P. v. Hernandez

Filed 6/14/06 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

A jury convicted defendant Rodrigo Vasquez Hernandez of five sexual offenses against Korina Doe, a minor. On appeal he contends that (1) the trial court erred by admitting evidence of uncharged sexual misconduct; (2) the prosecutor committed misconduct in jury argument by impliedly commenting on defendant's failure to testify; (3) the prosecutor committed further misconduct by misstating the law governing evaluation of the evidence of uncharged misconduct; (4) the court erred by viewing certain consecutive sentences as mandatory; (5) the imposition of consecutive sentences violated federal law insofar as it rested on findings not made by a jury; and (6) part of the sentence should have been stayed because it arose from the same criminal conduct as another part of the sentence. We find error in admission of some but not all of the evidence of uncharged misconduct and in the prosecutor's remarks concerning that evidence, but conclude that the errors were harmless. We find merit in the final argument and direct a modification of the sentence. We will affirm the judgment as so modified.

Factual and Procedural Background

At the time of trial defendant was 56 years old and Korina, the alleged victim, was 14 years old. Defendant did not testify in his defense. Korina testified that between the ages of five and seven she sometimes visited her paternal grandmother, Teri, on weekends and on weekdays after school. Teri was then dating defendant, who would sometimes pick up Korina when school got out between 2:00 and 3:00 p.m. After picking her up he would typically take her to Teri's house. However he sometimes took her to his house, and each time he did, unless someone else was there, something would happen. Korina's description of these occurrences follows.

On one occasion in second grade, defendant took Korina to his house after attending a school field trip as a chaperone. He led her by the hand into his bedroom, which she was able to describe at trial. He sat her on the edge of the bed and touched her chest over her shirt, â€