Warning: This report contains graphic descriptions of a sexual nature.
After an appeals court earlier this year overturned local resident Jonathan Fidone’s convictions for molesting a 19-month-old child on July 17, 2010, District Attorney Candice Hooper said she interpreted that ruling to mean prosecutors were forbidden from re-interviewing the key witness.
“It did not appear so,” Hooper responded when questioned in March on whether the office could have re-interviewed that witness, Jimmy Reyna, who has testified about walking in on Fidone with his pants and underwear down and the unclothed toddler on a nearby bed, according to investigative documents.
Hooper’s office has cited the appeals court ruling when questioned on why the prosecution didn’t attempt to keep Fidone locked up and instead settled for a plea deal allowing his release from prison in late January.
Language in the ruling itself, however, calls into question whether the D.A. misinterpreted the order and missed out on a chance to keep a once-convicted child molester behind bars. Local prosecutors had other evidence, including a DNA match, at their disposal as well.
Instead of putting Fidone back on trial after the appellate court ruling, though, Hooper’s office agreed to a plea bargain with the defendant on lesser child-abuse charges that resulted in his release from custody seven years into a sentence of 23 years to life. The DA’s office has since pronounced the case as “concluded,” according to Deputy District Attorney Karen Forcum.
Appealing the original convictions
A jury in 2012 found Fidone, age 23 at the time, guilty of forcible sexual penetration, forcible lewd conduct on a child and aggravated sexual assault by forcible sexual penetration on a child.
Fidone appealed the case. A San Benito County Superior Court judge denied his petition for an appeal, but the Sixth District Court of Appeal recently overturned his convictions.
The appeals court ruled that Fidone’s original defense attorney Art Cantu was deficient for providing a crucial investigative report to the prosecution, before the trial, which included incriminating testimony from the key witness, Reyna.
Aside from prospective testimony from Reyna, the defendant’s cousin, other evidence included DNA results showing Fidone’s sperm found on the 19-month-old victim’s genitalia and an array of circumstantial evidence from the scene such as an pornographic materials on display at the time of the incident, according to investigative documents obtained by San Benito Live.
DA explains interpretation of ruling
Testimony from Reyna had been included in private investigator David Godoy’s report compiled for the defense – which the appellate court deemed as inadmissible in the event Hooper decided to re-prosecute Fidone. Godoy compiled the report for the defense after interviewing key witnesses such as Reyna.
The deputy district attorney who handled the case, Forcum, also contended in an email response to San Benito Live’s questions that the appellate ruling restricted prosecutors.
“Regarding your question about re-interviewing the witness, the court of appeal disallowed any information received through the Godoy report,” wrote Forcum, who declined to speak over the phone but responded to email questions.
Nowhere in the appellate ruling, however, does it state that prosecutors or law enforcement were forbidden from doing their own investigative work, re-interviewing Reyna, or having the same witness testify in court.
In the published appellate court opinion, there are two references to the restriction issued regarding re-use of the Godoy report.
The first reference is in the “Protective Order” section of the 24-page opinion.
“The appropriate remedy is to direct the superior court to issue a protective order barring the prosecution from using Godoy’s report at any retrial of these charges,” it reads.
The second and last reference is shortly after in the “Disposition” to close out the document.
“Should the prosecution elect to retry defendant, the San Benito County Superior Court shall issue a protective order barring the prosecution from using Godoy’s report at a retrial,” the opinion reads.
When specifically asked where the appellate court states prosecutors could not use Reyna as a witness in a re-trial, Forcum responded with the following by email:
“The burden of proof in a jury trial is proof beyond a reasonable doubt. This office has found that juries in this community take their duties as jurors very seriously, and carefully consider the evidence presented to them at trial. In re-evaluating this case, it was determined that the resolution which reflected the time the defendant spent in state prison, future 290 registration and a protective order for the victim was a certain outcome, as opposed to proceeding to trial in a case in which this office was prohibited from introducing crucial evidence.”
Hooper, meanwhile, has underscored how Forcum handled the Fidone case, while the D.A. always has the final say on such decisions.
“Karen and I most definitely talked about the case,” Hooper acknowledged in a phone interview. “Given the court’s ruling and the ruling about disallowing certain evidence, this was the proper avenue.”
Hooper went on, when questioned on prospects to re-interview witnesses or re-examine contents of the Godoy report.
“We were told no information coming from that investigator could be used,” she said.
What other evidence was available for new trial?
The appellate court opinion and additional legal documents obtained by San Benito Live lay out an abundance of available evidence that played a role in leading law enforcement investigators to conclude Fidone molested that young girl and prosecutors down the path of the 2012 convictions.
The DNA results were particularly poignant in the investigation and original trial proceedings. Hollister police investigators commissioned the California Department of Justice Bureau of Forensic Services to conduct DNA tests on evidence collected from the scene where law enforcement authorities say Fidone molested the girl.
The results showed that Fidone’s sperm DNA matched with DNA collected from the victim’s labia, or genitals, along with DNA on a dildo he had in the room at the time, according to investigative documents obtained by San Benito Live. Fidone claimed in his defense that he had masturbated and wiped himself with the towel – and then later used that same towel to clean the child.
