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People v. Fernandez

California Court of Appeals, Fourth District, Third Division
Feb 3, 2011
No. G042985 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, No. 07NF4051, Gary S. Paer, Judge.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

MOORE, ACTING P. J.

Defendant was not prejudiced when the court permitted the prosecutor to impeach him with privileged papers; any error was harmless. The record before us does not support a finding that acts involving the victim’s breasts, as charged in count 13, amounted to substantial sexual conduct within the meaning of the statute. Defendant’s 105-year sentence is not cruel and unusual punishment.

The finding of substantial sexual conduct in count 13 is reversed. In all other respects, the judgment is affirmed.

I

FACTS

Regarding victim Justine, a jury found defendant Richard Fernandez guilty of lewd act upon child under 14 in violation of Penal Code section 288, subdivision (a), and found it to be true he had substantial sexual conduct with the victim Justine within the meaning of Penal Code section 1203.066, subdivision (a)(8) during the commission of the offense as charged in counts one, two, three, four, five, six and seven. (Unless otherwise indicated, all statutory references are to the Penal Code.) Regarding victim Justine, the jury also found it to be true that defendant is guilty of two or more violations of section 288, subdivision (a) and that he committed these offenses on and against more than one victim within the meaning of sections 1203.066, subdivision (a)(7) and 667.61, subdivisions “(b)/(e)” as alleged in counts one, two, three, four, five, six and seven. Regarding victim Justine, the jury further found that the section 803 allegation regarding the statute of limitations was true as to counts one, two, three, four, five, six and seven.

Regarding Preston, the jury found defendant not guilty of violating section 288, subdivision (a). Regarding Preston, the jury also found defendant not guilty of violating section 242.

Regarding victim Desiree, a jury found defendant guilty of lewd act upon child under 14 in violation of section 288, subdivision (a), and found it to be true he had substantial sexual conduct with the victim within the meaning of section 1203.066, subdivision (a)(8) during the commission of the offense as charged in counts 9, 10, 11, 12 and 13. Regarding victim Desiree, the jury also found it to be true that defendant is guilty of two or more violations of section 288, subdivision (a) and that he committed these offenses on and against more than one victim within the meaning of sections 1203.066, subdivision (a)(7) and 667.61, subdivisions “(b)/(e)” as alleged in counts 9, 10, 11, 12 and 13.

The court sentenced defendant to a total term of 105 years to life in prison. The court ordered defendant to register as a sex offender for life.

Justine and Preston

Justine was born in 1984. Her son is named Preston. Her mother married defendant in 1987.

Justine remembers “things happening” when she was still living at her grandmother’s house, and they lived there until Justine “was in about first grade.” When Justine was asked how old she was when things started, she said she “would say as early as three years old.” Defendant put her to bed a couple of times each week. She described her earliest memory about incidents with defendant: “I remember he would put me to bed regularly. And that his way of putting me to bed would be touching me all over my body.” Defendant would tell her to relax, and his hand would start touching her near her face and neck, and then defendant would touch her “over and under [her] shirt, over and under [her] underwear –.” At some point, “it changed to more often in [her] underwear.” She said she remembers defendant “putting his fingers in my vagina” and “making [her] touch his penis” with her hand, “making [her] stroke his penis.”

It stopped “in about fifth grade.” When Justine was asked whether or not she ever told anyone, she explained why she did not: “I was scared. And I denied that it happened for so long. I always convinced myself that it didn’t.” She said she finally came forward because she “had a son. And because [she] acted like this didn’t happen, [she] didn’t completely trust him around [her son]. [¶] But [she] trusted her mom. And [she] acted like this never happened, so it wasn’t weird to leave [her son] with [her] mom. And [defendant] ended up touching [her] son.”

Justine moved in with her mother and defendant when Preston was one year old. They watched Preston when she went to work. On one occasion, Justine left Preston with her mother and defendant while she went out with friends. She returned at about 2:00 a.m. the next day. At approximately 3:00 that afternoon, Justine saw “Preston started touching himself, which was something he didn’t normally do.” She clarified Preston “was using his hand to touch his penis.” When Justine questioned Preston about his action, Preston started crying. He said that defendant had touched him there.

