Opinion
D072591
09-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JORGE GONZALEZ HERNANDEZ, Defendant and Appellant.
Michael Bacall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF37179) APPEAL from a judgment of the Superior Court of Imperial County, Marco D. Nunez, Judge. Affirmed. Michael Bacall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jorge Gonzalez Hernandez of oral copulation with a child who was 10 years of age or younger. (Pen. Code, § 288.7, subd. (b).) The trial court sentenced Hernandez to an indeterminate term of 15 years to life imprisonment.
Hernandez appeals. He contends the court erred by finding that the victim was competent to testify (Evid. Code, §§ 700, 701) and by admitting evidence of the victim's prior statements (id., § 1360). We disagree and affirm.
Further statutory references are to the Evidence Code.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On March 12, 2016, the victim and his younger brother spent the day at their babysitter's house in Brawley, California. The victim, who was almost seven years old at the time, is autistic. The babysitter had been caring for the victim and his brother regularly for several years. That day, the babysitter, the babysitter's mother, the babysitter's sister, and the sister's boyfriend at the time (Hernandez) were at the home. They were all together except for an approximately 30-minute period when the babysitter and her mother left with the victim's brother to do some laundry.
The victim's father came to pick up the children in the afternoon. He saw the victim sitting next to Hernandez on the babysitter's couch. On the drive home, the victim told his father that "something gross happened" with "the guy with no teeth." The victim said "he put his finger in my mouth" and "he put his mouth on here," gesturing toward his crotch. The father was not sure he understood everything the victim was saying, so he drove home to talk with his wife.
When they arrived home, the victim's mother talked with him. The victim referenced "something gross" and said "it hurt." The victim's mother asked the victim to show her what happened. The victim responded, "a man," "down here" (gesturing to his crotch), "it was gross," and "it hurt." The victim also said, "Mom, his mouth, right here" (gesturing to his crotch). He mentioned "a bald old man." The victim also complained that his penis hurt. When his father looked, he saw a cut there.
The victim's mother called the babysitter. She asked whether there was another boy or a man at the babysitter's house. The babysitter said that Hernandez was there. The victim's mother and father drove back to the babysitter's house with the victim and his brother. When they arrived, they saw the babysitter's sister, the babysitter's mother, and Hernandez driving away. The victim's mother asked the babysitter to call them. They did not answer, so the victim's family went to a Walmart to find them. The victim's mother called police.
The victim's mother had seen Hernandez at the babysitter's house before, around 15 times over the course of a couple years. Once, she helped him fill out a job application because he had trouble understanding the questions.
At Walmart, the victim's father spoke to Hernandez. He asked Hernandez about the cut, and Hernandez said the victim must have done it to himself. Hernandez denied biting the victim; he said he had no teeth. Hernandez suggested to the victim's mother that the victim was lying. Police officers arrived and separately interviewed the victim's family and Hernandez. Hernandez was wearing a red polo shirt, glasses, a baseball cap, and shorts. He told police he never came in contact with the victim.
A physician specializing in child abuse examined the victim. She identified an adhesion injury to his penis, which can be caused by pulling on the foreskin. It is possible the injury was caused by sexual abuse, including oral copulation. It is also possible the injury was self-inflicted. There were no other physical signs of sexual abuse.
DNA testing was performed on the victim's penis, his scrotum, and his underwear. The test on the victim's penis revealed only his own DNA. The test on the victim's scrotum revealed a mixture of DNA, with the victim as a major contributor and Hernandez as a minor contributor. The test on the victim's underwear also revealed Hernandez as a minor contributor. The chance of a random Hispanic person being included in the DNA mixture was one in 33 million for the scrotum DNA test and one in trillions for the underwear DNA test.
A child forensic interview specialist conducted a videotaped interview of the victim. During the interview, the victim said he went to his babysitter's house and "got hurt." He said a guy took off his pants and pulled on his penis. The victim said the guy used his mouth. When he mentioned "mouth," the victim pointed to the genital area of a drawing of a boy. He said the guy had a red shirt.
