P. v. Hernandez
Filed 7/30/12 P. v. Hernandez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JORGE PACHECO HERNANDEZ,
Defendant and
Appellant.
G044335
(Super. Ct.
No. 08WF1791)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Lance Jensen, Judge.
Affirmed.
Athena Shudde, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Jorge Pacheco
Hernandez of sexual penetration of a child under age 10 (Pen. Code,
§ 288.7, subd. (b)) and committing a lewd act on a child under age 14
(§ 288, subd. (a)) with substantial
sexual contact (§ 1203.066, subd. (a)(8)). Hernandez contends the trial court
prejudicially erred by admitting the testifying child victim’s out of court
statements to a police officer (Evid. Code, §§ 1235, 1237; all statutory
references are to the Evidence Code, unless otherwise noted) and a social
worker (§ 1360). For the reasons
expressed below, we affirm.
I
Facts and
Procedural Background
In
August 2008, seven-year-old M. and her parents shared a bedroom in a four
bedroom house in Garden Grove. Hernandez rented one of the other bedrooms.
On
August 21, M. told her mother, Maria, that Hernandez had touched her
inappropriately after her parents left for work on August 18. Maria arranged for her 15‑year-old son,
G., to watch M. the next morning. After
Maria left for work, G. saw Hernandez enter the bedroom M. shared with her
parents and where she was sleeping.
G. informed Maria, who returned home from work and confronted
Hernandez. After initially denying any
abuse, he ultimately admitted he had “touched” or “grabbed” M.’s “parts” on a
prior occasion. Maria reported the incident
to the police.
M.
testified Hernandez came into the room and “got on [her].” He touched her on the back, bottom, legs and
her “part,” meaning her vagina. She did
not remember if he put his finger in her part.
She did not remember telling a police officer in a pretrial interview
that Hernandez inserted his finger into her vagina, but she testified that she
truthfully described Hernandez’s actions to the officer. At some point after the incident, Hernandez offered
M. $10 not to tell anyone he had touched her inappropriately. She told him she did not want the money. At points during her direct examination,
M. testified she did not remember anything about the incident “because
it’s been a long time.” On
cross-examination, M. explained she did not remember what happened because she
was “asleep the whole time,” and only learned of the incident because Hernandez
told her what happened.
Officer
Luis Ramirez interviewed M. shortly after he arrived at the residence on August
22. Although M. appeared very nervous
and at times was reluctant to discuss the incident, she described how she was
molested. M. told Ramirez , she awoke
when her parents left for work to kiss them goodbye, then went back to sleep. About 30 minutes later, she heard the bedroom
door open and felt somebody sit on the bed.
The person touched her back, arms, legs, and buttocks, and she felt a
finger penetrate her vagina. She ignored
the touching and attempted to continue sleeping. She did not immediately report the incident
to her parents because she forgot about it.
Although she could not identify the person who touched her, she knew it
was Hernandez because a few days after the molestation, he admitted he touched
her.
A
child abuse services team (CAST) social worker also interviewed M. about
the incident. M. recounted how Hernandez
entered her room, sat on her bed, and grabbed her “part” that she used “to make
peepee.”
part, and only knew about it because Hernandez later described the incident to
her. M. asked him why he came in the
bedroom. Hernandez replied, “‘[j]ust
because,’” and offered her $10 to remain quiet when M. threatened to tell
her mother. She replied she did not want
any money. Hernandez responded he would
“‘go in again.’”
Later
in the interview, M. related she had been sleeping in a skirt with shorts when
Hernandez entered the bedroom. She felt
him remove the skirt. “He took off my
skirt. And, and then I felt that he took
off the, um, my panties and I felt everything that he did to me.” He touched her between her legs and on the
outside of her “butt.” She described how
he turned her around or over, and touched her “like this. And . . . just with this finger, he put it
inside me.” Asked about being asleep and
feeling his hand and finger, M. said “I did feel it.” She did not see who was touching her because
she was lying face down, but learned later from Hernandez he was the person who
touched her.
Still
later in the interview M. stated she was asleep and “did not know” what
happened. But subsequently she said she
did remember “when he . . . did all that.”
She forgot to tell her mom about the abuse on the day it happened
“because it was already night.” After a
short break in the interview, M. stated that she forgot to mention Hernandez
climbed on top of her and touched his chest before he removed her skirt and
panties. He also showed, or said he was
going to show, her a magazine with nude women that he kept either in his car or
under his bed.
Ramirez
encountered Hernandez as he was packing to leave the residence. Hernandez admitted he “touched the little
girl” and had made a “stupid mistake.”
He explained he had been perusing a pornographic magazine, became
sexually aroused, and touched M.’s back, arms, buttocks area, and the top
portion of her vagina over her clothing.
The incident lasted about a minute.