Justine’s mother, and defendant’s then wife T., testified she witnessed Justine accuse defendant of sexually molesting her when she was a child. T. walked into the living room and Justine said: “Tell her about when I was little. Tell her how you touched me when I was little.” At that point, defendant put his head down and told T.: “[T.], I’m sorry.”

Desiree

Desiree was born in 1994. From 2004 to 2006, defendant was her foster father. There were four foster children at the time, who Desiree described: “Chris was around - I think he was 16 at the time. Or 15. And Ramon was 13. Myself was 11, I think. Around 11, 10. And my little brother, Marcus, was 7, 8.”

Desiree testified how her problems with defendant began: “He would come into my room, and he would ask me if I wanted to pray with - if he wanted to pray with me. And he would just come into my room and tell his wife that he was tucking me in. And - that’s how it started.” She continued: “He began to get super close with me. Like at first, I thought it was more like a father-daughter thing. And he began asking me, ‘What do you want to pray about?’ or we’d talk about that. And he seemed to put God into it a lot, which was a very uplifting thing for me, because I was very into God at the time because my religious - I’m Christian. [¶] I don’t know. He just seemed so like into whatever we were doing. We were praying. And then he began to start touching me. Like - like a few days after we started praying.”

About three times a week, defendant “would ask [Desiree] to relax [her] body, and then he would touch [her] like everywhere from [her] feet up. And then he would just tell [her] to relax [her] muscles and that [she] would fall asleep.” When the prosecutor asked her what areas of her body defendant would touch, Desiree responded it was the “area where I pee” over her clothing.

One time, defendant returned to Desiree’s room after they had prayed. She said she “was not even completely asleep yet. And [she] saw the shadow, and [she] knew something was in front of [her], but [she] didn’t want to open [her] eyes. So then [she] feared that it was him. So then [she] squinted [her] eyes and it was him, but [she] didn’t look up or anything. [She] just seen him there with his boxers. And [she] just laid there. [¶] And about two minutes had passed, just standing there looking over [her]. He kind of like pushed his - body forward and his - penis touched [her] arm. And it was like wet. And he was kind of like moving it forward and back, forward and back. And then he left the room. And [she] heard the toilet flush in their room, and their room was like - their room was really close to [her] room, so [she] could hear everything that was going on. [¶] Every time that he would touch [her] or come or leave, every night he would come in and leave, he would go to the bathroom and [she’d] hear the toilet flush.”

Another time, Desiree was watching television and defendant sat down next to her on the couch. Defendant lifted her feet and placed them on top of him, and her feet were touching his penis, skin-to-skin. She said: “It was wet and hard.” Desiree heard defendant’s wife come down the hall, and defendant “just like jolted up like super fast. And then he got up and then - he kind of like walked super fast to the kitchen. And like played it off like nothing had happened. [¶] That’s when [she] knew something was really wrong, like, why would he do that.”

Desiree said one time she “was laying, ” she felt her hand on his penis three times and she “felt like the wetness of it. And he kind of like - hit my hand.” She ran to the bathroom to wash it off. Another time, defendant started to give her a foot massage, but ended up putting his penis on her foot. Yet another time, Desiree “kind of like was freaked out” when she was awakened to defendant standing over her bed.

On occasion, defendant would remark that Desiree’s “butt’s getting bigger” and her “boobs are getting bigger.” On another occasion, defendant showed Desiree a photograph of “an old foster child” dancing. He told her the other foster child was 13 years old in the photo, and that she was a good dancer. He said to Desiree, “show me your moves.”

Desiree said defendant touched her foot to his penis four or five times. He touched her breast four or five times. He touched her vagina once. She actually saw his penis outside of his boxers once.