At trial, Hernandez testified in his own defense. He denied pulling down the victim's pants or touching his penis. He said that, on the day in question, he was using small bags of chewing tobacco. He set one chewed bag on the arm of the couch, and the victim took it. Hernandez said he grabbed the victim's hand and forcibly removed the tobacco bag. He claimed the victim then wiped his hands on his clothes. Hernandez admitted not telling this story to police. He said he "saw it as a mischief done by the child." The babysitter's sister (Hernandez's former girlfriend) testified that she did not see anything unusual that day.
Hernandez told a police officer that he saw the victim with his hands down his pants throughout the day. The babysitter agreed. The defense called a DNA expert who testified that it was possible that Hernandez's DNA was transferred to the victim's scrotum and underwear through "secondary transfer," i.e., the victim's hands. He also said it was possible that DNA was transferred through oral copulation.
DISCUSSION
I
The Victim's Competency as a Witness
Hernandez contends the trial court erred by finding the victim competent to testify under sections 700 and 701. Prior to trial, the court held a section 402 hearing in chambers to determine the victim's competency. The victim was eight years old at the time. Under questioning by the court, the victim correctly stated and spelled his name, said his age, and identified his birth month. The victim identified colors, numbers, and letters on various pieces of paper and corrected the court when it said the incorrect color or number. He recognized the incorrect answer would be "wrong." The victim agreed to say only what was "right" in court, and he was able to say "I don't know" when he did not know the answer. He promised to only tell the truth. The court did not allow questioning by defense counsel and declined to ask a question he suggested.
The trial court found that the victim was capable of expressing himself. It noted that the victim had no trouble correcting the court's statements. The court also found that the victim understood his duty to tell the truth. It stated, "I repeatedly asked him whether he understood that it was important to tell the truth and to say what was right and not to make things up, and he kept promising me that he would. And in his tone, I actually noted a bit of frustration . . . when I kept trying to convince him that a 'D' was a 'T,' for example, and he was not backing down and he maintained firm in his answer, which was the correct answer." In conclusion, the court explained, "I'm convinced that in spite of his young age and in spite of the fact that he suffers from autism, he is in fact capable of telling the truth . . . and therefore, [the court] holds this witness as competent."
At trial, the prosecutor in her direct examination again tested the victim's ability to tell the truth from falsity. The victim then testified about "the man with the white hair" and "red shirt" and how he did something "very grossly." He said the man hurt him, and it hurt in his crotch area. The victim said the man put his mouth on the victim's crotch area. He described how the man pulled down the victim's underwear. However, at other points in his testimony, the victim answered, "I don't know," appeared reluctant to testify, did not speak in complete sentences, or answered in non sequiturs.
Although "every person, irrespective of age, is qualified to be a witness" (§ 700), a person may be disqualified if he or she is "[i]ncapable of expressing himself or herself concerning the matter so as to be understood" or "[i]ncapable of understanding the duty of a witness to tell the truth" (§ 701, subd. (a)(1)-(2)). "Capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court's determination will be upheld in the absence of a clear abuse of discretion." (People v. Anderson (2001) 25 Cal.4th 543, 573 (Anderson).)
Hernandez has not shown the trial court abused its discretion. In the section 402 hearing and at trial, the victim was capable of making himself understood. Although isolated answers were less intelligible, they do not themselves demonstrate a lack of competence as a matter of law. The victim was certainly capable of expressing himself, as shown by his other answers. Similarly, the victim was capable of understanding the duty to tell the truth. In the section 402 hearing and at trial, he demonstrated an understanding of truthful testimony versus false testimony, and he knew when to say he did not know something.
Hernandez points out that at trial the victim sometimes testified in response to leading questions, sometimes gave inconsistent answers, and sometimes showed gaps in his memory. But these circumstances are relevant to the victim's credibility, not his competency. "Inconsistencies in testimony and a failure to remember aspects of the subject of the testimony, however, do not disqualify a witness. [Citation.] They present questions of credibility for resolution by the trier of fact." (People v. Mincey (1992) 2 Cal.4th 408, 444; accord, People v. Dennis (1998) 17 Cal.4th 468, 526 ["The trier of fact can evaluate these matters, when appropriate and otherwise permissible, in resolving the question of credibility."].)
