People v. Diaz CA4/3


Filed 12/13/21 P. v. Diaz CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G060214 v. (Super. Ct. No. 18CR011640) JOSE ALEJANDRO DIAZ, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Monterey County, Pamela Butler, Judge. Affirmed in part, reversed in part, and remanded with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Jose Alejandro Diaz was convicted of continuous child sex abuse and attempting to dissuade a witness. On appeal, he contends: 1) The trial court erroneously excluded evidence regarding the victim’s prior allegations of sexual abuse; 2) the jury instruction on child sexual abuse accommodation syndrome (CSAAS) was flawed; 3) the prosecutor committed misconduct in closing argument; and 4) the trial court erred in imposing certain fines and fees without determining whether he had the ability to actually pay them. We agree with the last contention. Therefore, we reverse the subject fines and fees and remand for an ability-to-pay hearing. In all other respects, we affirm the judgment. FACTS Jane Doe was born in 2001. When she was seven years old, her mother met and married appellant, and they had a baby together a few years later. The following year, when Jane was 10, appellant began to molest her on a regular basis. At that time, the family was living in Salinas. One day while Jane was cleaning up around the house, appellant had her lie down on his bed and proceeded to touch her breasts under her shirt. The incident made Jane feel very uncomfortable, but appellant told her not to tell anyone about it, so she kept it to herself. Following that initial episode, appellant molested Jane two to three times a week. Most of the time he touched only her breasts or butt, but sometimes he also put his hand inside her pants and touched her vagina. The molestation continued after the family moved into an RV in Salinas when Jane was 11 years old. Once, appellant groped Jane’s breasts while pretending to apply vapor rub to her chest, and another time, he pressed his erect penis against her from behind. There also was an incident where appellant touched Jane’s breasts and vagina while she was trying to sleep inside the RV. Jane testified to other incidents where appellant molested her in his car and at her grandma’s house when she was 12 and 13 …

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