Judge: Enough evidence to pursue molestation charges

Andre Salvail
The Aspen Times

Pitkin County District Judge Gail Nichols found sufficient evidence Tuesday to allow Aspen’s felony prosecutor to move forward in the case against a Basalt man accused of molesting two young girls.

During a preliminary hearing, Deputy District Attorney Andrea Bryan offered video testimony from the two girls and called three witnesses to the stand in an effort to prove probable cause against Felix Santana-Penaloza, 51, who police say molested the youths when they were between ages 7 and 13. He faces felony charges of sexual assault on a child from someone in a position of trust.

The acts were said to have occurred in Pitkin County and, later, Eagle County. Despite an objection from public defender Sara Steele, Nichols ruled that the prosecution can bring the Eagle County evidence into the case because the alleged crimes originated in Pitkin County. Santana-Penaloza was interviewed and arrested in Basalt by Aspen Police Department personnel on July 19 and has been held in the Pitkin County Jail since then on $500,000 bond.

He was present in court Tuesday and listened to the testimony through the aid of a Spanish interpreter. Bryan showed parts of two videos in which a forensic investigator interviewed both girls about their claims on July 17. Aspen Police Detective Walter Chi said during the hearing that he was present for those interviews and participated by providing input to the investigator from a separate room.

Steele argued that the videos should not have been played because her office was not notified that they would be presented during the hearing and because the interpreter said she was barred from translating the girls’ audio testimony, as it would place her in the role of an expert witness. Nichols nixed Steele’s protests but said that in fairness to the defense, Chi would have to summarize what the girls said to allow Santana-Penaloza to participate in the hearing.

The oldest alleged victim described various incidents in which Santana-Penaloza made inappropriate advances toward her. One incident occurred as she was doing homework, and another was said to have taken place during a celebration for another sibling.

Both girls stated that as they got older, they would fight him off or find ways to call out to other people when he would try to get them alone.

Assistant Police Chief Linda Consuegra testified that she elicited a confession out of Santana-Penaloza at the Basalt Police Station on July 19. Both she and Chi asked him questions that day.

“He let us know how much he was struggling,” Consuegra said, adding that Chi asked Santana-Penaloza if he was struggling due to the allegations.

“(Santana-Penaloza) said that it was, that he felt confined, his life was upside-down and he did not know what he had done when he touched them,” she said. “He stated he just wanted to see how they would feel when he touched them.”

Bryan said it was clear that Santana-Penaloza committed the acts for purposes of “sexual gratification, arousal or abuse.”

“The defendant himself acknowledged that what he was doing was wrong by instructing the girls not to tell anyone,” she said.

Steele argued that none of the evidence presented showed that Santana-Penaloza “was in a position of trust at the time these (alleged incidents) occurred.” She cited testimony from another relative who said he was “rarely” in direct supervision of the children.

But Nichols said that based on living arrangements and other factors, “common sense tells you he was in a position of trust” and that the legal definition of the charges had been met by the prosecution.

Steele also said that the prosecution had not proved sexual contact. Nichols countered that the claim of ejaculation inferred that the alleged acts were for purposes of sexual arousal.

Nichols scheduled Santana-Penaloza’s plea hearing for Jan. 6.