As one court explained, "the fact that a very young witness makes inconsistent or exaggerated statements does not indicate an inability to perceive, recollect, and communicate or an inability to understand the duty to tell the truth. [Citation.] The child's competency depends on these factors alone; questions about whether aspects of her testimony were believable are questions of credibility for the trier of fact. They are not relevant to the issue of her competency to testify." (Adamson v. Dept. of Social Services (1988) 207 Cal.App.3d 14, 20; accord, People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 960.)
In his briefing, Hernandez criticizes the victim's capacity to perceive and recollect. This argument confuses section 701 (regarding competency) with section 702 (regarding personal knowledge). (See People v. Lewis (2001) 26 Cal.4th 334, 356, fn. 4 (Lewis) [describing similar confusion].) Indeed, Hernandez explicitly references section 702 in making his competency argument. But these two concepts are distinct. "Under the Evidence Code, the capacity to perceive and recollect particular events is subsumed within the issue of personal knowledge, and is thus determined 'in a different manner' from the capacity to communicate or to understand the duty of truth." (Anderson, supra, 25 Cal.4th at p. 573.) " '[T]he court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he has such knowledge. [Citation.] Thus, the Evidence Code has made a person's capacity to perceive and to recollect a condition for the admission of his testimony concerning a particular matter instead of a condition of his competency to be a witness. And, under the Evidence Code, if there is evidence that the witness has those capacities, the determination whether he in fact perceived and does recollect is left to the trier of fact.' " (Id. at pp. 573-574; accord, People v. Cortez (2016) 63 Cal.4th 101, 124.)
Even considering Hernandez's claim under section 702, and assuming he has not forfeited the argument by failing to object, it fails on its merits. "A witness challenged for lack of personal knowledge must nonetheless be allowed to testify if there is evidence from which a rational trier of fact could find that the witness accurately perceived and recollected the testimonial events." (Anderson, supra, 25 Cal.4th at p. 574.) " 'The fact that a witness has made inconsistent and exaggerated statements does not indicate an inability to perceive [or] recollect . . . .' [Citation.] Nor does a witness's mental defect . . . necessarily reflect that the witness lacks the capacity to perceive or recollect. [Citations.] A witness's uncertainty about his or her recollection of events does not preclude admitting his or her testimony." (Lewis, supra, 26 Cal.4th at pp. 356-357.) Even testimony that "may have consisted of inconsistencies, incoherent responses, and possible hallucinations, delusions and confabulations" is not subject to exclusion if a rational trier of fact could find that the witness accurately perceived and recollected the events at issue. (Id. at p. 357.)
Here, a rational trier of fact could find that the victim accurately perceived and recollected the facts of his abuse. He was undeniably present at the scene of his own abuse. He was able to testify coherently and consistently about the essential facts, thereby showing that his testimony was based on his personal knowledge. The credibility issues raised by any inconsistencies, gaps, or uncertainties in the victim's testimony were questions for the jury. Hernandez has not shown the court erred.
Given our conclusion, we need not consider the Attorney General's argument that Hernandez forfeited any argument based on the victim's trial testimony (rather than his testimony at the section 402 hearing) by failing to renew his objection.
II
The Reliability of the Victim's Prior Statements
Hernandez next contends the trial court erred by admitting the victim's prior statements to his parents and to the child forensic interview specialist under section 1360. Prior to trial, the court stated that it was inclined to admit the statements because they satisfied the requirements of the statute, including that the "time, content, and circumstances of the statement provide sufficient indicia of reliability." (§ 1360, subd. (a)(2).) The court explained, "You know, without hearing from the child or the mother or the father or the baby-sitter, for example, my tentative would be that these statements will be admitted, because the child initially goes to the mother and describes a bald man committing a sexual act against him, he points at his penis, and then to the best of his ability expresses that the bald man put his mouth on his penis, and the baby-sitter corroborates what the child says by admitting that a bald man came over to the house on that day and that he was essentially left alone with that child in that house along with—I believe it was another individual, while she went to the laundry for 30 minutes." As further corroboration, the court relied on the DNA evidence and the injury to the victim's penis.
