P. v. Hernandez

Filed 7/7/06 P. v. Hernandez CA 2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Philip H. Hickok, Judge. Affirmed with directions.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Arthur Hernandez of two counts of kidnapping for purposes of child molesting (Pen. Code, § 207, subd. (b))[1] (counts 1 and 4) and four counts of lewd acts on a child under age 14 (§ 288, subd. (a)) (counts 2, 3, 5, and 6). With respect to counts 2, 3, 5, and 6, the jury found true the allegation that the offenses involved more than one victim within the meaning of section 1203.066, subdivision (a)(7) and that the offenses involved kidnap and multiple victims within the meaning of section 667.61, subdivisions (a), (e)(1), and (e)(5). The jury found true the allegation in count 6 that appellant had substantial sexual conduct with the victim within the meaning of section 1203.066, subdivision (a)(8).

In the second portion of the bifurcated proceeding, the court found true the allegations that appellant had previously been convicted of a strike offense within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d) and that he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1).

The court sentenced appellant to 105 years to life in prison. The sentence consisted of consecutive terms of 25 years to life, doubled to 50 years because of the strike, in counts 2 and 5. The court also imposed a consecutive term of five years for the prior serious felony conviction. The court imposed the midterm of six years, doubled to 12 years, in count 3 and one-third the midterm of two years, doubled to four years, in count 6, both terms to be served concurrently. Pursuant to section 654, the court stayed imposition of sentence for the kidnappings in counts 1 and 4. The court ordered appellant to pay restitution and parole restitution fines, and, according to the minute order of the sentencing hearing, appellant was to submit to AIDS testing pursuant to section 1202.1. The court also required appellant to provide specimens, samples, and prints pursuant to section 296.

Appellant appeals on the grounds that: (1) the trial court committed reversible error when it failed to instruct the jury that unanimous agreement on the acts that constituted each violation of section 288 was necessary; and (2) the trial court did not order appellant to submit to an AIDS test, and the minute order and abstract of judgment are in error.

In addition to addressing appellant's arguments, we have noted several errors in the abstract of judgment and the minute order that require correction.

FACTS

We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Appellant presented no evidence in his defense.

Elvira Ortiz Hernandez (Ortiz) married appellant in November 2000, and by January 2003, they were separated. Because appellant was homeless in April 2003, Ortiz allowed appellant to wash at her home and to sleep on the porch when he had nowhere else to sleep. Ortiz lived with her eight-year-old daughter, Z., who was not appellant's child.

On April 22, 2003, Ortiz's father was unexpectedly hospitalized, and Ortiz's mother was unable to take Z. to school or pick her up as she customarily did. Appellant was inside Ortiz's apartment when Ortiz's mother telephoned, and Ortiz shared with him the news about her father. Appellant offered to pick up Z. from school and take her to her grandmother at the hospital. Ortiz usually did not allow appellant to be around her and her daughter, but he assured her he was drug-free and wanted to help her family.

When Ortiz arrived at the hospital after work, she learned that her daughter had never arrived. Ortiz drove home and found no one there. Appellant did not telephone all evening, and Ortiz called the police. Ortiz drove around searching for Z., who finally returned at midnight. Appellant stood in front of the house and Z. went inside. Ortiz and appellant fought over his absence with Z., and appellant kept saying he did not do anything.

Ortiz was called inside by her mother, and Ortiz began to talk with Z. about her 12-hour absence. Ortiz noticed appellant standing in the doorway and trying to get Z.'s attention. She saw him â€