People v. Vierra
| Decision Date | 09 February 2023 |
| Docket Number | B314070 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAVID VIERRA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. VA153998, Roger T. Ito, Judge. Reversed in part, sentence vacated, and remanded with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted David Vierra of committing 13 sexual offenses against four victims, most of whom were minors. On appeal Vierra argues some of his convictions are not supported by substantial evidence, the trial court made instructional errors, the court admitted improper expert testimony, the prosecutor engaged in misconduct, and the jury erroneously convicted him of both continuous sexual abuse and committing individual lewd acts on the same victim during the same time period. He also contends his case must be remanded for resentencing in accordance with Senate Bill No. 567 (2021-2022 Reg. Sess.). We reverse Vierra's conviction for continuous sexual abuse and remand the case for resentencing. We affirm the judgment in all other respects.
The People charged Vierra with 14 counts of sex crimes committed against four victims. All of the victims are relatives of Dora L., whom Vierra dated and eventually married.
Vierra and Dora have one child together, I.V. (born in November 2014). I.V. is autistic and non-verbal. Dora also has two sons from a previous marriage: J.L. (born in December 2005) and M.L. (born in March 2008). J.L. is also autistic, but he is verbal and does not require as much support as I.V.
In December 2019, when M.L. was 11 years old, his friend sent him an image of two men having sex. Vierra saw the image on M.L.'s phone and showed it to Dora. Dora became angry with M.L., and M.L. told her, "That's what [Vierra] did to me." Dora kicked Vierra out of the house and called the police.
M.L. spoke to a forensic interviewer on May 15, 2020. At trial, the prosecutor played a video of the interview for the jury.
M.L. told the interviewer that Vierra had sexually assaulted him between 10 and 20 times. M.L. said the first assault happened in January 2019 while Dora was at a Bible study class, which she had started attending the previous week. Vierra grabbed M.L.'s arm, pulled him into a bedroom, and threw him onto the bed. Vierra took off M.L.'s clothes and flipped him over so that his stomach was touching the bed. M.L. felt Vierra's penis in his "butt," and Vierra moved his body up and down. M.L. eventually felt Vierra ejaculate. Vierra then told M.L. to suck his penis, which M.L. did.
M.L. recalled another incident that happened while his cousin, D.M., was visiting. D.M. would have been around 19 years old at the time. Vierra told M.L. and D.M. to go into a bedroom to work on a school project. Vierra came into the room and put his penis in D.M.'s "butt."
The last incident M.L. could recall happened in May 2019. Dora left the house to go to a restaurant with a friend. Vierra told D.M. to go into his room. Vierra then put his penis inside D.M.'s mouth and anus.
M.L. testified at trial in July 2021, more than a year after the interview. M.L. testified that Vierra touched him for the first time in February 2019, when he was ten years old. M.L. was massaging Vierra's arm with his knees. Vierra grabbed M.L.'s penis and started playing with it.
M.L. said Vierra touched him for the second time in March 2019, but he gave inconsistent testimony about whether the incident happened before or after his 11th birthday. We discuss the inconsistencies in more detail below.
During the second incident, Vierra told M.L. to get naked and get on the bed. Vierra closed the bedroom door and took off his clothes. Vierra put his penis in M.L.'s mouth and told him to suck it. After Vierra finished, he told M.L. he would hurt him if he told anyone.
The third incident occurred about a week later-which M.L. clarified was after his birthday-while Dora was at Bible study. Vierra again told M.L. to go to his room and take off his clothes, which M.L. did. Vierra put his penis inside M.L.'s mouth. He then told M.L. to lie on the bed with his stomach facing down. Vierra put his penis inside M.L.'s anus. Vierra moved M.L. back and forth, and M.L. eventually felt Vierra ejaculate on his body.
M.L. recalled a fourth incident that happened around two weeks later. Vierra sat on the edge of the bed and told M.L. to ride his penis. M.L. got on Vierra's lap and faced away from him. Vierra put his penis inside M.L.'s anus. Vierra moved M.L.'s body up and down while moaning. Vierra ejaculated after a few minutes.
