses is not made inadmissible by [Evidence Code]
[s]ection 1101, if the evidence is not inadmissible pursuant to
[Evidence Code] [s]ection 352.”
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rulings admitting evidence under Evidence Code sections 1101
and 1108 are reviewed for abuse of discretion.” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 824.)
A. Background
Prior to trial, defendant moved to exclude evidence seized
during the search of his digital devices. The prosecutor argued
that the images and search terms were admissible pursuant to
Evidence Code section 1108. The prosecutor conceded that
introduction of the actual images of child pornography would be
“inherently inflammatory” and therefore offered to limit the
evidence to testimony about the images. Defense counsel
contended that the images were not of children but adults and
requested that the court view the videos to determine whether
they depicted children. The prosecutor then submitted still
images from four videos for review by the court.7 The court
reviewed the images and concluded that they depicted children,
not adults. As we discussed above, the prosecution ultimately
elicited testimony about just one of the videos, which depicted the
digital penetration of a child victim. As to this image, the court
concluded that it “clearly show[ed] digital penetration of a young
person’s sex organs.” The court ruled that defendant’s possession
of the images was admissible under Evidence Code section 1108
but limited the evidence to testimony about the images and
excluded admission of the actual images, pursuant to Evidence
Code section 352. The court also concluded that the search terms
7 Only the stills from the single video about which the
prosecution elicited testimony is in the record. The stills of the
other three videos are not part of the record on appeal.
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were admissible pursuant to Evidence Code section 1101, as
evidence of motive.
Defense counsel never articulated to the trial court why the
Google search terms should not be admitted at trial.
B. Analysis
Defendant contends that evidence regarding the files,
including images, seized from his computers and telephone as
well as the search terms “did not qualify as admissible criminal
disposition evidence under [Evidence Code] section 1108, were
insufficiently probative under [Evidence Code] section 1101[,]
subdivision (b), and were unduly prejudicial under [Evidence
Code] section 352.” “‘In determining the admissibility of
evidence, the trial court has broad discretion . . . .’” (People v.
Jackson (2016) 1 Cal.5th 269, 320.)
Defendant never articulated before the trial court why the
Google search terms were inadmissible and has arguably
forfeited that argument on appeal. (People v. Fuiava (2012) 53
Cal.4th 622, 670.) Even if not forfeited, we reject defendant’s
argument on its merits. Testimony about the images and search
terms was admissible pursuant to Evidence Code section 1101,
subdivision (b). The information charged defendant with three
counts of sexual penetration of J.R. As the court instructed the
jury, the prosecution was required to prove that when defendant
sexually penetrated J.R., he did so “for the purpose of sexual
abuse, arousal, or gratification.” Accordingly, defendant’s search
for and possession of child pornographic images was relevant to
defendant’s motive and intent. (Evid. Code, § 1101, subd. (b); see
also People v. Brown (2004) 33 Cal.4th 892, 901 [“If a judgment
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rests on admissible evidence it will not be reversed because the
trial court admitted that evidence upon a different theory”].)
Further, to the extent defendant argues that admission of
this evidence was unduly prejudicial, we disagree. The testimony
regarding the search terms and images was relatively brief,
especially compared to the numerous witnesses who testified
about defendant’s abuse of J.R. We also disagree with
defendant’s contention that jurors were likely to find defendant’s
possession of child pornography more repugnant than defendant’s
years-long and multiple acts of rape against his daughter. We
thus agree with the trial court that the admission of such
evidence was not unduly prejudicial. (People v. Nguyen (2010)
184 Cal.App.4th 1096, 1117; accord, People v. Hernandez (2011)
200 Cal.App.4th 953, 965–966.)
Finally, even if the trial court had abused its discretion in
admitting the evidence, and we conclude it did not, any such
error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
As detailed above, J.R.’s recorded statements to the police, her
statements to her friends, defendant’s recorded confession to the
police, defendant’s jailhouse calls to his wife, the inherent
implausibility of defendant’s testimony at trial, and physical
evidence demonstrating recent trauma to J.R.’s vagina, coupled
with DNA evidence corroborating defendant’s rape of J.R.,
constituted overwhelming evidence of defendant’s guilt.
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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