People v. Fernandez

THE PEOPLE, Plaintiff and Respondent, v. JUSTO PULCIANO FERNANDEZ, Defendant and Appellant.

C080861

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

January 20, 2021

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKCRFE20140008190, SF129708A)

Defendant sexually molested two young girls. On occasions in 2000 and 2001, defendant entered the room where his niece, N.D., was sleeping and touched her breasts and vagina. N.D. was under the age of 14 at the time. In October 2014, defendant touched the vagina of the victim J.D., who was also under the age of 14 at the time. J.D. is unrelated to defendant and his molestation of her took place in a church parking lot. A jury found defendant guilty of four counts of violating subdivision (a) of Penal Code section 288¹ and found true allegations as to each count that defendant committed the same crime against multiple victims within the meaning of section 667.61, subdivision (e)(4). The trial court sentenced defendant to an aggregate term of 60 years to life, consisting of four consecutive terms of 15 years to life.

On appeal, defendant asserts (1) that the trial court prejudicially erred in admitting, pursuant to Evidence Code section 1360, the entirety of video recorded interviews of the victims conducted by interviewers at the Child Advocacy Center (CAC). Defendant asserts that the recordings should have been redacted to present the jury with only so much of the victim statements as actually "describ[ed] any act of child abuse," within the meaning of Evidence Code section 1360 rather than the entire interviews. Defendant further asserts that (2) the trial court violated ex post facto principles in sentencing him on counts 2, 3, and 4, all of which involved N.D., under the version of section 667.61 that was effective at the time of sentencing rather than the version of that section that was in effect at the time of the 2000 and 2001 offenses. According to defendant, because he was probation eligible in 2001, he did not qualify for life sentencing under the version of section 667.61 in effect at the time of those offenses. Defendant also asserts that (3) the matter must be remanded for the trial court to exercise its discretion to sentence him to probation or to choose between concurrent and consecutive life sentences.

We conclude that the trial court properly admitted the full interviews conducted with the victims at CAC. We further conclude that, contrary to defendant's contention, he was not statutorily eligible for probation under the sentencing scheme in effect at the time of his 2000 and 2001 offenses, and, consequently, he was properly sentenced under section 667.61. However, we agree with defendant, and accept the People's concession, that, on this record, we cannot determine whether the trial court was aware it had thediscretion to sentence defendant on counts 2, 3, and 4 to concurrent or consecutive sentences, and, in any event, the court did not state specific reasons for imposing consecutive sentences. We remand for resentencing, at which the trial court is to exercise its discretion to choose whether to impose concurrent or consecutive sentences on counts 2, 3, and 4, and, if it imposes consecutive sentences, to state its reasons for doing so. We will also order the correction of the abstract of judgment, and that, in resentencing defendant, the trial court impose all appropriate penalty assessments.

In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Defendant was charged with four counts of lewd acts upon a child under the age of 14 (§ 288, subd. (a); counts 1-4). In count 1, the information alleged that, on or about October 11, 2014, defendant touched J.D.'s vagina over her clothes, and that J.D. was under the age of 14 at the time. In count 2, the information alleged that, in or about October 2000, defendant touched N.D.'s breasts, and that, at the time, she was under the age of 14. In count 3, the information alleged that, in or about January 2001, defendant touched N.D.'s breasts, and that, at the time, she was under the age of 14. In count 4, the information alleged that, in or about January 2001, defendant touched N.D.'s vagina, and that, at the time, she was under the age of 14. The information further alleged as to each count that defendant committed the same crime against multiple victims within the meaning of section 667.61, subdivision (e)(4).

Prosecution Evidence

Incidents Involving Victim N.D.

N.D. was an adult at the time of trial. When she was nine or ten years old, she frequently visited her Aunt S's house. Defendant, who was S's husband, and their two daughters (N.D.'s cousins) also lived in the house.²

N.D. testified that defendant would sneak into her aunt's room where N.D. was sleeping "and his hands would either go down my pants, underneath the underwears, and touch my genitalia, as well as there were incidents where he had me touch his genitalia." She testified that this occurred "for about five years," and that "it started at the age of five until I finally said something at the age of ten."

