P. v. Hernandez

Filed 3/19/07 P. v. Hernandez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Agustin Hernandez Hernandez guilty of 15 counts of rape upon Leticia O. (Leticia) and Elizabeth O. (Elizabeth), children who were under 14 years old and 10 or more years younger than defendant. (Pen. Code, 269, subd. (a)(1).) The court imposed a total indeterminate term of 60 years to life.

On appeal, defendant argues that reversal is required because of the trial courts failure to instruct the jury that evidence of an admission should be viewed with caution. We disagree and affirm.

FACTUAL BACKGROUND

Elizabeth and Leticia (the girls) are twin girls who were born in April 1985. Defendant was the boyfriend of the girls mother (mother), and he started living with mother, the girls, and their siblings (collectively, the family), when the girls were five years old. The girls were expected to obey defendant as if he was their father, and he punished them if they were disobedient. Leticia was eight or nine years old when defendant first had intercourse with her. They were living in Madera. He took her in the bathroom, put her on top of the counter, took her clothes off, and then had sex with her. She kicked and pushed him, but he held her down and hit her. Defendant threatened to kill her family if she told anyone what happened between them. Mother was at work when this occurred. Leticia recalled another incident when defendant brought a blanket into the living room when she was watching television with her brother. Defendant sat next to her, put the blanket over their laps, and asked her to masturbate him. Then he exposed his penis, took her hand, put it on top of his penis, and started moving up and down. She did not like touching him, so she started hitting him. Defendant hit her back and then punished her for not listening to him. Defendant would force Leticia to have sexual intercourse with him once or twice a week for approximately one year, in 1995.

In 1996 the family moved to a house on Delphinium Street in Moreno Valley. Leticia recalled when defendant first started having sex with her once they moved there. He came into her room at night and took her into his room. She started arguing with him, so he hit her. He took off his clothes and told her to take off her pants. When she refused, he started taking them off. She began kicking him. He eventually got on top of her and forced her to have sex. Defendant had sexual intercourse with her every other day when mother was at work, in 1996-1997.

The family moved to another house in Moreno Valley on Cottonwood Avenue, and defendant continued to have sexual intercourse with Leticia two or three times a week for the next two years. Defendant also began forcing Leticia to perform oral sex on him. He would wake her up at 6:00 a.m. before he went to work, expose his penis, put his hand behind her head, and push her face to his penis. Leticia further testified that defendant forced her to have intercourse with him in the living room and in the bathroom.

Elizabeth also testified at trial. She testified that when they lived in Madera, defendant used to play horse with her and Leticia when mother was out of the house. Defendant would place the girls on his lap, facing them with their private parts on top of his, and make humping motions. Defendant started having sexual intercourse with Elizabeth once they moved to Moreno Valley. She recalled one incident when defendant forced her to have sex with him in the car, when it was parked in the garage. Furthermore, defendant first forced Elizabeth to perform oral sex on him when she was 12 years old. Defendant had Elizabeth perform oral sex on him two to four times a week. He would have her do it in the bedroom and in the garage in their car. Then, after they moved to their second house in Moreno Valley (on Cottonwood Avenue), defendant continued to force her to perform oral sex and have intercourse with him. Elizabeth testified that defendant would force her to have sex every other day, sometimes three or four times a day. When Elizabeth was 13 years old, she became pregnant with defendants baby. She had the baby in the bathroom at her house. Defendant took the baby away, and she never saw it again.

Defendant eventually moved out of the house on Cottonwood Avenue after Leticia wrote a letter to mother saying that mother either had to leave defendant, or she was going to move to her grandparents house.

In 2003, when Elizabeth turned 18, she told the police about defendant. At the direction of the police, Elizabeth spoke to defendant on the telephone, and she met with him in person.

Detective Edward Vargas testified at trial regarding Elizabeths telephone calls and meeting with defendant. The telephone calls were recorded, and he translated them from Spanish to English. He was also present at the meeting between Elizabeth and defendant. He prepared police reports regarding each of the conversations. At the outset of Detective Vargass testimony, the court explained to the jurors that since the tape recordings were in Spanish, they were not going to play the recordings in court. The court stated that playing the tape recordings would not benefit the jury, since only perhaps three of the jurors spoke Spanish. Instead, the court permitted Detective Vargas to have his police report in front of him while testifying, to ensure that his testimony regarding the conversations was precise.

