Graphic video, testimony in Los Banos double rape case

11/16/2013 12:32 AM

11/16/2013 12:37 AM

A 25-year-old man testified Friday that he did not suspect he might have been raped last year by defendant Thomas Zavaleta until Los Banos police investigators showed him a video recording.

A Merced County Superior Court jury heard that testimony and viewed the sexually explicit 17-minute video that prosecutors said depicts Zavaleta anally raping the unconscious victim on his bathroom floor on June23, 2012.

Zavaleta, 25, has pleaded not guilty to nearly a dozen felony charges of raping, sodomizing and penetrating two unconscious men in June and August of 2012. Judge Marc A. Garcia is presiding over the trial.

The Merced County District Attorney’s Office has said Zavaleta drugged both men with Gamma-hydroxybutyrate, or “GHB,” or possibly “some other date-rape drug.” Defense attorney Curtis Rodriguez has said his client had consensual sex with both men.

Responding to a question from Deputy District Attorney Monica Saini on Friday, the man said he was “mortified” when he learned of the video nearly a year later. “When I saw the video, I was humiliated,” he testified.

He said he “blacked out” while drinking at Zavaleta’s apartment and never consented to any sexual contact with the defendant or video recording.

Los Banos police Detective Justin Melden also testified Friday. Under questioning by the defense, Melden acknowledged that investigators found no evidence of any date-rape drugs inside Zavaleta’s apartment.

Saini focused on Zavaleta’s cellphone data from the night of Aug.8, 2012, during the incident involving another man. Police investigators testified that Zavaleta and the other suspected victim, who was 21 years old, were having a small birthday celebration at Zavaleta’s apartment. The man’s brother attended the party as a designated driver, police said.

Some time around midnight, prosecutors said, the brother stepped outside to take a phone call and Zavaleta locked him out of the apartment. The younger brother tried to get back inside and called Zavaleta’s cellphone numerous times, police said, but Zavaleta said he was too drunk to hear his phone or the knocking on the door.

Melden testified Friday that the man’s brother called numerous times between midnight and 12:30a.m., and that while those calls were not answered, calls from another number during the same time were accepted.

Melden said a photograph was taken on Zavaleta’s cellphone at 12:30a.m. of the man naked and unconscious on the bathroom floor. One minute later, the younger brother again called the cellphone and the call was not answered.

The prosecution played portions of Zavaleta’s interviews with Melden during the initial investigation. In the videos, Zavaleta adamantly denies drugging the man, but acknowledges the 21-year-old man may have been unconscious. He also acknowledges that it was possible neither man was aware they were being recorded or photographed.

After the jury was dismissed for the day, a separate evidence hearing was held. The judge ruled that a defense witness, Salvador Agundes, would be allowed to testify before the jury next week. Agundes testified that he had consensual oral sex with one of the victims in 2010 and the defense said that testimony would be critical to its case.

Garcia said the defense plans to argue that one of the victims is a “closeted homosexual” and has fabricated the allegations against Zavaleta “to hide it.”

Saini argued against allowing Agundes’ testimony because, she said, he is not a credible witness. Four other witnesses, including two police officers, would testify that Agundes told them he was being bribed by Zavaleta’s family to testify for the defense, Saini said.

Garcia said he would allow the jury to hear the testimony since it was part of the defense case, but said there were “clearly credibility components” involved and warned the defense not to ask questions outside the “narrow scope” of its case.

The trial resumes Tuesday.

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