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Monday, Sep. 07, 2009

Appeal by convicted child molester denied

Ex-Golden Valley teacher claimed juror was unfairly dismissed.

A state court of appeal has denied a former Golden Valley High School teacher's claim that a juror was unfairly dismissed from his 2007 trial, when he was found guilty on child molestation charges.

Jesus Colmenero Rivera, a former drama teacher, was convicted by a Merced County jury in 2007 on six of nine counts of child molestation for incidents that happened between 2001 and 2004.

He was sentenced to four years, eight months in state prison.

Rivera's attorney, however, said he disagrees with the state court of appeal's decision -- and he filed a petition for a rehearing last week.

During the trial, one of the 12 jurors was dismissed after making statements about his brother during jury deliberations. The juror's brother is a convicted serial child molester serving several life sentences in the Oregon Department of Corrections.

Despite the statements the juror allegedly made, Rivera's attorneys contended the juror hadn't engaged in any misconduct. Rivera's attorneys also believed the jury was biased against their client, after the dismissed juror alleged some members of the jury held a grudge against Rivera because of his homosexuality.

According to court documents, Rivera claimed in his appeal that the dismissal of the juror during his trial was improper because there was no evidence to indicate the juror failed in his duties. Rivera also claimed he was unduly prejudiced by the dismissal of the only juror who was voting to acquit him of all the charges.

In making its decision, the Court of Appeal, Fifth Appellate District, determined that the dismissed juror did not "engage in meaningful deliberations" in accordance with either jury instructions or the law. The court's decision was filed on Aug. 12.

The court also determined there was evidence the dismissed juror had "made up his mind at the outset" of deliberations. In addition, the dismissed juror didn't debate the credibility of the testimony, but instead told "stories of his own personal experience that were not relevant to the deliberations," according to the court's decision.

"There is ample support in the record for the court's determination that (the juror) refused to enter into meaningful deliberations," the court decided.

David P. Lampkin, Rivera's court appointed counsel on appeal, said the dismissed juror never acted improperly, saying the only thing he'd made up his mind about was the credibility of the witnesses in the case. "I think it's a fact of life that's what jurors do," Lampkin said.

Lampkin said Rivera's trial should have resulted in a hung jury -- not a guilty verdict on six of the counts. If the petition for a rehearing is denied, Lampkin said he'll petition the California Supreme Court for a review.

Rivera, 47, was arrested in January 2004 when a male student made a report of abuse to school administrators and police. Four others later stepped forward with allegations, ranging from fondling to oral copulation.

Rivera will have to register as a convicted sex offender after his release from prison.

Reporter Victor A. Patton can be reached at (209) 385-2431 or vpatton@mercesun-star.com.