People v. Hernandez

• Decision Date: 26 July 2018
• Docket Number: F073652
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MIGUEL DELACRUZ HERNANDEZ, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL DELACRUZ HERNANDEZ, Defendant and Appellant.

F073652

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

July 26, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. F14910605)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

At the conclusion of a jury trial, defendant Miguel Delacruz Hernandez was convicted of one count of continuous sexual abuse of a minor under 14 years old (Pen. Code, § 288.5, subd. (a)).¹ On April 29, 2016, the trial court sentenced defendant to the upper term of 16 years in prison with custody credits of 229 days.

Defendant contends on appeal the prosecution's reliance on child sexual abuse accommodation syndrome (CSAAS or accommodation syndrome) testimony violated his right to due process because such evidence fails to satisfy the requirements of the Kelly/Frye² rule governing the admissibility of scientific evidence. Defendant argues CALCRIM No. 1193, the pattern jury instruction setting forth how the jury should evaluate accommodation syndrome testimony, impermissibly allows the jury to evaluate the believability of the victim's testimony, which in turn reduces the People's burden of proof. Defendant contends the prosecutor improperly referred to facts not in evidence by vouching for the victim's credibility. Defendant argues that in combination, there was cumulative error. The parties concede a no visitation order imposed on defendant at sentencing must be stricken and also concede there is clerical error in the abstract of judgment.

FACTS

K. was 18 years old at the time of trial. Defendant was her aunt's husband and, in the past, they had babysat her. K. first met defendant when she was five or six years old. In 2003, when she was in the second grade, she would walk home from school with her cousin, J.M., to the home of her aunt and uncle, Sophia and defendant. Her grandmotherwould babysit her and J.M., but the grandmother had a lot of health problems and would often fall asleep.

Defendant would call K. into his room, put her on his bed, and pull her pants and underwear down. Defendant would position himself behind K. and put his penis inside her vagina. K. tried not to think about what was happening. K. felt sick in her stomach after these encounters. This happened two or three times a week throughout the school year. One time defendant put his penis in K.'s anus. Defendant also put his penis in K.'s mouth several times. She never saw anything come out of his penis.

Defendant sexually molested K. only during the school year because K. did not go to defendant's house during the summer. The acts continued to take place regularly the following year when K. was in the third grade. Although K. would tell defendant no, he would not respond. K. was six or seven years old at that time. K. went to a different school for fourth grade, and the sexual molestation stopped.

As she was growing up, K. had memories of what defendant did to her. Her memories became constant her junior year in high school. K. had her first "big boyfriend." Her friends would talk about him and ask K. if she was a virgin. This bothered K. because she did not know how to answer the question. When her friends mentioned this topic, it caused K. to remember all the events with defendant, and these memories affected her school studies. K.'s mother asked K. if she was having issues in school. K. initially told her mother she was not doing her homework or not paying attention. K.'s mother would make K. sit out during soccer practice and stay in the library. Soccer was important to K.

K. explained she wanted to tell her mother about the incidents but did not because she did not want to upset her mother or the rest of the family. K. was concerned about the effect of disclosure on her family. K. did not expect her parents to find out about the molestation on their own, and she was not looking forward to telling them about it. One day after being picked up from the library, K.'s mother was yelling at her about not doingher work. K. did not respond to her mother's questions because she was "zoned out." K. asked her mother if her aunt and defendant were still in a relationship. K. realized at that moment the secret she was keeping "was eating [her] alive." K. was about 16 years old when she told her mother what had happened between her and defendant. K.'s father called the sheriff that evening, and K. gave a statement to Detective Jennifer Federico.

On cross-examination, K. was asked if, when she was in second and third grades, she always told her mother when she was hurt or injured. K. replied she had told her mother right away when she broke her thumb when she was little. K. knew the relationship between her aunt and defendant was not good. She was aware of difficulties in their relationship when she was in third grade because they would argue and not speak to each other. K. had never discussed the details of the case with her aunt or her mother.

K.'s mother (Mother) testified K. was the youngest of her three children. She owned a house that she rented to her sister, Sophia. Defendant moved in with Sophia at some point. Mother recalled K. would run from the house when Mother arrived to pick her up after being babysat, and she would ask her mother why it took her so long to arrive. K. would also say she did not like being without her parents around. More than once, K. left her backpack behind at the house. K. avoided defendant. Mother remembered the day K. told her defendant had sexually molested her. Mother had cried and yelled.

Sophia testified she was getting divorced from defendant at the time of trial. Sophia married defendant in 2004. K. was her youngest niece. In 2002, defendant had a job but he would miss work a lot, and he was let go a few months later. In 2003, defendant worked at a pallet company but hurt his back and claimed he could not work. Defendant wanted Sophia to check in with him in advance when she was coming home from work. Defendant told Sophia that K. was a crybaby and she was always complaining or crying. Sophia noticed K. seemed nervous around defendant, but she never saw him do anything inappropriate to K., and she did not think much of K.'sbehavior at the time. Sophia found out defendant had children with two other women in Mexico and he was still married to one of them. Sophia was advised her marriage to defendant was invalid.

J.M. was 19 years old at the time of trial and was working for K.'s father. J.M. recalled defendant was often at the house when J.M. came home from school in second grade. Defendant had J.M. go outside to do chores, and he was not allowed back in the house again until defendant told him to come inside. This happened every day after school. J.M. recalled an incident when he was taking out trash, heard a strange noise, and saw a shadow in the garage area. J.M. could not find defendant or K. Afterwards, he saw K. come from a place she had no reason to be. J.M. asked K. if she was okay; she said she was. J.M. never saw defendant do anything inappropriate to K. and did not see defendant in the garage where he had seen K. come from that day.

Fresno County Deputy Sheriff John Erickson testified that on November 4, 2013, he was dispatched regarding a report of a prior molestation, and he interviewed K. alone. She told him after she would walk home from school, defendant would take her to a back bedroom away from her grandmother and molest her. Erickson notified the Fresno Police Department of the reported molestation because that agency had jurisdiction over the investigation.

Detective Federico was assigned to this case in November 2013. She questioned K. on November 18, 2013. After the questioning began, K.'s mother left and only Federico and Detective Neal Cooney were present with K. K. identified defendant from a photographic lineup as the person who had performed three different kinds of sex acts on her. Federico also spoke with J.M. and Sophia. The parties stipulated district attorney senior investigator Jesse Perez, if called to testify, would confirm he spoke with Mother on February 25th. Mother had stated that on one occasion she went to pick up K. at defendant's house, and K. ran out of the house ready to go. Furthermore, when Mother asked K. where her backpack was, K. said she did not need it and wanted to go home.

Margie Jessen, a Doctor of Nursing Practice as well as a registered nurse and the owner and founder of forensic nurse specialists, had testified as an expert about 50 times and had performed forensic exams on approximately 600 children. Dr. Jessen did a nonacute exam on K. on November 23, 2013. K. told Dr. Jessen there was penile penetration of her vagina and anus as well as oral copulation. Jessen made no positive physical finding at the exam; this was not surprising to Jessen. K.'s hymen was intact, and Dr. Jessen explained she has found the hymen intact in 95 percent of the exams she performs.

Accommodation Syndrome Testimony

David Love testified as an expert on CSAAS. Love had a graduate degree in psychology with a specialty in child sexual abuse and sexual therapy. He was the founder and executive director of Valley Community Counseling Services in San Joaquin County. Love was a part-time instructor at the UC Davis...