He denied digitally penetrating M.
Ramirez found an adult pornographic magazine in Hernandez’s bedroom
dresser.
A
forensic nurse who examined M. a few weeks after the incident, testified M.’s
genital area appeared normal. A CAST
pediatrician explained penetration would not necessarily result in injury, and
the vaginal area can heal quickly without leaving evidence of abuse.
Following
a trial in June 2010, a jury convicted Hernandez as indicated above. In October 2010, the trial court sentenced
Hernandez to 15 years to life in prison for the sexual penetration conviction
(Pen. Code, § 288.7, subd. (b)), and imposed a concurrent term for the
lewd act conviction.
II
Discussion
A. The
Trial Court Did Not Abuse Its Discretion by Admitting M.’s Statements to the
CAST Social Worker
The
prosecutor moved to admit M.’s statements to the CAST social worker under
section 1360.
title="">[2] Hernandez’s lawyer objected M. was not
“competent” to testify about the “charged offenses,” because M. repeatedly
stated to the social worker she was “asleep the whole time and . . . didn’t
feel anything,” and the “only way she knows it happened at all is that . . .
the defendant told her about it.”
Defense counsel requested that M. testify at a hearing outside the
jury’s presence to determine whether she was awake during the incident because
her inconsistent statements were “all over the map” and she was not “a
percipient witness to this.” The
prosecutor opposed Hernandez’s request, arguing that M. was competent to
testify and her statements in the CAST interview were reliable.
Addressing
the issue outside the presence of the jury, the trial court, after watching the
DVD and reading the transcript of M.’s CAST interview, found M. competent
to testify. The court noted there was
ample basis to attack her credibility “as to the basis and the foundation as to
that which she’s going to testify.” The
court stated M. had an “evolving story,” but there was evidence she had a
“semblance of some memory of something or some independent grounds other than
her statements to justify the testimony.”
The court declined Hernandez’s request to have M. testify at a hearing outside
the presence of the jury.
Before
the prosecutor played the DVD for the jury, Hernandez again objected to the
CAST interview. He argued M.’s CAST
statements were not inconsistent with her testimony (§§ 1235, 770) unless
the court found M.’s professed lack of memory during her testimony was a
deliberate evasion. The court overruled
the objection. After the court played
the DVD of the CAST interview, defense counsel complained section 1360 was
inapplicable because the trial court did not conduct a hearing outside the
jury’s presence “about sufficiency of reliability. The court never did that.”
Hernandez
contends he suffered a due process violation because the prosecution failed to
establish the reliability of M.’s CAST statements. (§ 1360, subd. (a)(2).)
The
Attorney General asserts Hernandez forfeited the claim (People v. Stewart (2004) 33 Cal.4th 425, 492; § 353, subd.
(a)) because he did not contest the reliability of M.’s CAST statements,
objecting only that M. was not “competent to testify” and insufficient evidence
existed to establish M. “was a percipient witness” because of her conflicting
statements on whether she was awake during the incident.
Hernandez
argues he raised the issue “under the umbrella of ‘competency,’” because his
trial court objection “went precisely to the question of whether the CAST
interview was trustworthy or worthy of confidence — the hallmarks of
reliability.” He asserts the trial court
understood his objection raised the issue of reliability, but the court found
the “interview had the earmarks of reliability, as did [M.’s] statements . . .
despite the inconsistencies regarding the acts and the complainant’s ability to
perceive them.”
The
terminology the parties employed appeared at times to conflate the issue of a
witness’s competency to testify and the foundational requirement a witness
testify only from personal knowledge.
Hernandez’s lawyer effectively objected to the prosecution’s motion to admit
the CAST interview under section 1360 by asserting M. was “all over the map” in
her description of the incident to the CAST worker. The court addressed the issue outside the
presence of the jury, and the trial court implicitly relied on section 1360 to
admit the CAST interview. Accordingly,
we conclude Hernandez raised the issue of reliability of the CAST statement
under section 1360.
Turning
to the merits of Hernandez’s claim, he contends the trial court erred in
admitting M.’s CAST interview because her statements were unreliable. “During the detailed interview, [M.] gave
conflicting statements. She said
appellant digitally penetrated her. . . .
Then she said she did not see who touched her because she was lying face
down. . . . However, she knew appellant
was the assailant because he told her so. . . . Further into the CAST interview, [M.]
indicated that appellant sat down on her bed, touched her inappropriately and
then removed her skirt, turned her over and engaged in additional acts of
inappropriate touching. . . . Later she
said she actually was asleep when it happened. . . . Further on, she did not remember any digital
penetration or the acts she described having occurred. She knew they occurred because appellant told
her so. . . . When asked for additional
information, she said she felt a finger inside her.”
