Filed 9/25/20 P. v. Rosacia CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAYSON GAELA ROSACIA,

Defendant and Appellant.

 B298530

 (Los Angeles County

 Super. Ct. No. LA086711)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Gregory A. Dohi, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, David E. Madeo and Heidi Salerno, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

Defendant Jayson Gaela Rosacia, who was convicted of 

multiple counts of sexual assault against his minor daughter, 

appeals from a judgment of conviction following a jury trial. 

Defendant contends that the trial court erred in admitting 

evidence of his possession of child pornography and his search of 

internet sites involving child pornography and incest. We affirm.

II. BACKGROUND

A. Procedural History

On February 15, 2019, the Los Angeles County District 

Attorney charged defendant by amended information with 11 

counts of aggravated sexual assault upon a child under the age of 

14. Specifically, the information charged defendant with rape 

(Pen, Code,

1 § 269, subd. (a)(1); counts 1 through 3, 11 through 

14); oral copulation (§ 269, subd. (a)(4); counts 4 and 10); and 

sexual penetration (§ 269, subd. (a)(5); counts 5 and 9). The 

information also alleged one count of oral copulation or sexual 

penetration with a child 10 years old or younger. (§ 288.7, 

subd. (b); count 8.)

On May 8, 2019, a jury returned a verdict finding 

defendant guilty of all 12 counts. At the May 30, 2019, 

sentencing hearing, the trial court sentenced defendant to an 

aggregate term of 180 years to life in prison.

1 Further statutory references are to the Penal Code unless 

otherwise stated.
3

B. Prosecution Evidence

1. August 29, 2017, Interviews of J.R.

On August 29, 2017, officers with the Los Angeles Police 

Department and a nurse interviewed J.R., who was then 13 years 

old. J.R. stated that she lived with defendant, her mother, and 

two younger siblings.

J.R. reported that defendant had “tricked [her] to have sex 

with him.” When asked if she knew what sex was, J.R. stated it 

was defendant putting “his private thing inside [her].” J.R. 

further explained that defendant did not use condoms when he 

had intercourse with her, but on two occasions, he gave her birth 

control pills.

When J.R. was about seven years old, defendant began 

touching her vagina and forcing her to orally copulate him. J.R. 

recalled one instance when defendant forced her to orally 

copulate him in his car. On another occasion, defendant, who 

was a videographer for pornographic movies, recorded himself 

while he attempted to penetrate J.R.’s vagina with his penis.

Sometime in August or September 2015, when she was in 

the sixth grade, J.R. told defendant that she had arm wrestled a 

boy at school. Defendant told J.R. that she could become 

pregnant from the arm wrestling unless she had sex with 

defendant. J.R. initially refused to comply, but defendant 

responded that he would kill himself if she did not do as he 

asked. J.R. believed him. Therefore, while J.R.’s mother was 

away, J.R. had intercourse with defendant. Afterwards, 

defendant told J.R. that if her mother learned about what had

happened, she would kill them both. Defendant also told J.R. 
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that a guard would be watching her to make sure that she did not 

tell anyone what he had done.

A few days later, defendant told J.R. that she had to have 

sex with defendant at least four times if she wanted to prevent 

becoming pregnant. He then raped her in the bathroom and 

again in his bedroom. J.R. would wake up to defendant touching 

her or taking off her underwear. Defendant would then leave or 

tell her that she was dreaming.

When J.R. was 12 years old, defendant put his weight on 

her, covered her mouth, and raped her. In August 2017, 

defendant raped her again.

On August 28, 2017, the day before her interview with the 

police, defendant, after learning that J.R. had a boyfriend, told 

J.R. to get into the car so that they could talk. Defendant then 

forced J.R. to orally copulate him as punishment for having a 

boyfriend. Defendant also touched J.R.’s genitals and digitally 

penetrated her vagina.

Later that day, J.R. went to bed at 9 p.m., and awoke as 

defendant entered her bedroom. Defendant forced J.R. to touch 

his penis while he fondled her genitals. At 1 a.m., defendant 

again forced J.R. to touch his penis while he touched her vagina. 

Defendant then raped her and told her to moan like she enjoyed 

it. Defendant ordered her not to cry and threatened that the 

more she cried, the more he would “do it to [her].” In the 

morning, J.R. woke up in pain.

The following day at school, J.R. told her friends, H.S. and 

S.A., and her cousin about what defendant had done the prior 

day. All four girls walked to the counselor’s office, where J.R. 

reported defendant’s abuse. The counselor called the Department 

of Children and Family Services and the police.
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2. Physical Examination and DNA Evidence

On August 29, 2017, a nurse examined J.R. and observed 

four injuries that were consistent with recent sexual penetration. 

