P. v. Mendez

Filed 6/1/07 P. v. Mendez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

We appointed counsel to represent Oscar Abel Mendez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. Mendez was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him. We have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

FACTS

The information charged Mendez with nine separate lewd acts on Salvador, a child less than 14 years old, in violation of Penal Code section 288, subdivision (a). Mendez was also charged with exhibiting pornography to Salvador on two separate occasions in violation of Penal Code section 288.2, subdivision (a). It was further alleged that Mendez committed six separate lewd acts on Luis, a child less than 14 years in violation of Penal Code section 288, subdivision (a), and on two separate occasions exhibited pornography to Luis in violation of Penal Code section 288.2, subdivision (a). Lastly, Mendez was charged with possession of child pornography, in violation of Penal Code section 288.2, subdivision (a). It was additionally alleged that as to the counts charging violations of Penal Code section 288, subdivision (a), Mendez had committed an offense against more than one victim within the meaning of Penal Code section 667.61, subdivisions (b) and (e)(5).

Mendez was convicted of 14 counts alleging violation of Penal Code section 288, subdivision (a), and two counts alleging violation of Penal Code section 288.2, subdivision (a). The jury found all of the special allegations to be true.

The court sentenced Mendez to a total term of 30 years to life in prison.

DISCUSSION

In her brief, appellate counsel states, A potential issue is whether appellants due process rights were violated by the admission into evidence at trial of the previously-recorded statements of one of the victims, who testified at trial, but who could not at the time of trial remember all of the events which he described in the interview. Counsel cited Crawford v. Washington (2004) 541 U.S. 36; United States v. Owens (1988) 484 U.S. 554; California v. Green (1970) 399 U.S. 149; People v. Butler (2005) 127 Cal.App.4th 49; People v. Sisavath (2004) 118 Cal. App.4th 1396; and People v.Simmons (1981) 123 Cal.App.3d 677, but offered no reasoned analysis. We find no due process violation.

Although it precluded the use of many types of testimonial hearsay previously admitted in criminal trials under state rules of evidence, the Crawford Court expressly reaffirmed its decision in California v. Green (1970) 399 U.S. 149. In footnote nine of its opinion, the Court reiterate[d] that, when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements . . . .  The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it . . . . (Crawford, supra, 541 U.S. at p. 59, fn. 9.)

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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