After two to three weeks of touching, Desiree decided she had to say something to defendant. She said: “He had came into my room, and I was basically sick of it. And I didn’t know - I was scared, but I knew I had to say something, because I wanted to protect myself because I didn’t know what was going to happen next. So I laid there. [¶] And he came in, and I was already ready for him. I just - he said, ‘Okay, let’s pray.’ [¶] I said okay. He prayed. [¶] After his prayer, which meant nothing to me, I said - I didn’t even look at him. I turned over and I said, ‘Richard, why do you get so horny for?’ [¶] He was like in shock, I guess, because he didn’t say anything for a while. [¶] And then I looked at him and I just waited for his answer. [¶] And he said, ‘I know. I’m sorry.’ And he walked away. And I didn’t - he didn’t come back to tuck me in or pray anything.” He never touched her again.

Defendant’s Police Interviews

The patrol officer who responded to the initial call to the police interviewed defendant at the Anaheim Police Department on October 8, 2007. Defendant “started out by apologizing” about Justine. He told the officer “he was very religious, and that he was going to have to pay for his sins.”

Defendant admitted to the police “he had been molesting Justine” for years. He said he touched her for six or seven years by rubbing his hand on her vagina, and said “he had only ejaculated on her one time.” He said he inserted his finger into her vagina. A police officer specifically asked him whether he had inserted his penis into her vagina or anus during that period, and defendant said “he did insert his penis into her vagina during this time, but that he was careful not to insert it all the way to hurt her.”

Defendant told the police that “Justine was a very sexual little girl.” He said when Justine was about six years old, she would crawl into bed with him and touch his penis. He said one day as he was laying on the couch, Justine ran up to him and kissed his penis; he thinks she was about eight years old at the time.

When the suggestion of a letter of apology was made, defendant said “he thought that would be good.” He then wrote out an apology to Justine. The letter states: “I told you that I was sorry. And it meant nothing. I know it meant nothing.” Later, when defendant testified at trial, he said that in the letter he “was talking about our past together.” He explained he was referring to “the arguments, the yelling at each other. Her telling me to shut up, things like that.”

At the police station, the officer asked defendant about Preston. Defendant “denied touching him in any way.” The officer did not question defendant about Desiree.

Defendant’s Briefcase in his Truck

After the initial felony complaint was filed, defendant was out of custody on bail. At a court hearing on January 16, 2008, after the felony complaint was amended, defendant was taken into custody when the court raised his bail to $1,000,000.

T., who was by then defendant’s former wife, described what happened in court that day: “Richard was arrested - handcuffed by the bailiff. And his attorney followed the D.A. out of the courtroom, so I followed both of them out. [¶] And I got to Mr. Regolo, and said ‘I know Richard drove the truck to court today. What should I do about the truck?’ And he said, ‘It’s none of your business.’ And I said okay. And I walked back into the courtroom and sat down with my sister. [¶] And Mr. - Mr. Regolo came back into the courtroom after that and said - didn’t say anything. [¶] Walked back to Mr. Fernandez. And I saw him reach into his pockets - I couldn’t hear what they were saying, but I could see that they were in front of me, and I was behind them - like several seats behind them. And he reached into Richard’s pocket and took wallet and keys, and I’m not sure what else. Maybe a cell phone. I’m not sure. [¶] Talked to him for a second, then came back and handed me the keys without saying a word.”

Attilio Regolo, defendant’s attorney.

T. drove the truck to her house. No one in law enforcement asked T. to search defendant’s vehicle. She and her sister went through the truck and found some paper work which she described as “a diary - like a journal. Writings. Richard’s writings.” T. then telephoned the detective on the case, told him what she found and made arrangements to drop off the papers to the detective. The next day, she handed the documents to the detective.

Approximately two to three weeks later, Michael Cernyar, defendant’s next attorney, telephoned T. and said “he needed some paperwork out of the truck. And did I - did I know where the paperwork was. And I said - no, I’m sorry.” Cernyar told her he could send someone to her house to pick up the paper work, and T. told him she had already turned it over to the police.

Defendant explained why he prepared the documents: “The attorney that I had hired wanted to know about the case. And - because he didn’t have any knowledge of it. So I - he asked me to prepare that for him.” He left them in his briefcase in his truck when he went into the courthouse on January 16. Defendant and his lawyer had planned on discussing his case after the court hearing that day, and defendant intended to give the documents to his lawyer during their discussion.