The nurse also administered a rape kit to J.R. and swabbed her 

mouth, face, breasts, genitalia, left inner thigh, right leg, right 

hip area, lower back, lower abdomen, and buttocks.

The nurse also examined defendant, swabbing his fingers, 

fingernails, genitals, face, cheeks, and neck. The swab of 

defendant’s penis yielded a major profile and a minor profile, 

which meant that one DNA profile contributed more to a sample

than another. The major profile belonged to J.R.2 The minor 

profile belonged to defendant.

DNA from J.R.’s vaginal swab matched defendant’s DNA. 

Swabs of J.R.’s left breast, face, and left thigh also matched 

defendant’s DNA. Items taken from J.R.’s bedroom, including 

her underwear, blanket, and pillow cases, contained sperm 

matching defendant’s DNA.

3. H.S.’s Testimony

H.S. and J.R. were close friends when the two were in 

middle school. In December 2015, when they were both in the 

sixth grade, J.R. told H.S. about “what [defendant] was doing to 

her.” J.R. told H.S. that if J.R. wanted something, like candy, she 

had to do something for defendant in return, such as orally 

copulate him. J.R. also reported that she would wake up in the 

2 The forensic officer testified that the chance the DNA 

profile belonged to someone other than J.R. was one in a 

centillion.
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middle of the night and find defendant on top of her, “near her 

private area.” On other occasions, J.R. would report that 

defendant was “doing it again.” H.S. encouraged J.R. to report

defendant. J.R. responded that if H.S. told anyone about the 

abuse, J.R. would stop being her friend.

In the spring of 2018 (after defendant was arrested for 

abusing J.R.), J.R. told H.S. that she had received a letter from 

defendant asking her to help him get out of jail. J.R. told H.S. 

that she felt guilty that defendant was in jail.

In the beginning of the ninth grade, J.R. told H.S. that she 

had made up the abuse. H.S. reminded J.R. that J.R. had been 

crying about defendant’s abuse for years. H.S. and J.R. are no 

longer friends and J.R. has blocked H.S. from all contact with 

her.

4. S.A.’s Testimony

S.A. and J.R. were friends in middle school. In sixth grade, 

a month after winter break, J.R. told S.A. that according to 

defendant, the only way J.R. could prevent becoming pregnant 

from arm wrestling was to have sex with defendant. J.R. 

regularly told S.A. that defendant was forcing her to have sex 

with him, and that this was occurring on a weekly basis. J.R. 

said that she was tired of the abuse and wanted to take her own 

life.

5. Police Interview of Defendant

On August 29, 2017, defendant was interviewed by a police

detective. The interview was audio recorded and played for the 
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jury. Defendant initially denied abusing J.R., but said that he 

“deserve[d] whatever happens.” In describing his conduct, 

defendant stated, “But what I did to my daughter, by the way, is 

just, I was hurt. I, I’m not a pedophile.”

Defendant then admitted to forcing J.R. to orally copulate 

him and explained that he did so because he was angry that she 

had a boyfriend. He directed J.R. not to tell anyone what he had 

done and then had intercourse with J.R. twice later that same

night.

Defendant further admitted that he would have sex with 

J.R. “whenever [they were] alone.” Defendant recounted an 

incident in June 2017 when he massaged her, digitally 

penetrated her, and engaged in intercourse with her because he 

believed she enjoyed it. Defendant stated, “I realize that I really 

deserve it. [¶] . . . [¶] I’m not even trying to defend myself.” 

Defendant began touching J.R. when she reached puberty at age 

11 or 12.

6. Jailhouse phone calls

Defendant called his wife A.R. more than 1,000 times while 

in custody. On September 1, 2017, A.R. told defendant: “‘You 

have an illness mentally. That’s why you were able to do this.’” 

Defendant agreed, stating, “‘Yes. It’s so.’” A.R. also said, “‘I 

really pity [J.R.],’” to which defendant responded: “‘Me, too. I 

pity her so much. That’s why, you know, I had long-waited to 

turn myself in.’”
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7. J.R.’s Recantation

On October 25, 2018, J.R. told a police officer that she had 

lied about defendant abusing her. According to J.R., defendant 

had cheated on her mother and directed J.R. to tell the police 

that he had raped her so that he could go to jail.

At the December 7, 2018, preliminary hearing, J.R. refused

to answer most questions.3 J.R. repeatedly stated that defendant 

did not do anything and that she had lied. J.R. testified she 

made up the allegations because she was mad at defendant for 

cheating on her mother. J.R. denied ever telling her friends that 

defendant had abused her.

