People v. Bredemeier

• Decision Date: 09 June 2021
• Docket Number: E074436
• Citation: People v. Bredemeier, E074436 (Cal. App. Jun 09, 2021)
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY BREDEMEIER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY BREDEMEIER, Defendant and Appellant.

E074436

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 9, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. SWF1807737)

OPINION

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed as modified.

Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Michael Ray Bredemeier molested three young girls (J.P. [prior uncharged], Z.R., & M.D.) during separate times in his life. On October 30, 2019, a jury convicted him as follows: In connection with his acts against Z.R., the jury convicted defendant of one count of sexual penetration with a child 10 years old or younger (Pen. Code,¹ § 288.7, subd. (b), count 1), five counts of committing a lewd act involving a child under the age of 14 years (§ 288, subd. (a), counts 3-7), and one count of annoying or molesting a child under the age of 18 years (§ 647.6, subd. (a), count 8).² In connection with his acts against M.D., the jury convicted defendant of one count of committing a lewd act involving a child under the age of 14 years (§ 288, subd. (a), count 9). Also, the jury found a multiple victim enhancement true as to these offenses. (§ 667.61, subd. (e)(4).)

The trial court sentenced defendant to state prison for an aggregate term of 90 years to life. The court also imposed various fines, fees, and assessments, including a $500 sex offender fine (Pen. Code, § 290.3), a $270 criminal conviction assessment (Gov. Code, § 70373), a $320 court security fee (Pen. Code, § 1465.8), a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $1,800 fine payable to the "Division of Adult Institutions" (§ 288, subd. (e)), and a suspended $2,100 parole revocation restitution fine (Pen. Code, § 1202.45). The court found that defendant has the ability to pay.

On appeal, defendant contends: (1) the evidence is insufficient to support his convictions of one count of sexual penetration and two counts of committing a lewd act involving Z.R.; (2) the trial court erred in admitting (a) expert testimony on child sexual abuse accommodation syndrome (CSAAS), (b) evidence of his prior uncharged sexual offenses against J.P., and (c) pornographic materials on his cell phone; (3) he should be granted a new trial because he was not sentenced within the statutory time; (4) the trial court erred in imposing certain fines and fees; and (5) the cumulative effect of the trial court's errors denied him his constitutional right to due process and a fair trial. After examining the record, we conclude the trial court erred in calculating the criminal conviction assessment (Gov. Code, § 70373) and the suspended parole revocation restitution fine (Pen. Code, § 1202.45), and the errors must be corrected. We modify the judgment accordingly, and we affirm the judgment as modified.

I. PROCEDURAL BACKGROUND AND FACTS

A. Background.

Defendant was born in Kansas in 1953. By the 1980s, he was living in Murrieta, California, with his wife and children.

B. The Prosecution's Case.

1. Molestation involving J.P. (prior uncharged offenses).

Defendant was raised in a close-knit family. During a family gathering, defendant (age 16) was playing frisbee with his cousins, including seven-year-old J.P. At some point, defendant took the frisbee, ran into the house, and upstairs into a bedroom. J.P. followed. Once J.P. was inside the bedroom, defendant locked the door and jumped onthe bed. He unzipped his pants and masturbated to ejaculation. He encouraged J.P. to "see what he was doing" and "asked [her] to touch it." She refused.

When J.P. was eight years old and at a family campout, she told a cousin and the cousin's friend what defendant had done. The girls found defendant by the riverbank and asked him to show them what he had shown J.P., but he refused. The cousin and her friend left the riverbank, leaving J.P. Defendant told J.P. that what he did was only for her. He then unzipped his pants and proceeded to masturbate. He pulled her over, sat her on him, and asked if it felt good. She said, "'No, it hurt[s],' and 'Let me go. Let me go.'" He let her go, and she "took off."

When she was nine or 10, J.P. spent the night at her aunt's home, where defendant also lived. While she was sleeping on the couch, defendant pulled down her pants and proceeded to perform oral sex on her. He stopped when she screamed loud enough for others to hear. On another occasion, when defendant was babysitting J.P. and her brothers, defendant went into her bedroom and tried to pull her pants down, but he stopped when J.P. started screaming.