After the video of the victim's forensic interview was played for the jury, the trial court confirmed its tentative ruling: "This court finds that the victim showed that he could differentiate truth from falsehood, that he showed that he understood his surroundings, he understood basic concepts, and showed a sufficient level of understanding. This court also finds that the child's statements regarding the defendant's acts were spontaneous, that the questioning on the part of the interviewer was mostly open-ended, that there were very few, if any, leading questions, that there was very little prompting, and also finds that the child volunteered information. [¶] I also find that the child has been consistent about what he told others. I didn't find that there were any inconsistent statements with previous disclosures to other people. The child reports satisfaction, describes certain events clearly, he shows personal knowledge of his statements. There's no indication in this court's mind of any motive for the child to fabricate. [¶] Again, considering the testimony and the tape itself, I find the totality of the circumstances support its reliability, and it's admissible."
Section 1360 describes an exception to the hearsay rule in criminal proceedings for certain statements made by child abuse victims. Among other requirements, the court must find "in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability." (§ 1360, subd. (a)(2).) Because the parties dispute the applicable standard of review, we will explore the context of this requirement in some detail.
Section 1360's requirement of "sufficient indicia of reliability" appears to arise from the United States Supreme Court's now-defunct Confrontation Clause framework stated in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), overruled by Crawford v. Washington (2004) 541 U.S. 36, 60-62 (Crawford). The Roberts framework required any hearsay admitted against a criminal defendant to have adequate indicia of reliability. (Roberts, at p. 66.) The nature of this requirement depended upon the type of hearsay exception at issue. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." (Ibid.) Section 1360 was too new to be considered a firmly-rooted hearsay exception, so for purposes of the prior Confrontation Clause framework any statement admitted under this exception was required to show particularized guarantees of trustworthiness. (People v. Eccleston (2001) 89 Cal.App.4th 436, 445 (Eccleston).)
Section 1360's requirement of "sufficient indicia of reliability" effectively incorporated the prior Roberts Confrontation Clause standard of " 'particularized guarantees of trustworthiness.' " (Eccleston, supra, 89 Cal.App.4th at p. 445.) The United States Supreme Court examined the Roberts Confrontation Clause standard in the context of child sexual abuse in Idaho v. Wright (1990) 497 U.S. 805, 820-822 (Wright). As one court later summarized, "While not formulating an exclusive list of factors that would be relevant to determining reliability, and leaving states 'considerable leeway in the consideration of appropriate factors,' the [Supreme] Court did mention the following considerations that 'properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable . . . [and] also apply to whether such statements bear "particularized guarantees of trustworthiness" under the Confrontation Clause': (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected from a child of that age; and (4) lack of a motive to fabricate." (Eccleston, at p. 445.)
California courts adopted the Wright factors to guide their analysis of "sufficient indicia of reliability" under section 1360. (Eccleston, supra, 89 Cal.App.4th at p. 445; see People v. Brodit (1998) 61 Cal.App.4th 1312, 1329-1330 (Brodit).) And our Supreme Court has adopted the same nonexclusive factors in connection with the analogous child dependency hearsay exception. (In re Lucero L. (2000) 22 Cal.4th 1227, 1239 (Lucero L.); In re Cindy L. (1997) 17 Cal.4th 15, 29-30 (Cindy L.).)
As noted, Crawford overruled the prior Roberts Confrontation Clause framework. (Crawford, supra, 541 U.S. at pp. 60-62; People v. Rangel (2016) 62 Cal.4th 1192, 1217-1218 (Rangel).) It criticized the reliability requirement, explaining that "[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." (Crawford, at p. 61.) The Roberts reliability requirement no longer has any validity under the Confrontation Clause. (Rangel, at pp. 1217-1218.) Instead, the touchstone of any Confrontation Clause analysis is the testimonial character of the hearsay statement. If a hearsay statement is testimonial, the Confrontation Clause generally bars its admission, regardless of its reliability, unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Crawford, at p. 68.) If the hearsay statement is not testimonial, the Confrontation Clause is not implicated. (Davis v. Washington (2006) 547 U.S. 813, 821.) Its admission is a matter of state evidentiary law only. (Ibid.) And, regardless of the testimonial character of the hearsay statement, the Confrontation Clause is not implicated where the declarant who made the statement testifies at trial and is subject to cross-examination. (People v. Clark (2016) 63 Cal.4th 522, 601 (Clark) [" 'The Sixth Amendment confrontation clause does not bar hearsay statements of a witness who testifies at trial and is subject to cross-examination.' "].)