8. Dr. Susan Hardie

Susan Hardie is a developmental psychologist who testified 

about child sexual abuse accommodation syndrome (CSAAS). 

Hardie described CSAAS as a model for psychologists to disabuse 

common misconceptions about how child sexual abuse victims 

behave. Among other things, child victims often delay reporting 

sexual abuse until adolescence and first report the abuse to their 

friends. Hardie also explained that children often retract their 

allegations of abuse when their family is “blown to pieces.”

Further, child victims feel guilt and shame for, in their view, 

having caused the abuse.

3 J.R.’s preliminary hearing testimony was read to the jury 

because she was unavailable to testify at trial.
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9. Computer evidence of child sexual abuse material

United States Secret Service agent Paul Thomas testified 

that he and other members of the Los Angeles Electronic Crimes

Task Force searched defendant’s digital devices for images and 

data. Thomas had six years of experience conducting computer 

forensic examinations and had specialized training and 

experience in child pornography investigations. Thomas 

searched defendant’s computers for the terms: “PTHC,” which 

stands for preteen hardcore; “Lolita,” which is a common child 

pornography-related search term; and “pedophile.” These 

searches yielded at least 39 internet artifacts (files, programs, 

documents, or texts). Thomas also inspected the computers for 

prior Google searches and found 55 searches related to child 

pornography topics.

4 Thomas also observed that defendant had 

visited a particular website called motherless.com and had “hit” 

266 titles of videos associated with that site.5

Thomas also found carved video files, which are remnants 

of deleted files. One such file was a video that included sexually 

explicit images of fingers digitally penetrating the vagina of a

“very, very young” girl, as well as a close-up of the victim’s 

vagina. The exhibit was marked but not shown to the jury. 

Thomas testified that based on the size of the vagina compared to 

4 These searches included: “real incest fuck,” “middleschoolers having sex,” “is a 12-year old a child,” “why is incest 

illegal,” “why middle school girls are hot,” “incest mainstream 

movies,” “real father-daughter sex,” and “nonconsensual sex.”

5 The videos included “Dad fucks Daughter Video Claim,” 

“Dad Fucks Daughter While Mom is Working,” and other similar 

titles.
10

the size of the hand and the absence of pubic hair, he believed 

that the victim was a child.

Detective Jerry Kowalsky was also a member of the Los 

Angeles Electronic Crimes Task Force and conducted a search of 

defendant’s cell phone. On August 9, 2017, someone using 

defendant’s cell phone conducted nine searches related to incest 

and rape of a daughter. On August 29, 2017 (the day after 

defendant’s most recent rape of J.R.), someone using defendant’s 

cell phone searched how Plan B worked, how long sperm took to 

swim, and how long sperm could survive outside the body.

C. Defense Evidence

Defendant testified at trial. He admitted to conducting the 

Google searches about which Thomas testified but explained that 

he did so because he wanted to create something “cinematic” 

about incest between a stepfather and daughter. When asked 

about one of the items retrieved from his computer entitled 

“‘R@ygold, kinderficker PTHC Child Lover Cum Three Year Old 

Jennifer,’” defendant explained that he visited this site because 

J.R. told him about it when she was eight or nine years old. 

Defendant explained that he thought “PTHC” was short for 

“pathetic” and, even though that search term appeared hundreds 

of times across his digital devices, he had no idea that it was 

short for “‘preteen, hard[]core’” until he heard Thomas’s 

testimony. As to the telephone search about Plan B, defendant 

testified that he conducted that search because he wanted to 

purchase the medication for his girlfriend.

According to defendant, he falsely confessed to raping J.R. 

because he did not want J.R. to get in trouble for lying to the 
11

police and because he was afraid that his wife would find out that 

he had cheated on her.

Defendant claimed that he told J.R. what to say to the 

police and went over the details of the story with her so that their 

statements to the police would match. He then spat on her hand 

and told her to rub it wherever she wanted, her “‘body . . . boobs, 

whatever.’”

A defense investigator testified about her interview with 

J.R.; J.R. told the defense investigator that she had found a 

condom in the trash can of the bathroom and poured the contents 

of it onto her legs.

III. DISCUSSION

Defendant contends that the trial court erred by admitting 

evidence that he possessed images of child pornography and 

conducted searches for child pornography.6 “A trial court’s 

6 Evidence Code section 1101, subdivision (b) provides: 

“Nothing in this section prohibits the admission of evidence that 

a person committed a crime, civil wrong, or other act when 

relevant to prove some fact (such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or 

accident, or whether a defendant in a prosecution for an unlawful 

sexual act or attempted unlawful sexual act did not reasonably 

and in good faith believe that the victim consented) other than 

his or her disposition to commit such an act.”