Detective Vargas testified that during the first telephone call, Elizabeth asked defendant about when he used to take her and Leticia into a room and play horse. Defendants response was, Ask God is all you can do to erase those things. When she asked him why he did those things, he said, The devil was much stronger and won me over, and The devil does things like that. Defendant said he was paying for what had gone on in his life because now he was alone. When Elizabeth told him that the only baby she was going to ever have was the one she had with him, he responded, You had a baby? She said, Dont play dumb. Elizabeth asked if he remembered having sex with her in the bedroom and then him locking her in the closet. She then asked him, How is it you told me you care for me but you hurt me so much? He replied, I didnt know the consequences. Elizabeth also asked defendant why he liked to have sex with her when she was little. He replied, I dont know what I was thinking about.

Detective Vargas then testified regarding the meeting between Elizabeth and defendant in a park. Detective Vargas, another officer, and Elizabeth drove to the park in an unmarked van. Elizabeth wore a wire under her shirt, so that the officers could hear her conversation with defendant. Elizabeth asked defendant specifically about him having sex with her and molesting her. Defendant never denied anything. He told her to pray to God and he would forgive, and to forgive him (defendant). Elizabeth again talked about the baby. Defendant initially did not respond, and then said, What do you want me to say? That I liked it? Defendant also asked her Why are you always putting this in my face? Shortly after the conversation ended, Detective Vargas arrested defendant.

ANALYSIS

The Trial Court Had No Sua Sponte Duty to Give a Cautionary Instruction

Defendant contends that the judgment should be reversed because the court failed to instruct the jury to view evidence of an admission with caution (CALJIC No. 2.71)^[1]. He asserts that the principal evidence against him was the victims testimonies and certain admissions elicited during the telephone calls and meeting between him and Elizabeth. Thus, he argues that the omission of the instruction prejudiced him because the victims testimonies were inconsistent in certain respects and, by themselves, may not have convinced the jury of his guilt beyond a reasonable doubt. We disagree.

When evidence is admitted establishing that the defendant made oral admissions,

the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution. [Citation.] (Slaughter, supra, 27 Cal.4th at p. 1200.) [T]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] [Citation.] (Ibid.) Accordingly, the California Supreme Court has held that this cautionary instruction should not be given if the oral admission was tape-recorded and the tape recording was played for the jury. [Citation.] (Id.)

Here, defendants admissions were tape-recorded. However, because the admissions were in Spanish, the court determined that playing the tape for the jury would not have assisted the jury, since only a few of the jurors spoke Spanish. Instead, the court permitted Detective Vargas to read his reports, which contained a translation of each conversation, so that his testimony would not be simply based on his memory. Detective Vargas, who was a certified Spanish translator, had listened to the conversations and translated them. There was no evidence to contradict Detective Vargass testimony or translation of Elizabeths conversations with defendant. Since there was no question about whether the statements were actually made by defendant, the cautionary instruction was unnecessary.

Assuming arguendo that the trial court erred in failing to instruct sua sponte that evidence of the oral admissions should be viewed with caution, any error was harmless. The omission of the instruction does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. [Citations.] (People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by statute on other grounds, as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208.) First, we find no reasonable probability that the jury would have found that the statements either were not made or were not reported accurately. The statements were related by a law enforcement officer, and there was no conflicting evidence or issue concerning the statements.

Second, both Elizabeth and Leticia testified in great detail concerning defendants criminal acts against them, and the jury found them credible. (See People v. McKissack (1968) 259 Cal.App.2d 283, 287.) Defendant argues that there were discrepancies in their testimonies regarding such matters as Elizabeths failure to tell the police about the incident with defendant in the garage, whether defendant ever threatened the girls together, and why twin girls living in the same house with the same abuser would have such different sexual experiences. None of these alleged discrepancies in the girls testimonies discredited the rest of their testimonies regarding defendants actual criminal acts. In any event, the alleged conflicts in the testimonies were squarely placed before the jury, and the jury properly resolved the conflicts against defendant. (Ibid.)

We conclude that it is not reasonably probable that had the jury been given the cautionary instruction, a result more favorable to defendant would have been reached.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Hollenhorst

Acting P.J.

We concur:

/s/ Richli

J.

/s/ Miller

J.

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^[1] CALJIC No. 2.71 provides: An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [] . . . [] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.] (See People v. Slaughter (2002) 27 Cal.4th 1187, 1199 (Slaughter).)