J.P. never reported defendant's actions because she was afraid of what it would do to her family.

2. Molestation involving M.D. (count 9).

In 2000, when M.D. was 11 years old and in the fifth grade, she became good friends with defendant's daughter. One night, when M.D. spent the night at defendant's home, she woke up to defendant, who was around 47 years old at the time, lying behind her on the floor "with his fingers rubbing [her] vagina." Defendant was wearing a robe,which was open, and she could feel his body against her. M.D. sat up quickly and asked why her pajama bottoms were pulled down. Defendant stood up, closed his robe, responded, "'I don't know,'" and left the bedroom. M.D. woke up defendant's daughter, told her what had happened, and said she wanted to go home. The daughter thought M.D. had a nightmare and told her that "'everything's fine.'" M.D. never reported the incident because she assumed no one would believe her. After she graduated from high school, M.D. told some friends about what had happened. Her friends convinced her to tell her mother, and her mother encouraged her to report it to the police.

3. Molestation involving Z.R. (counts 1-8, inclusive).

Z.R. lived with her adoptive family in Temecula. Through her adoptive family, she met defendant, a close friend and coworker of her adoptive father. In December 2012 or January 2013, defendant (around 59 years old) took Z.R. (around nine years old) and her siblings to see the movie, "Monsters, Inc. 3D." During the movie, defendant put his hands "fully in [her] pants from the top," and asked her to kiss him. She testified that he touched her vagina; however, she did not know if this was the time his fingers went inside her "because [she] was young, but [she] believe[d] so." Defendant told Z.R. that he touched her because "sometimes he thought [she] was hotter than his wife." The same type of touching happened again when she went to see another movie, "Cowboys & Aliens," with her family and defendant. She did not remember if he put his finger inside her vagina during this trip to the movies.

During the summers of 2013, 2014, 2015, and 2016, Z.R.'s adopted family would go to defendant's home to swim in his pool. She recalled a time, before her 14thbirthday, when defendant joined her in the spa. He touched her on her bathing suit bottoms near her vagina and asked if she had hair down there. During another time in the spa, defendant "stuck his hand in [her] bathing suit bottoms." Z.R. testified that defendant touched her in the spa "more than two" times, but she could not recall it happening "more than three" times. She also testified that throughout four consecutive summers, defendant "repeatedly" touched her, near her vagina, in the spa.

Z.R. recalled that when defendant took her out for her 14th birthday, he told her she could ask him questions about sex, if she had any, and he would help her. By February 2017, Z.R. had moved to Indio to live with her biological grandmother because she "was having problems" and "needed a fresh start." She missed defendant, who was like a grandfather to her, so she stayed in touch with him over social media. In July 2018, Z.R.'s grandmother found text messages from defendant to Z.R., "telling [Z.R.] that he loved her [and] missed her." When the grandmother discussed the messages with Z.R., she disclosed that defendant had touched her, and the grandmother called the police. During her forensic interview, Z.R. revealed incidents when defendant touched her at the movies and in the spa. When asked about any other events, she said he had also inserted his finger in her vagina while they were in the "cry room" at church.

4. Evidence from defendant's cell phone.

On October 24, 2018, the Riverside County Sheriff's Department executed a search warrant at defendant's home and subsequently analyzed the data on his cell phone. The phone had been used to access pornographic videos entitled, "'Father Fucks Schoolgirl Daughter'" and "'Father and Daughter Live on Cute Baby Cam.'" TheWeb site links were no longer active, and officers were unable to view the videos. In the cell phone's notes section, there were references to the following self-help books: "The Bondage Breaker: Overcoming Negative Thoughts, Irrational Feelings, and Habitual Sins," "Healing the Wounds of Sexual Addiction," and "Cutting It Off: Breaking Porn Addiction and How to Quit for Good." The Internet history on defendant's cell phone indicated searches for things like "'father fucking daughter,'" "'she male,'" "'Japanese women,'" and "'young girls.'"

C. Defense Case.

Although defendant did not take the stand, he did present the following defense:

C.R., Z.R.'s brother, testified about going to the movies with defendant. C.R. stated...