Evidence Code section 1108, subdivision (a) provides, “In a 

criminal action in which the defendant is accused of a sexual 

offense, evidence of the defendant's commission of another sexual 

offense or offenses is not made inadmissible by [Evidence Code] 

[s]ection 1101, if the evidence is not inadmissible pursuant to 

[Evidence Code] [s]ection 352.”
12

rulings admitting evidence under Evidence Code sections 1101

and 1108 are reviewed for abuse of discretion.” (People v. 

Daveggio and Michaud (2018) 4 Cal.5th 790, 824.)

A. Background

Prior to trial, defendant moved to exclude evidence seized 

during the search of his digital devices. The prosecutor argued 

that the images and search terms were admissible pursuant to 

Evidence Code section 1108. The prosecutor conceded that 

introduction of the actual images of child pornography would be 

“inherently inflammatory” and therefore offered to limit the 

evidence to testimony about the images. Defense counsel 

contended that the images were not of children but adults and

requested that the court view the videos to determine whether 

they depicted children. The prosecutor then submitted still 

images from four videos for review by the court.

7 The court 

reviewed the images and concluded that they depicted children, 

not adults. As we discussed above, the prosecution ultimately 

elicited testimony about just one of the videos, which depicted the 

digital penetration of a child victim. As to this image, the court 

concluded that it “clearly show[ed] digital penetration of a young 

person’s sex organs.” The court ruled that defendant’s possession 

of the images was admissible under Evidence Code section 1108

but limited the evidence to testimony about the images and 

excluded admission of the actual images, pursuant to Evidence 

Code section 352. The court also concluded that the search terms 

7 Only the stills from the single video about which the 

prosecution elicited testimony is in the record. The stills of the 

other three videos are not part of the record on appeal.
13

were admissible pursuant to Evidence Code section 1101, as 

evidence of motive.

Defense counsel never articulated to the trial court why the 

Google search terms should not be admitted at trial.

B. Analysis

Defendant contends that evidence regarding the files, 

including images, seized from his computers and telephone as 

well as the search terms “did not qualify as admissible criminal 

disposition evidence under [Evidence Code] section 1108, were 

insufficiently probative under [Evidence Code] section 1101[,]

subdivision (b), and were unduly prejudicial under [Evidence 

Code] section 352.” “‘In determining the admissibility of 

evidence, the trial court has broad discretion . . . .’” (People v. 

Jackson (2016) 1 Cal.5th 269, 320.)

Defendant never articulated before the trial court why the 

Google search terms were inadmissible and has arguably 

forfeited that argument on appeal. (People v. Fuiava (2012) 53 

Cal.4th 622, 670.) Even if not forfeited, we reject defendant’s 

argument on its merits. Testimony about the images and search 

terms was admissible pursuant to Evidence Code section 1101, 

subdivision (b). The information charged defendant with three

counts of sexual penetration of J.R. As the court instructed the 

jury, the prosecution was required to prove that when defendant 

sexually penetrated J.R., he did so “for the purpose of sexual 

abuse, arousal, or gratification.” Accordingly, defendant’s search 

for and possession of child pornographic images was relevant to 

defendant’s motive and intent. (Evid. Code, § 1101, subd. (b); see 

also People v. Brown (2004) 33 Cal.4th 892, 901 [“If a judgment 
14

rests on admissible evidence it will not be reversed because the 

trial court admitted that evidence upon a different theory”].)

Further, to the extent defendant argues that admission of 

this evidence was unduly prejudicial, we disagree. The testimony 

regarding the search terms and images was relatively brief, 

especially compared to the numerous witnesses who testified 

about defendant’s abuse of J.R. We also disagree with 

defendant’s contention that jurors were likely to find defendant’s 

possession of child pornography more repugnant than defendant’s 

years-long and multiple acts of rape against his daughter. We 

thus agree with the trial court that the admission of such 

evidence was not unduly prejudicial. (People v. Nguyen (2010) 

184 Cal.App.4th 1096, 1117; accord, People v. Hernandez (2011) 

200 Cal.App.4th 953, 965–966.)

Finally, even if the trial court had abused its discretion in 

admitting the evidence, and we conclude it did not, any such 

error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

As detailed above, J.R.’s recorded statements to the police, her 

statements to her friends, defendant’s recorded confession to the 

police, defendant’s jailhouse calls to his wife, the inherent 

implausibility of defendant’s testimony at trial, and physical 

evidence demonstrating recent trauma to J.R.’s vagina, coupled 

with DNA evidence corroborating defendant’s rape of J.R.,

constituted overwhelming evidence of defendant’s guilt.
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IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.