“He asserted that defendant had used this same towel ‘to clean that baby’ because ‘there are no wipeys’ and ‘the baby has a rash and is soiled’,” according to court documents filed with the appellate ruling.
A crucial aspect of Fidone’s defense has been his explanation that the 19-month-old at the time had been suffering from the rare infection, and that symptoms causing alarm about potential sex abuse, in actuality, had been caused by medical problems.
According to court records, Fidone had been staying at his aunt’s home on Versailles Drive in Hollister where police have said he molested the girl, the daughter of his girlfriend at the time, on July 17, 2010.
According to investigative documents, Fidone had just returned from Santa Cruz when the incident occurred. He was watching the child that day because the toddler’s mother had been staying with her own mom at a Santa Cruz hospital.
Police in unraveling the lead-up to the suspected assault tracked down how Fidone purchased the dildo at a Santa Cruz sex shop and alcohol from a liquor store before driving to Hollister. After Fidone returned to the Versailles Drive home in Hollister, he went into his garage room where he had been staying at the time and locked the door.
Reyna testified that he went to check on the two because Fidone appeared intoxicated, and that’s when the door to the room was locked, according to legal documents. After knocking loudly for about three minutes with no response, Reyna went to a window where he could partially see inside the room, he told investigators.
According to investigative documents, Reyna has recounted how he could see only the top portion of the toddler through the window. He told investigators he witnessed the child was on the bed and he could see Fidone pulling the girl’s legs and covering her mouth to prevent her from screaming.
This is what Reyna had to say when he testified in court, according to legal documents.
“Well, there was a tug forward towards the edge of the bed, and then there was – it looked like she was getting thrusted up and down or back and forth, whatever you want to call it.”
Reyna testified he saw nothing else through the window and then immediately went around to unlock the door with a screwdriver, with investigative records noting how the key witness knew how to get into the room since he had previously stayed there himself.
When he entered the room, Reyna told investigators he saw the child naked on the bed with her legs open, and Fidone with his pants and underwear down to his ankles. Reyna has also recounted how Fidone had been holding a towel covering his genitalia and it appeared as though he had an erection.
Additionally, there had been open pornographic magazines in the room, a porn video playing on the TV at the time and the dildo out in open view, Reyna recalled.
When Reyna confronted him, Fidone claimed he had been changing the child’s diaper and denied doing anything wrong to the toddler, according to testimony. Reyna has told investigators he believed Fidone was molesting the child.
Reyna did not return recent messages from San Benito Live left left on his cell phone.
Fidone did not respond when approached outside a San Benito County courtroom last week while being asked to talk about the case. His attorney, David D. Martin out of Sacramento, has not returned phone messages, either.
Nurse says injuries ‘looked consistent with’ abuse
Following the confrontation between Reyna and Fidone in 2010, Reyna’s fiance and his mother gave the young girl a bath, saw blood in her diaper and then took her to Hazel Hawkins Memorial Hospital.
Subsequently, a doctor and nurse who treated the girl provided statements to police. The doctor told investigators he found diaper rash, rectal tears, a white discharge and blood in the opening of her vagina. The doctor told police the rectal tears could have been caused by trauma or cracking from a fungal rash.
The pediatric nurse who conducted a “sexual assault response team” exam to the girl also observed rectal tears that were bleeding, along with redness around her vagina. The nurse told investigators the injuries “could very well be sexual abuse trauma” but could not say for certain. The nurse did say the young girl’s injuries “looked consistent with sexual abuse trauma and not consistent with her diaper rash,” while pointing out how her diaper rash appeared to have been healing.
Other pieces to the investigation
Additional pieces of testimony that were at the D.A.’s disposal in the event of a new trial included the following:
Fidone admitted to drinking and smoking marijuana in Santa Cruz before driving back to Hollister with the toddler that day. When a Hollister police detective questioned him in the investigation if police would find his DNA on the dildo, Fidone had this to say: “Who knows, honestly? I don’t know.” When subsequently asked by police why he didn’t know, Fidone responded it was because he had a couple shots of alcohol and marijuana before driving to Hollister, according to legal documents. Another witness questioned by police said Fidone that day had been seen drinking Bacardi 151, a high-alcohol beverage that’s now discontinued.
In a three-way conversation between Fidone and his then-girlfriend, with a detective recording the discussion, Fidone also had this to say about the situation after the woman had asked if he possibly blacked out “like he sometimes does”:
“Maybe I did black out and I just don’t remember,” Fidone said before adding that he would never assault her child because the girl was “pretty much like” his daughter.
Fidone went on, according to the police report: “I am not denying that she (Doe) did get assaulted, but I just don’t remember. I just remember changing and then Jimmy (Reyna) busted in and said, ‘I saw you, I saw you’.”
Fidone went on in the same conversation, according to the police report: “If I go talk to them (the police) what if I did black out and what if it did happen? Do you know how horrible I would feel about myself?”
Fidone told her he had been “pretty f-ing drunk” that day when he got home with the 19-month-old, and also had this to say:
“I don’t know if I did anything.”
Story by Kollin Kosmicki