Evidence of Prior Sexual Assault Conviction Disputed in Ongoing Child Molestation Case

By Anya Chen

RIVERSIDE, CA — Just before the 4th of July holiday, in an ongoing child molestation case, a Riverside County Superior Court judge debated the use of a prior sexual assault conviction in the upcoming jury retrial.

The defendant, Guillermo Cardona-Cifuentes, was arrested in September 2018 and faces four charges:

1) California Penal Code section 288 of willfully committing any sexual or “lewd and lascivious act” upon a child who is under 14 years old

2) Section 288.5(a) of engaging in three or more acts of substantial sexual conduct with a child under the age of 14 at the time of the offense, by a person who either resides in the same house with the minor child or has recurring access to the child

3) Section 288.7(a) felony charge for any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger, punishable for 25 years to life in prison

4) Section 289(j) of participating in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than the perpetrator.

Prosecutor Gary Polk wanted to inform the jury of the defendant’s prior conviction for aggravated sexual assault against the same victim, “Jane Doe.”

Initially, Judge Samuel Diaz moved to dismiss the use of this conviction as evidence due to it being highly prejudicial.

Defense Attorney Douglas Redden agreed, saying that it would create speculation among the jury “that [Cardona-Cifuentes] is a serial child rapist, as opposed to a single person in his entire life who has accused him of wrongdoing of this magnitude.”

However, Polk argued to keep the prior conviction as evidence, citing California Evidence Code section 1108 which “allows prosecutors to bring in evidence of the defendant’s past sexual misconduct, alleged and otherwise, when they are currently on trial for a sex crime.

“Here it is not going to evoke an emotional bias, and it has a significant effect on the issue because he has committed this crime, a similar crime. He has been convicted of aggravated sexual assault. That is a true statement,” Polk said.

“The emotional impact is going to come in regardless because the victim is probably going to testify about that incident along with all the charged incidents,” Redden disputed.

He acknowledged Polk’s 1108 claim, but said that “despite the dozens of cases which have been published in regard to 1108, none of them have dealt with a situation where the District Attorney tries to get in a jury determination regarding the same course of conduct.”

Redden argued that the inclusion of this prior jury conviction would prevent the current jury from making an unbiased decision.

“The fundamental unique problem here is that the jury will then be told that there is a finding by another fact finder, another set of 12 people, that beyond a reasonable doubt, Jane Doe was telling the truth in that instance,” Redden said. “And that allows this jury to set aside its own independent determination and instead defer to the prior jury.”

Additionally, Redden stated that the defendant’s Fifth Amendment rights would be put in jeopardy.

“It would be a massive abuse of discretion, a massive elimination of Mr. Cardona-Cifuentes’ rights to an independent jury determination, a fair trial and due process under the U.S. and Federal Constitution,” the defense said.

Ultimately, Judge Diaz agreed to review the evidence under analysis according to the California Evidence Code section 352, which states that “the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

“This is gonna be a close call,” Judge Diaz said. “I’ve got to make the right call.”

About The Author

Anya Chen is a third year Communication major at UCLA and hopes to pursue criminal defense law. She is from Washington, D.C.

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1 Comment

  1. Frank Sterle Jr

    Trauma from unchecked toxic abuse (a.k.a. Adverse Childhood Experiences), sexual or otherwise, typically result in a helpless child’s brain improperly developing. If allowed to continue for a prolonged period, it can act as a starting point into a life in which the brain uncontrollably releases potentially damaging levels of inflammation-promoting stress hormones and chemicals, even in non-stressful daily routines.

    It has been described as a discomforting anticipation of ‘the other shoe dropping’ and simultaneously being scared of how badly you will deal with the upsetting event (that typically never happens). It can make every day an emotional/psychological ordeal, unless the mental turmoil is treated with some form of medicating, either prescribed or illicit. The pain — which unlike an open physical disability or condition, such as paralysis, a missing limb or eye — is very formidable yet invisibly confined to inside one’s head, solitarily suffered.

    But, really, should not a psychologically and emotionally sound, as well as a physically healthy, future be every child’s foremost right, especially considering the very troubled world into which they never asked to enter? Of course it should; it needs to be!

    “It has been said that if child abuse and neglect were to disappear today, the Diagnostic and Statistical Manual would shrink to the size of a pamphlet in two generations, and the prisons would empty. Or, as Bernie Siegel, MD, puts it, quite simply, after half a century of practicing medicine, ‘I have become convinced that our number-one public health problem is our childhood’.” (Childhood Disrupted, pg.228).

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