People v. Fernandez

• Decision Date: 11 September 2013
• Docket Number: B236009
• Citation: 216 Cal.App.4th 540,157 Cal.Rptr.3d 43
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jorge Ramirez FERNANDEZ, Defendant and Appellant.

216 Cal.App.4th 540

157 Cal.Rptr.3d 43

The PEOPLE, Plaintiff and Respondent,

v.Jorge Ramirez FERNANDEZ, Defendant and Appellant.

B236009

Court of Appeal, Second District, Division 1, California.

Filed May 20, 2013

Review Denied September 11, 2013

APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas W. Sortino, Judge. Affirmed. (Los Angeles County Super. Ct. No. KA091346)

Nancy J. King, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, J.

Jorge Fernandez appeals from his convictions for sexual abuse of his granddaughters. He contends (1) he was denied due process when the trial court permitted the prosecution to amend the information during trial; (2) instructional errors deprived him of a fair trial; (3) prosecutorial misconduct deprived him of a fair trial; and (4) he received ineffective assistance of counsel. We affirm.

PROCEDURAL BACKGROUND

An information charged appellant with the five felony offenses: lewd act on a child under the age of 14 (Pen.Code, § 288, subd. (a)¹; counts 1 [victim, Jane Doe No. 1], 3 and 4 [victim, Jane Doe No, 2] ); continuous sexual abuse (§ 288.5, subd. (a); count 2 [victim Jane Doe No. 1] ); and oral copulation or sexual penetration with a child under 10 (§ 288.7, subd. (b); count 5 [victim Jane Doe No. 2] ). As to all counts, the information also alleged that the crimes involved more than one victim, within the meaning of section 667.61, subdivision (b).

A 10–day jury trial was conducted from April 12–25, 2011. Following the presentation of the prosecution's case in chief, the trial court granted the prosecutor's motion to dismiss count 1 (§ 1385), and permitted the prosecution to amend the information to change the time periods specified for counts 2 through 5, to conform to proof.

The jury found appellant guilty on all counts, and found true the allegation that the crimes involved more than one victim.

Appellant obtained new counsel and, unsuccessfully, sought a new trial. He was sentenced to state prison for 45 years to life.

FACTUAL BACKGROUND

Prosecution Evidence

1. Counts 1 and 2: Accusations by Jane Doe No. 1

Jane Doe No. 1 was born in December 1999, and was 11 years old when she testified at trial. Martha D. (Martha) is her mother and Ricardo F. is her father. Martha and Ricardo ² never married. Jane Doe No. 1 lived with her mother and had visits with her father. Appellant is Jane Doe No. 1's paternal grandfather.

Ricardo got married when Jane Doe No. 1 was very young, and Jane Doe No. 1 frequently visited her father and stepmother's home while they were married. Ricardo divorced in October 2006, when Jane Doe No. 1 was six years old. He moved to Diamond Bar where he lived in his brother Juan's house alone for a time, until Juan and his family and, later, appellant and his wife, Carmen Fernandez, moved in. Jane Doe No. 1 rarely visited Ricardo after his divorce. Ricardo had no one to watch his daughter, and worked long hours and weekends. He also liked to party and stay out at night. Ricardo only picked Jane Doe No. 1 up for visits every two or three months.

In January 2009 Ricardo moved into an apartment in Pomona with appellant and Carmen. Jane Doe No. 1 said that when she visited her father, he often left her alone with her grandparents because he was working or out partying. Ricardo denied having left his daughter alone with appellant.

Jane Doe No. 1 testified that on numerous occasions when she visited Ricardo, appellant touched her breast and her vagina. Sometimes he touched her outside of her clothes, but most of the time he touched her skin under her clothes. Appellant moved his hand around when he touched her breast. Appellant began touching Jane Doe No. 1 when she was in prekindergarten, and it continued while she was in kindergarten, first, second and third grade. He touched her vagina more than 10 times when she was in the second and third grades. The touching occurred when Ricardo lived at the Diamond Bar home and at the apartment in Pomona.

Once, in the house in Diamond Bar when Jane Doe No. 1 was in second or third grade, she was lying on appellant's bed in his bedroom. Appellant was lying down on his side next to her; both of them were clothed. Appellant started touching Jane Doe No. 1's vagina under her pants. He moved his finger up and down, and inside her vagina. Appellant turned on the television to the Playboy Channel where people were “together naked.” He continued to touch Jane Doe No. 1's vagina while he watched TV. Neither he nor Jane Doe No. 1 said anything. Jane Doe No. 1 could not recall how long the touching lasted, but said appellant “usually” stopped if someone came into the room or the house.