N.D. explained that when defendant touched her genitalia, she was referring to her vagina, and when she said defendant would have her touch his genitalia, she was referring to his penis, although she could "only recall one instance for that." Defendant touched her both over her clothing and under her clothing. Sometimes he touched her "skin-to-skin." He also touched her breasts, although, when he started, "it wasn't too developed so there wasn't much to touch."

N.D. testified that these incidents occurred "almost every time I visit[ed] my aunt. And I visited my aunt frequently. Almost every weekend or every other weekend." Sometimes defendant would not be able to touch N.D. when N.D. slept in her aunt's room; according to N.D, "it really would depend on his opportunity, whether she was really asleep or she wasn't."

N.D. also recalled an incident when defendant "was eating a slice of melon and said that the taste of the melon would be similar to having to . . . taste my vagina."

Defendant warned N.D. that if she said anything, she would no longer be able to visit and see her aunt and her cousins. N.D. testified that she did not report defendant's conduct earlier because she feared that, if she did, she would no longer be able to go to her Aunt S's house, and her aunt was "like [her] second mother." At some point, when N.D. was in the fifth grade, she was at school speaking with a substitute teacher and some other children, and she brought the issue up in conversation. After N.D. disclosed the information to the teacher, another aunt with whom she was living at the time took N.D. to the police station. She did not recall what happened after that.

Speaking of the time after she reported the matter, N.D. testified that her family did not believe her. And S told N.D. she had caused her children to be taken away.

N.D.'s CAC Interview and Her Trial Testimony About the Interview

At trial, N.D. testified she did not recall making a statement at CAC in July 2001. She did remember going into a room there with teddy bears in it, but she did not recall her statement or any conversation that took place. The prosecution played for the jury a video recording of N.D.'s statement at CAC and a transcript of the recording was distributed to the jurors.

During the interview, N.D. told the interviewer she was 10 years old and that she had finished the fourth grade. She acknowledged she had told her teacher that something had happened to her. N.D. stated she told her teacher about her uncle, defendant,³ "who touched me places I didn't like." The last incident N.D. could recall occurred in Januaryat her aunt's house in Stockton. When the interviewer asked N.D. what happened, N.D. responded that she did not know because "normally he does it when I'm sleeping." N.D. continued, "[s]o I really don't . . . what he did or anything but . . . sometimes I wake up and he (unintelligible) touched me in places I don't like." N.D. stated that, when the incident occurred in January, she was in her Aunt S's room. She stated that S was in the room at the time, but "he tried to sneak in when my aunt won't hear him 'cause she's a light sleeper." N.D. was in her cousin's bed, and her cousin was sleeping with S. N.D. woke up and defendant was pretending to be asleep on the floor. N.D. stated she did not really know what woke her up, but she thought she may have had to go to the bathroom. Ordinarily, defendant would sleep in his own room. Asked if she had felt defendant touch her, N.D. responded, "Yeah a little." She stated she felt defendant touch her on the chest under her T-shirt. N.D. got up and went to the bathroom, and, when she returned, defendant had moved to the living room. Nothing else happened on that occasion.

N.D. told the interviewer that the first incident she could remember occurred in a hallway when she was playing with her cousin. N.D.'s cousin went to get something to drink and defendant "tried to start touching" her. N.D. did not let defendant touch her, and "kept on trying to get away." N.D. stated that defendant "tried to come near me and I tried running away but sometimes he catches me." Defendant caught N.D. by her T-shirt and started trying to touch her over her clothes. Nothing else happened on that occasion.

On another occasion, N.D. was in the kitchen of her aunt's house getting something out of the refrigerator when defendant, from behind her, tried to touch her between her legs. N.D. stated that defendant "tried touching me but his daughter walked in. And I also called her." N.D. stated that defendant did not manage...