Defendant was surprised when he was taken into custody. The keys to his truck were in his suit coat pocket, and he said he asked his lawyer to give the keys to his truck to his mother.

Defendant moved to exclude the paperwork. The court heard evidence and argument from both parties. After the people rested, defense counsel reminded the court it had not yet ruled on the motion to exclude the documents found in defendant’s briefcase in his truck.

Counsel and the court discussed whether or not the detective to whom T. gave the documents would be called as a witness, and resolved the issue with the following stipulation: “That Detective Witham received these documents from Terry Fernandez. That he booked them into evidence. And that those documents were provided in discovery a copy to the people and the defense.” At that point, the prosecutor informed the court the prosecution intended to use the documents only to cross-examine defendant. Defense counsel reminded the court the motion was not being made under section 1538.5, but under Evidence Code section 402, and that the basis was that the evidence “violates the attorney-client privilege.” And “Sixth Amendment argument.”

The court denied the motion to exclude the documents, which were marked as court’s exhibit No. 1. Court’s exhibit No. 1 was marked for identification only and was not admitted into evidence.

During his testimony at trial, defendant was not questioned about the notes during direct examination by his own lawyer. The prosecutor asked several questions about the notes during cross-examination. Many of the questions were about Preston, and defendant was found not guilty regarding those charges. Other questions concerning the privileged documents were cumulative to the admissions defendant already made to the police and other evidence.

II

DISCUSSION

Court’s Exhibit No. 1

On appeal, defendant argues: “Allowing the district attorney to impeach appellant with statements contained in a written communication intended for appellant’s legal counsel, over defense objection and over appellant’s express invocation of the attorney-client privilege, constituted a violation of appellant’s Sixth Amendment right to counsel and an infringement of the attorney-client privilege which was so prejudicial that reversal is required.”

“As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” (Evid. Code § 952.)

The fundamental purpose of the attorney-client privilege “‘is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.]’” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.) Even an undelivered communication, intended to be given to a client’s lawyer, is protected by the attorney-client privilege. (People v. Gardner (1980) 106 Cal.App.3d 882, 887.)

“We review a trial court’s conclusion that a document is admissible and not subject to the attorney-client privilege to determine whether it is supported by substantial evidence. [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 817-818.) Even if the trial court erred here, reversal is not warranted.

Notwithstanding the court’s permitting the prosecutor to cross-examine defendant regarding his handwritten documents, other evidence overwhelmingly supports the jury’s verdict. Both Justine and Desiree testified in graphic detail about defendant’s actions. One of the first things defendant did at the police station was apologize for what he did to Justine. Defendant later admitted he had been molesting Justine for years and described the acts he committed upon the child. He wrote Justine a letter of apology and apologized to his wife for what he did to Justine. He said he was going to have to pay for his sins. Even under the stringent harmless beyond a reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18, 24, we conclude defendant was not prejudiced by the admission of that evidence. Since defendant was not prejudiced by the use of privileged documents in his trial, there was no violation of the Sixth Amendment. (United States v. Irwin (9th Cir. 1980) 612 F.2d 1182, 1186.)

Section 1203.066

Defendant next contends the record does not contain sufficient evidence to support the true findings on the allegations under section 1203.066, which requires a finding of “substantial sexual conduct.” He argues those findings must be stricken in counts one and 13.

‘“Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (§ 1203.066, subd. (b).)

Count one of the information alleges acts between September 3, 1988 and September 2, 1989. Justine testified defendant put her to bed a couple of times a week and described the acts that occurred while she was still living at her grandmother’s house and when she was in the first grade. She said defendant put his finger into her vagina and made her stroke his penis. T. testified she began living with defendant at Justine’s grandmother’s house in December 1987, and that she and Justine lived there from 1987 to 1989.