On another occasion at the Diamond Bar house, Jane Doe No. 1 was lying on a reclining chair. She was in third grade. Appellant sat on the chair next to her and, using one finger, reached into her pants and moved his finger inside her body, making Jane Doe No. 1 feel “uncomfortable and weird;” she did not like it. She stayed quiet. In the past she had told appellant to stop when he touched her, but he never did. Appellant touched Jane Doe No. 1's vagina “ a lot of times” when she was in third grade.

On other occasions, appellant came into the kids' bedroom, put his hands under her shirt and squeezed her breasts with both hands. Jane Doe No. 1 was probably in kindergarten or first grade when appellant began to touch her breasts.

On more than one occasion, appellant showed Jane Doe No. 1 his “privates” and told her to touch it, but she refused. Once when she was eight years old and lying dressed on the bed, appellant took his penis out and showed it to Jane Doe No. 1. It was hairy and wrinkled. Jane Doe No. 1 touched appellant's penis at least once at his insistence.

On several occasions, appellant told Jane Doe 1 to put his penis in her mouth. Once she was sitting on the edge of the bed facing the door and appellant was lying behind her. Appellant told her to look and she saw his “privates.” He told her to put it in her mouth. This occurred on several occasions.

Once, appellant held Jane Doe No. 1's hand, forcing her to touch his penis and demonstrating how to move her hand up and down. She kept pulling her hand away. The penis was very hairy.

Someone else was almost always home when appellant touched Jane Doe No. 1. Carmen, in particular, would be in the living room or elsewhere in the house.

It took a long time for Jane Doe No. 1 to disclose to her mother what appellant was doing. Jane Doe No. 1 was afraid her mother would get upset or mad, and appellant told her, “ ‘Don't tell nobody. It's a secret.’ ”

Jane Doe No. 1 was in the third grade when she finally told her mother about the sexual abuse. She first told a school friend who told a school psychologist. The psychologist spoke with Jane Doe No. 1, who said she had lied to her friend. Jane Doe No. 1 did not want people at school to know about what had happened. The counselor contacted Martha on May 29, 2009 and told her about the sexual abuse. Martha and Jane Doe No. 1 went to the police on June 17, 2009. Martha also told Ricardo about the abuse. He went over that day and spoke with Jane Doe No. 1, who started to cry and ran inside the house. Martha obtained a change for Jane Doe No. 1's visitation order to discontinue Ricardo's overnight visits.

Jane Doe No. 1 did not want her mother to tell the police about the abuse because she did not want to hurt appellant. She just wanted Martha to talk to appellant and to make him stop touching her. Jane Doe No. 1 believed he would stop if he knew her mother knew about the touching.

Jane Doe No. 1's health began deteriorating after the disclosure. She developed a cough and asthma, and had trouble sleeping. She underwent counseling and was hospitalized for pneumonia and bronchitis. Her outgoing personality changed, and she became less involved with activities.

On June 29, 2009, Martha met with Carlos, Ricardo's twin brother and the father of Jane Doe No. 2. Carlos asked Martha why Jane Doe No. 1 did not visit the family anymore. Martha told him that appellant had been molesting her daughter. Carlos asked Martha if she was sure. Carlos said he had taken psychology classes and knew that children Jane Doe No. 1's age do not lie. Carlos then made a phone call to find out where his own daughter was. Martha told Carlos he should tell his wife, Paula, about what happened and that he needed to protect Jane Doe No. 2. She told him about the change to Jane Doe No. 1's visitation schedule with Ricardo.

Martha received a call from Paula sometime in May 2010. Martha thought the call was unusual because she and Paula had only spoken three times in 12 years. Paula was getting a divorce from Carlos, and thought Martha might have some advice for her. When the two women met, Paula asked why Jane Doe No. 1 had stopped spending time with the family. Martha told her appellant had been molesting Jane Doe No. 1. Paula began to cry and said the same thing had happened to Jane Doe No. 2, who had told Paula about the abuse months or a year before.

Ricardo watched from the audience as his daughter testified at appellant's preliminary hearing. Jane Doe No. 1 had difficulty testifying and spoke softly. Ricardo was disappointed, which may have shown on his face. Martha sat next to her daughter while Jane Doe No. 1 testified at the preliminary hearing. Martha noticed that Jane Doe No. 1 was having trouble testifying, and also noticed Ricardo in the audience. He looked upset and maintained an angry posture while Jane Doe No. 1 testified. Ricardo had not seen his daughter since April 2010. He believed she did not need him and it was best...