We
review the trial court’s admission of evidence under section
1360 for abuse of
discretion. (People v. Roberto V. (2001)
93 Cal.App.4th 1350, 1367.)
name="_ftnref4" title="">[4] Under that standard, reversal is not required
unless the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner resulting in a miscarriage of justice. (People v. Hovarter (2008) 44
Cal.4th 983, 1004.)
The
nonexhaustive list of factors cited as relevant to the reliability of hearsay
statements made by child
witnesses
cases are (1) spontaneity and consistent repetition; (2) the mental state of
declarant; (3) use of terminology unexpected of a child of a similar age; and
(4) lack of motive to fabricate. (
15, 30; Eccleston,
61 Cal.App.4th 1312, 1330.) The
child’s ability to understand the duty to tell the truth and to distinguish
between truth and falsity is also a factor in determining the reliability of
his or her extrajudicial statements. (
to testify at trial because he or she did not understand the duty to tell the
truth, does not necessarily render the child’s hearsay statements unreliable,
but was merely a factor for the trial court to consider].) These factors relate to whether the child
declarant was likely to be telling the truth when the statement was made.
The
trial court did not abuse its discretion in finding the time, content, and
circumstances of M.’s CAST statements provided sufficient indicia of
reliability for admissibility under section 1360. The record supports a finding that at the
time of the incident and the CAST statement a few weeks later, M., a
seven-year-old second grader, was capable of expressing herself and understood
the difference between the truth and a lie.
It also reflected she was capable of sensing and recalling any abuse, as
evidence by her spontaneous disclosure of the abuse to her mother a few days
after the incident. She repeated the
claim of abuse to Officer Ramirez the following day. She then provided a lengthier and more
detailed version of the incident a few weeks later to the CAST
interviewer. Without leading questions
and in the nonthreatening environs of the social services facility, M.
explained how Hernandez came into her room and abused her, as recounted in
detail above. M. had no apparent motive
to fabricate. Significantly, defendant
corroborated the abuse, disputing only whether he inserted his finger into her
genitals. Although M.’s statements and
testimony presented issues concerning whether M. was asleep and remembered the
abuse, particularly whether Hernandez digitally penetrated her, or whether M.
only learned about the abuse from Hernandez, we cannot say the trial court
acted arbitrarily or capriciously in admitting the CAST statements and allowing
the jury to resolve any factual disputes.
B. The Trial Court Did Not Abuse Its Discretion by Admitting M.’s
Statements to Officer Ramirez
Hernandez
also contends the trial court abused its discretion by admitting M.’s
statements to Officer Ramirez. We review
the evidentiary ruling for abuse of discretion.
(People v. Avitia (2005) 127
Cal.App4th 185, 193.)
Defendant
objected in the trial court the statements were not inconsistent with M.’s
testimony, and section 1360 did not apply unless the court conducted a hearing
on reliability. He also asserted the
statements were unreliable. The
prosecutor responded the statements were admissible under the hearsay exception
for prior inconsistent statements (§ 1235) because they contradicted her
testimony and her CAST statements “that she was asleep and she did not recall”
anything “and only knew because defendant told her.” The prosecutor also asserted M.’s testimony
was “evasive to the point where the court could find her reluctance such that
this statement should come in . . . .”
The trial court ruled the statements were admissible under
section 1202 (impeachment of a hearsay declarant), section 1235
(inconsistent statement), and with the proper foundation, section 1237 (past
recollection recorded). The court later
ruled the statements had been admitted for the truth of the matters asserted.
Relying
on People v. Ledesma (2006) 39
Cal.4th 641, 710 (see also People v.
Gunder (2007) 151 Cal.App.4th 412, 418), Hernandez argues section 1235 did
not support admission of M.’s statement to Ramirez because M. testified she did
not remember the event, and the lack of recollection cannot be inconsistent
with a prior statement describing the event unless there is evidence the
claimed lack of memory amounts to a deliberate evasion.
Section 1235
provides, “Evidence of a statement made by a witness is not made inadmissible
by the hearsay rule if the statement is inconsistent with his testimony at the
hearing and is offered in compliance with Section 770.”
“inconsistent statements of witnesses because the dangers against which the
hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined
and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is
more likely to be true than the testimony of the witness at the trial because
it was made nearer in time to the matter to which it relates and is less likely
to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it
and can observe his demeanor and the nature of his testimony as he denies or
tries to explain away the inconsistency.
Hence, it is in as good a position to determine the truth or falsity of
the prior statement as it is to determine the truth or falsity of the
inconsistent testimony given in court.”
(Cal. Law Revision Com., com., 29B pt. 4, West’s Ann. Evid. Code (1995
ed.) foll. § 1235, p. 225.)