According to M.L., Vierra assaulted him in a similar manner eight or nine more times. Around June 2019, Vierra had M.L. ride his penis in the backseat of a car. Another time, Vierra put his penis inside M.L.'s anus while Dora was at a restaurant with friends.
M.L. testified that in April 2019, Vierra drove him to a store to get food. While in the car, Vierra showed M.L. a video on his phone of two men having sex. Vierra said, "[T]his is what you have to do to me to make sex better."
J.L. spoke to a forensic interviewer the same day as M.L. The prosecutor played for the jury a video of the interview.
J.L. told the interviewer that Vierra grabbed his genitals in the summer of 2015, when J.L. was nine years old. Vierra also made J.L. watch an extremely graphic pornographic video called "Two Girls One Cup."
J.L. said that another day, he was watching television when he heard I.V. scream. J.L. opened the bedroom door and saw
According to J.L., Vierra was not wearing pants. I.V. was lying on his stomach and wearing a diaper. J.L. initially said the diaper was "[o]n"; later, he said it was "[o]ff."
At trial, J.L.'s testimony regarding Vierra grabbing his genitals and forcing him to watch pornography was generally consistent with his statements during the interview. His testimony regarding the incident with I.V., however, was significantly different. J.L. testified that when he looked in the bedroom, he saw Vierra "[p]utting his dick on [I.V.'s] diaper." J.L. said I.V. was wearing the diaper and the diaper was "up." According to J.L., this happened in 2018, before I.V.'s birthday.[1]
D.M. is Dora's nephew. In December 2019, D.M.'s father told him that M.L. had accused Vierra of sexual assault, and D.M. broke down crying. D.M. told his father M.L. was telling the truth because the same thing had happened to him. D.M. said Vierra had touched him three times, but he did not give any details. This was the first time D.M. had told anyone that Vierra had sexually assaulted him.
At trial, D.M. testified that Vierra first assaulted him in November 2013, when he was 13 years old. Vierra and Dora were dating at the time, and D.M. agreed to help Vierra move into Dora's house. D.M. already knew Vierra, because Vierra had been his baseball coach the previous year. Vierra did not have a child on the team.
According to D.M., after they finished working for the day, Vierra told him to take a shower. D.M. started showering, and, at some point, Vierra got into the shower with him. Vierra told D.M. they needed to save water. Vierra rubbed soap on D.M.'s body, including his genitals. Vierra then put his penis inside D.M.'s anus, which hurt. Vierra took his penis out after a few seconds and then got out of the shower.
D.M. testified that Vierra assaulted him again on his 18th birthday, in January 2018. D.M.'s grandmother (Dora's mother) had been diagnosed with pancreatic cancer and was living at Dora and Vierra's house. D.M. decided to sleep at their house so he could spend more time with his grandmother. Vierra suggested that D.M. sleep in his bedroom, and D.M. fell asleep in the room by himself.
At some point during the night, D.M. woke up to Vierra on top of him. Vierra's entire weight was resting on D.M.'s back, pinning him to the bed. Vierra penetrated D.M.'s rectum with his penis and thrust his body. Vierra ejaculated and said, "happy birthday."
The prosecutor presented expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) from Jayme Jones, who is a clinical psychologist for child victims of sexual assault. Jones has treated between 700 and 900 child sexual abuse patients, and she has testified as a CSAAS expert in 80 to 90 cases.
According to Jones, Dr. Roland Summit developed CSAAS in order to help counter common misunderstandings about child victims of abuse. Summit developed the original model based on his own clinical experience as well as the clinical experiences of other professionals. There have been 30 to 50 research base studies examining CSAAS, it is generally accepted in the scientific community, and it has been in regular use for training and education purposes. Jones uses CSAAS in her practice while treating child victims of sexual abuse.
Jones explained that CSAAS is actually a misnomer because it is a model, not a syndrome. CSAAS cannot be used to diagnose or determine whether sexual abuse actually occurred. Instead the model assumes...
To continue reading
Request your trial