A female babysitter convicted of molesting the six-year-old girl she watched has won a new trial based on the prosecutor’s attempt to show the woman was a lesbian and thus an attraction to women of any age would give her motive to molest the young girl.
The Fourth District Court of Appeal overturned the conviction and 16-year prison term of Leticia Garcia and sent the case back to Santa Ana for a new trial.
“We do not believe appellant’s sexual orientation was relevant to any issue in the case,” the panel stated in a decision issued Thursday.
Garcia worked as live-in babysitter and housekeeper from 1991 to 1995. She was allegedly discovered kissing the girl in a sexual manner when the child’s mother arrived home unexpectedly one day.
The mother reported the incident to police and fired Garcia. After her dismissal, Garcia could not be found until 2011, when she was ultimately charged. The victim was then 28-years-old and testified in 2012 that she was abused almost daily by Garcia.
During the trial the defense sought to exclude information about Garcia’s sexual orientation. The trial judge agreed saying Garcia’s sexual orientation was irrelevant to the charge and resisted use of a police booking photo that made Garcia “look like a man in a polo shirt.”
But during prosecution questioning of the victim, the prosecutor asked the girl, identified only as A.G., if she thought Garcia was a lesbian. The defense objected before A.G. could respond. The judge rejected a defense mistrial request over this and other similar prosecution questions.
Then during closing arguments, emboldened by surviving a mistrial motion, the prosecutor asked jurors to consider Garcia’s sexual orientation when deciding the truth of the charges against her, according to the court.
“I’m not saying that everyone who’s attracted to women is going to attack children or going to molest children, but we know that she is attracted to females and A.G. is a female child,” the prosecutor said.
That was too much for the appeal s court. The prosecutor’s repeated emphasis on Garcia’s sexual orientation in closing argument prompted the appeals court to declare she had been denied a fair trial.
Case: Peo. V. Garcia, No. G048020
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