People v. Hernandez
| Decision Date | 03 May 2018 |
| Docket Number | D073117 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CARLOS HERNANDEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Stanford E. Reichert, Judge. Affirmed with conditions and remanded with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Defendant and Appellant.
A jury convicted Carlos Hernandez of five counts of forcible rape of a child over 14 years of age (Pen. Code, § 261, subd. (a)(2); counts 1-5), five counts of forcible oral copulation with a minor victim over 14 years of age (Pen. Code, § 288a, subd. (c)(2)(C); counts 6-10), and five counts of forcible sexual penetration by a foreign object of a minor victim over 14 years of age (Pen. Code, § 289, subd. (a)(1)(C); counts 11-15). The court sentenced Hernandez to an determinate term of 155 years in state prison, consisting of upper consecutive terms of 11 years each on counts 1 through 5, 10 years each on counts 6 through 10, and 10 years each on counts 11 through 15.
Hernandez contends: (1) the trial court erred by admitting evidence of uncharged sexual misconduct evidence under Evidence Code1 section 1108; (2) the modified CALCRIM No. 1191 jury instruction interfered with the presumption of innocence and his right that the jury determine guilt on proof beyond a reasonable doubt; (3) the court prejudicially erred by admitting into evidence the victim's tattoos and their meaning, which constituted hearsay; (4) the court prejudicially erred by failing to instruct the jury that it could not use expert testimony on delayed disclosure of abuse to determine the truth of the allegations against him; (5) the court used the wrong legal standard, abused its discretion, and denied him his rights to due process and a fair trial when it denied his new trial motion on grounds of juror misconduct; and (6) the court abused its discretion in denying his request for juror contact information. He argues if this court finds he forfeited his evidentiary or instructional error claims, that his counsel was prejudiciallyineffective for failing to object below. We will conditionally affirm the judgment and remand with directions that the trial court proceed in accordance with Code of Civil Procedure section 237, as more fully set forth below.
Hernandez does not challenge the sufficiency of the evidence of his convictions, thus, we summarize the background facts with enough detail to assess his claim that the court erred by admitting uncharged offenses involving Jane Doe, the victim in this case. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.) As for his other appellate contentions, we state facts and procedure relevant to those in the parts of our opinion addressing them.
In August 2011, Hernandez committed a series of sexual assaults on Doe, the then 15-year-old sister of Hernandez's wife, L.R. Doe was staying with L.R. and Hernandez for a week during the summer at their Rialto home, as she had done in past years, to spend time with her niece and nephew. During that time, Doe slept in L.R.'s guest bedroom, but she spent a lot of time alone with Hernandez, usually watching television at night. Doe considered Hernandez her best friend; she and Hernandez texted weekly about Doe's school and Hernandez's work, and on occasion Hernandez furnished her with beer.
On the evening of August 2, 2011, Doe and Hernandez watched television in the living room after the children had gone to bed. Doe then went to the guest bedroom and closed the door, changed into pajamas, got under the bed covers, and turned on thetelevision in that room. After a few minutes, Hernandez entered the guest room, laid on the bed on top of the covers and watched television with Doe. They wrestled with each other as they had done before in front of family members, then stopped to catch their breath, and Hernandez lifted Doe's shirt to fan himself. When they began watching television again, Hernandez began rubbing Doe's lower calf, then the inside of her thigh, then her vagina, in a circular motion over her clothing. Hernandez asked Doe if she wanted him to stop; she told him yes and moved away, but after a minute he moved closer to her and began rubbing her vagina again over her clothing. Scared and hurt, Doe tried to push his hand away, but Hernandez was stronger and she was unsuccessful. Hernandez then lifted her waistband and underwear and began rubbing Doe on her bare skin, then penetrated Doe's vagina repeatedly with his finger. Doe was scared and afraid Hernandez was going to hit her, as she had never seen that side of him; she thought about screaming but did not want to scare the children. After a while, Hernandez stopped. He left a few minutes later. Doe cried.
