P. v. Hernandez

Filed 6/16/06 P. v. Hernandez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H028372

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC335802)

ANTHONY PEREZ HERNANDEZ,

Defendant and Appellant.

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A jury convicted defendant Anthony Perez Hernandez of six counts of raping his daughter by force and found defendant personally inflicted great bodily injury in regard to the fourth count. (Pen. Code, § 261, subd. (a)(2).) The trial court found true a prior conviction within the meaning of Penal Code section 1170.12 and sentenced defendant to ninety years to life in prison. The prison term was imposed consecutively to a six year term defendant was serving in a separate case, for an aggregate term of ninety-six years to life.

Defendant claims on appeal that the trial court erred: (1) in denying repeated Marsden[1] motions; (2) in admitting evidence of defendant's prior conduct of domestic and sexual violence; (3) in excluding evidence of statements the victim made in letters sent to defendant; and (4) in denying defendant's motion for appointment of substitute counsel to move for a new trial. Defendant also contends the evidence is insufficient to establish that he personally inflicted great bodily injury on the victim, and that the court gave erroneous instructions on the great bodily injury enhancement thereby denying him due process of law. We affirm the judgment.

I. Factual Background

T.A.[2] was born on March 16, 1982 and was 22 years old at the time she testified at trial. T.A. first met defendant, and learned he was her biological father, when she was 12 years old. At that time, T.A. lived in a house in Newark with her mother, stepfather, and two half-sisters. A year later, T.A.'s mother, Wanda,[3] resumed a relationship with defendant. T.A.'s stepfather eventually moved out of the Newark house and defendant moved in.

Defendant's relationship with Wanda was violent. The couple argued frequently, drank heavily, and used drugs. Wanda resented the fact that defendant took T.A. places in Wanda's absence, and the couple argued frequently about T.A. T.A. witnessed several incidents in which defendant beat and threatened Wanda, and T.A. often tried to intervene and stop the violence. T.A. also saw defendant punch and pull the hair of another woman he dated. T.A. was afraid of defendant and did as she was told.

A. Count 1

On New Year's Eve 1996, when T.A. was 14 years old, she accompanied defendant to a party hosted by Antonio and Josephine, defendant's father and stepmother. Wanda did not want T.A. to go to the party and when T.A. returned, she threw T.A.'s belongings into the garage and told her to get out of the house. T.A. and defendant went to a friend's apartment. The friend was not at home, but T.A. fell asleep on the couch while defendant slept on the floor. In the morning, T.A. awoke to find defendant on top of her. He put a blanket over her head, removed her clothes, and had intercourse with her. T.A. did not consent, but she did not resist because she was afraid of defendant. Afterward, defendant â€