Metropolitan News-Enterprise


Wednesday, June 4, 2008


Page 1


C.A. Upholds Conviction of Lawyer/Pastor for Molesting Youths




A lay pastor duped a teenage girl into believing he had a “professional purpose” when he touched her sexually under the guise of trying to determine whether she had remained a virgin in accord with church teaching, the Sixth District Court of Appeal ruled yesterday.

The justices affirmed the conviction of Mario Bautista, a now-disbarred San Jose attorney who led a small Spanish-speaking Pentecostal congregation in that city from 2001 until 2004, when he was charged with criminal offenses involving three girls.

He was eventually convicted on four counts involving sex with two of the girls, including a count of  sexual penetration of a person unconscious of the act under Penal Code Sec. 289(d)(4). He was also convicted on two counts of attempting to dissuade the victims from reporting the crimes, but was acquitted on a charge of molesting a third girl.

Witnesses testified that Bautista frowned on dating and insisted that boys and girls be chaperoned when together in groups.

Back of Church

One of the victims in the case, a 16-year-old identified only as Roxana, said she admitted to Bautista after services one Sunday that she had “done something with a guy.” The pastor, she said, asked her to come to the back of the church, along with two other girls.

He then took her alone into a back room, rubbed his pelvic area against hers, and asked what she and the boy had done. After she explained that she and the boy had touched each other’s private parts, but nothing more, she said, Bautista told her not to be scared, that he need to make sure she was still a virgin.

The pastor, she said, then put his hand under her clothes and penetrated her with his fingers. Then he told her that he was not going to tell her parents about the boy and kissed her, which she said made her uncomfortable.

One of the other girls, a 15-year-old identified as Anna, was a friend of Roxana. Anna testified that Roxana was crying as she exited the room and told her what the pastor had done.

The second girl to enter the room, 14-year-old Y., said that the defendant did not touch her but only spoke to her of her studies.

The third girl to enter the room was Anna, who testified that Bautista pulled up her shirt, looked down her skirt, pulled her close to him with his hand on her buttocks, and kissed her.

Roxana told her parents about the incident about a week after it occurred. After Roxana’s father called the police, Bautista allegedly tried to convince Roxana and her mother that it would be best for the church and the family if they did not tell the police what had occurred.

Prior Incidents

Roxana and Anna both told the jury of prior incidents involving Bautista. Roxana said that when her father had dropped her off at the defendant’s law office a couple of years earlier for a church outing, he told her he needed to check whether she was a virgin, and penetrated her with his fingers.

She said she did not complain at the time because she thought the conduct was appropriate.

Prosecutors also presented the testimony of three women who claimed to have been molested by Bautista when they consulted him about immigration matters.

Bautista, testifying in his own defense, denied that he had done anything inappropriate with the girls or with the women who testified against him. He suggested that Roxanne might be lying because he told her that she would have to tell her mother what she had done with the boy, and that Anna hated him because he had broken up her relationship with a boy he felt was a bad influence.

After jurors convicted Bautista on six of the seven charges, he failed to appear for sentencing before Santa Clara Superior Court Judge Joyce Allegro. He was placed on interim suspension from the State Bar, was indefinitely suspended from practicing before the immigration judges, and had a warrant issued for his arrest.

He was also charged with failure to appear, and was convicted of that offense while his appeal from the original conviction was pending. The State Bar Court declared that to be an offense that necessarily involves moral turpitude, and Bautista, now 50. was summary disbarred last year.

Allegro sentenced him to 11 years, four months in prison on the charges involving the girls.

On appeal, he argued that there was insufficient evidence to convict him of violating Sec. 289(d)(4), which makes sexual penetration a crime—punishable by three, six, or eight years in prison—if the victim was unaware “of the essential characteristics of the act...due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.”

The defense argued that the statute does not apply to the clergy, because they are not licensed by the state, and that even if it applies to clerics generally, it could not be applied to an unpaid volunteer such as Bautista.

But Justice Nathan Mihara, writing for the Court of Appeal, said that clergy members, like medical professionals, perform important services and have great trust placed in them.

Treating the relationship of pastor and parishioner as “professional, fiduciary, or confidential,” the justice wrote, is consistent with the intent of the Legislature in enacting the statute, since nothing in the statute limits the definition of a professional to someone who is licensed.

Nor, he went on to say, is there anything in the text to suggest that a person must be paid in order to be a professional.

In addition to the edict that the court not insert conditions not apparent on the face of the statute...we foresee practical problems with imposing such a requirement,” Mihara wrote. “It is unclear what credentials would distinguish a ‘lay’ pastor from a ‘professional’ pastor—the distinction defendant attempts to make.”

A number of statutes, he pointed out, refer to the clergy, but none make any distinction between paid or unpaid status. Mihara noted that there is no requirement that a clergy member be paid in order for that person or a parishioner to invoke the “priest-penitent” privilege, and pointed out that Bautista did just that when he was first interviewed by police and said it was difficult to talk about his conversation with Roxana.

Mihara went on to reject the defense contention that the admission of testimony about the religious beliefs and practices of Bautista and his congregants violated the First Amendment.

“The tenets of defendant’s church, including defendant’s religious authority and the congregation’s concern with the appropriate behavior of teenage churchgoers, provided an important context for the...incidents,” Mihara wrote. “The testimony regarding the churchgoers’ beliefs was relevant to understanding the meetings with defendant, defendant’s actions, the girls’ initial acceptance of defendant’s behavior, and the families’ subsequent reactions.”

The case is People v. Bautista, H030458.


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