The next night, Hernandez entered the guest bedroom again, closed the door, and watched television with Doe while they drank two or three beers, which they commonly did. Hernandez again started rubbing Doe's vagina over her clothes, then under her clothes, and then penetrated her vagina with his fingers while Doe tried to push his hand away. He then pulled Doe's pants and underwear down, and penetrated Doe's vagina with his tongue. Hernandez removed his shorts and underwear, and inserted his penis. The assault ended when Hernandez grabbed Doe's hand and made her rub his penis until he ejaculated.
On the nights of August 4, 5, 6, and 7, 2011, Hernandez assaulted Doe in the guest room in the same manner, with digital penetration, oral copulation and vaginal intercourse. On these occasions, Hernandez used a condom.
On October 2, 2013, Doe generally disclosed the assaults to a teacher, who took her to a police station to report the incidents.
In the People's trial brief, the prosecutor asked to admit evidence of other incidents of uncharged sexual assaults by Hernandez against Doe occurring after August 2011 in different cities. At the same time, Hernandez moved in limine to exclude the uncharged instances of sexual misconduct on grounds they had minimal probative value that was outweighed by their prejudicial effect, the prosecution did not introduce sufficient foundational evidence to admit them, and the incidents were only introduced to prove his propensity to commit the charged crimes. At the hearing on the matter, defense counsel further pointed out the district attorney had elected not to prosecute those incidents; she argued they were remote and undated, they would confuse the jury, and they would be inflammatory.
The court initially excluded the evidence but later permitted its introduction as relevant to Doe's credibility and Hernandez's disposition to commit the offenses. The court ruled the acts, which occurred in 2012 and 2013, were specific enough with respect to location and time; the uncharged incidents were not too remote from the charged acts; the jury would not be confused or distracted because the misconduct involved the same individuals and were similar acts; the acts were not more inflammatory than the chargedacts; any burden on Hernandez was alleviated by the trial schedule; and there was no less prejudicial alternative to submission of the evidence. As for the certainty of the uncharged acts' commission, the court found that depended on witness credibility, an issue for the jury.
Consequently, at trial, the prosecutor elicited Doe's testimony that after August 2011, she continued to spend time with Hernandez during school breaks in 2012 and 2013, she otherwise saw him about once a month, and his sexual assaults continued during that time until the last incident on May 11, 2013.
In one incident between August 2011 and May 2013, Doe had stayed at Hernandez's house and he was driving Doe back home when his car began to overheat. Hernandez stopped at a car mechanic's shop. While he and Doe waited in the waiting room, he began rubbing her vagina outside of her clothing.
In another incident, Hernandez purchased beer and drank it with Doe, then took Doe to a movie theater in Norwalk. Once in the theater, Hernandez tried to put his hand down Doe's pants, but she pushed him away. He then grabbed her hand and put it down his pants and underwear and forced her to rub his penis until he ejaculated. After the movie, they went to a fast food restaurant and parked. There, Hernandez again tried to put his hand down Doe's pants, but Doe was able to push him away.
Between August 2011 and June 2012, Hernandez picked up Doe in his car under the guise of tutoring her, but took Doe to a motel in Pico Rivera. When he opened the motel room door, Doe refused to enter because it smelled of cigarettes and had stains on the comforter and floor. Hernandez then drove to a movie theater parking lot where heput his hand down Doe's pants, rubbed her vagina under her clothes, then penetrated her with his fingers. When other cars appeared, he drove to a lake, instructed Doe to get in the back seat and pulled down her pants and underwear while she struggled to keep them up. He then penetrated her vagina with his fingers, then his tongue while penetrating her anus with his finger. Doe began to cry, but Hernandez removed his shorts and underwear, grabbed Doe's head and forced her to orally copulate him. He then put on a condom and raped her. At trial, Doe...
To continue reading
Request your trial