Count 13 of the information alleges: “On or about and between October 27, 2004 and June 12, 2006, in violation of Section 288(a) of the Penal Code (LEWD ACT UPON CHILD UNDER 14 – JANE DOE #2’S BREASTS), a FELONY, RICHARD FERNANDEZ did willfully, lewdly, and unlawfully commit a lewd and lascivious act upon and with the body of JANE DOE #2, a child under the age of fourteen (14) years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the defendant and the child.”

Counts 9, 10, 11 and 12 also refer to Desiree. Count 9 has the language “(PENIS ON JANE DOE #2’S FOOT – FIRST TIME).” Count 10 states “(PENIS ON JANE DOE #2’S FOOT – ANOTHER TIME).” Count 11 states “(PENIS ON JANE DOE #2’S HAND).” Count 12 states “(JANE DOE #2’S VAGINA).”

When Desiree was asked whether defendant touched any of her private areas, she described where he touched her as: “The area where I pee.” She was asked if he touched any other private parts, and responded: “My boobs.” She said he did that three times a week. She also said that every time he visited her at night, she heard the toilet flush immediately afterward.

“‘Notice of the specific charge is a constitutional right of the accused.’” (People v. Pitts (1990) 223 Cal.App.3d 606, 904.) “‘The principal purpose of the information is to notify the accused of the charges he or she is to meet at trial.’ [Citation.]” (People v. Maldanado (2009) 172 Cal.App.4th 89, 94.) An information does not violate due process so long as it “‘informs defendant of the nature of the conduct with which he is accused.’” (People v. Pitts, supra, 223 Cal.App.3d atp. 904.)

The record before us supports the jury’s findings in count one. There is sufficient evidence that defendant committed substantial sexual conduct upon Justine during the time periods alleged.

Count 13 is a different story. The prosecution limited its charge in that count to defendant’s lewd conduct concerning Desiree’s breasts. The record before us does not support a finding that acts involving the victim’s breasts amounted to substantial sexual conduct within the meaning of the statute. Accordingly, we reverse the true finding on the allegation under section 1203.066 on count 13.

Cruel and Unusual Punishment

Lastly, defendant claims his punishment of 105 years to life in prison violates the cruel and unusual punishment clauses of both the federal and state Constitutions. He says his punishment: “is tantamount to life imprisonment without any possibility of parole, the same sentence which would be imposed upon a serial killer. To the extent the criminal activity in the present case is far, far less serious than first degree murder with special circumstances, the sentence thus constitutes cruel and unusual punishment.”

The Eighth Amendment to the United States Constitution declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The clause is “applicable to sentences for terms of years.” (Lockyer v. Andrade (2003) 538 U.S. 63, 72.)

Article I, section 17, of the California Constitution proscribes “[c]ruel or unusual punishment.” A prison sentence runs afoul of article I, section 17, if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)

In conducting an inquiry as to whether a punishment is cruel or unusual, “the courts are to consider not only the offense in the abstract -i.e., as defined by the Legislature-but also ‘the facts of the crime in question’ [citation]-i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts. [¶] Secondly, it is obvious that the courts must also view ‘the nature of the offender’ in the concrete rather than the abstract: although the Legislature can define the offense in general terms, each offender is necessarily an individual.... This branch of the inquiry therefore focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479.)

The totality of the circumstances here demonstrates defendant spent decades breaching trust that was placed in him by taking advantage of small children. Under the guise of saying good night prayers, he molested them. Apparently he was giving a self-assessment regarding his own sensitivity when he told a police officer he was careful not to insert his penis all the way into one of the children because he did not want to hurt her. We do not find his punishment disproportionate to his culpability.

III

DISPOSITION

The finding of substantial sexual conduct in count 13 is reversed, and the matter is remanded to the superior court for resentencing. In all other respects, the judgment is affirmed.

WE CONCUR: FYBEL, J., IKOLA, J.


Summaries of

People v. Fernandez

California Court of Appeals, Fourth District, Third Division
Feb 3, 2011
No. G042985 (Cal. Ct. App. Feb. 3, 2011)
Case details for

People v. Fernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD FERNANDEZ, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 3, 2011

Citations

No. G042985 (Cal. Ct. App. Feb. 3, 2011)