M.
testified Hernandez came into the room and “got on [her].” He touched her on the back, bottom, legs, and
her “part,” meaning her vagina, but did not remember if he digitally penetrated
her. She also did not remember telling
the investigating police officer that defendant inserted his finger, but
testified she truthfully described the incident to the officer. At some point after the incident Hernandez
spoke to her, told her he touched her, and wanted to give her $10 to remain
quiet. Hernandez did not tell her what
part of her body he touched. At other
points during her direct examination, M. stated she did not remember anything
about the incident “because it’s been a long time.” She denied that she did “not want to talk
about it,” and remembered telling her mother that Hernandez had come into her
room and touched her. On
cross-examination, M. testified she did not tell her mother what happened
because she was “asleep the whole time” and did not know what had
happened. She only found out what
happened when Hernandez told her.
M.’s
pretrial statements to Ramirez differed from her trial testimony. M. told the officer that about 30
minutes after her parents left for work, she heard the bedroom door open, but
ignored it and continued to sleep. She
felt somebody sit on the bed, but she continued to ignore it. The person touched her back, arms, legs, and
buttocks and a finger penetrated her vagina.
She did not react and tried to ignore the touching. M. claimed she did not immediately report the
incident to her parents because she forgot about it. She could not identify the person but knew it
was Hernandez because he later admitted he touched her.
M.’s
statements to Officer Ramirez she was aware of the touching but tried to ignore
it were inconsistent with her testimony she was asleep during the incident and
unaware of the abuse. The trial court
therefore did not abuse its discretion in admitting M.’s statements to Officer
Ramirez under section 1235.
M.’s
statements to Ramirez also were admissible under section 1237, which
provides as follows: “(a) Evidence of a
statement previously made by a witness is not made inadmissible by the hearsay
rule if the statement would have been admissible if made by him while
testifying, the statement concerns a matter as to which the witness has
insufficient present recollection to enable him to testify fully and
accurately, and the statement is contained in a writing which: [¶]
(1) Was made at a time when the fact recorded in the writing actually
occurred or was fresh in the witness’ memory; [¶] (2) Was made (i) by the
witness himself or under his direction or (ii) by some other person for the
purpose of recording the witness’ statement at the time it was made; [¶]
(3) Is offered after the witness testifies that the statement he made was
a true statement of such fact; and [¶] (4) Is offered after the writing is
authenticated as an accurate record of the statement. [¶]
(b) The writing may be read into
evidence, but the writing itself may not be received in evidence unless offered
by an adverse party.”
Hernandez
apparently agrees the prosecution established the foundation to admit M.’s
statement under section 1237. M.’s
testimony suggested she had insufficient present recollection to testify fully
and accurately. Her statement to Ramirez
would have been admissible if made by her while testifying. M.’s statements were presumably recorded in
Ramirez’s police report made at a time when the facts were fresh in
M.’s memory, and the statement was offered after M. testified her
statement to Ramirez was true. (See
467 (Cowan) [whether an adequate
foundation exists for admission of a statement under section 1237 turns on
whether the statement was reliable].)
Hernandez
argues “the reliability of the statement was questionable” because the
statement was “perfunctory[,] there was no indication Ramirez was schooled in
the questioning of a child witness[,] and, more importantly, Ramirez’[s]
inquiry did not include a question whether [M.] was describing acts that
occurred while she was awake or asleep.”
Factors potentially affecting truthfulness at the time of the prior
statement are matters for cross-examination and “the weight of these factors,
and their effect on the statement’s credibility, [are] for the jury to
decide.” (Cowan, supra, 50 Cal.4th
at p. 468 [witness was cross-examined extensively about his drug use, mental
illness, multiple motives to lie, and other factors potentially affecting his
truthfulness at the time he made
his prior statement].)
name="_ftnref7" title="">[7]
Based
on the foregoing, we conclude the trial court did not err in admitting M.’s
pretrial statements to Ramirez.
Disposition
The
judgment is affirmed.
ARONSON,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
The prosecutor played a digital
video disk (DVD) of the CAST interview for the jury.
Section 1360 states, in
pertinent part: “(a) In a criminal
prosecution where the victim is a minor, a statement made by the victim when
under the age of 12 describing any act of child abuse or neglect performed with
or on the child by another, or describing any attempted act of child abuse or
neglect with or on the child by another, is not made inadmissible by the
hearsay rule if all of the following apply:
[¶] (1) The statement is not
otherwise admissible by statute or court rule.
[¶] (2) The court finds, in a
hearing conducted outside the presence of the jury, that the time, content, and
circumstances of the statement provide sufficient indicia of reliability. [¶]
(3) The child either: [¶] (A) Testifies at the proceedings. [¶]
(B) Is unavailable as a witness, in which case the statement may be
admitted only if there is evidence of the child abuse or neglect that
corroborates the statement made by the child.”
to be a witness and no person is disqualified to