Despite these significant developments in Confrontation Clause jurisprudence, section 1360 remains the same. Its requirement that "the time, content, and circumstances of the statement provide sufficient indicia of reliability" still operates to limit the admission of hearsay statements that are unreliable as a matter of state evidentiary law. (§ 1360, subd. (a)(2).) Thus, although the Wright factors no longer apply in the Confrontation Clause context, they still inform analysis of the section 1360 hearsay exception. (See In re I.C. (2018) 4 Cal.5th 869, 891 (I.C.) [continuing to apply the Wright factors in the context of the child dependency hearsay exception]; see also id. at p. 889, fn. 6 [discussing Wright after Crawford].)
With this background in mind, we turn to the parties' dispute over the applicable standard of review. Hernandez argues that we review the trial court's determination independently. (See Eccleston, supra, 89 Cal.App.4th at p. 445 ["A trial court's findings concerning the indicia of reliability are subject to independent review on appeal."].) The Attorney General argues that we review the determination for abuse of discretion. (See Brodit, supra, 61 Cal.App.4th at p. 1330 ["In our view, the court did not abuse its discretion when it found the hearsay statements . . . were reliable."].)
Eccleston's independent review standard reflects the prior constitutional underpinnings of the reliability requirement. (See Eccleston, supra, 89 Cal.App.4th at p. 445, citing Lilly v. Virginia (1999) 527 U.S. 116, 136.) Under prior Confrontation Clause jurisprudence, a reviewing court was required to independently review whether a hearsay statement had particularized guarantees of trustworthiness: "Nothing in [the United States Supreme Court's] prior opinions . . . suggests that appellate courts should defer to lower courts' determinations regarding whether a hearsay statement has particularized guarantees of trustworthiness. To the contrary, those opinions indicate that we have assumed, as with other fact-intensive, mixed questions of constitutional law, that 'independent review is . . . necessary . . . to maintain control of, and to clarify, the legal principles' governing the factual circumstances necessary to satisfy the protections of the Bill of Rights." (Lilly, at p. 136.)
After Crawford, however, the reliability requirement no longer has a constitutional basis. (Crawford, supra, 541 U.S. at pp. 60-62; Rangel, supra, 62 Cal.4th at pp. 1217-1218.) And where, as here, the hearsay declarant testifies at trial and is subject to cross-examination, the Confrontation Clause has no application at all. (Clark, supra, 63 Cal.4th at p. 601.) At least under these circumstances, the determination under section 1360 is purely a matter of state evidentiary law. It is therefore reviewed like most other questions of admissibility, for abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725; see also Cindy L., supra, 17 Cal.4th at p. 35 [applying the abuse of discretion standard to admission of evidence under the child dependency hearsay exception].)
We need not consider the substantive rules of admissibility, or the applicable standard of review, in other contexts (e.g., where the hearsay declarant does not testify). Suffice it to say that the testimonial nature of such hearsay would likely figure prominently in any such analysis. (See generally Ohio v. Clark (2015) ___ U.S. ___ ; see also I.C., supra, 4 Cal.5th at p. 889, fn. 6.) These issues are not presented here because, as we have noted, the declarant testified and was subject to cross-examination. (See Clark, supra, 63 Cal.4th at p. 601.)
Under this standard, Hernandez has not shown error. The trial court did not abuse its discretion by finding that the victim's prior statements had sufficient indicia of reliability and admitting those statements into evidence. As noted, courts generally consider the following nonexclusive factors: "(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected from a child of that age; and (4) lack of a motive to fabricate." (Eccleston, supra, 89 Cal.App.4th at p. 445; accord, Brodit, supra, 61 Cal.App.4th at pp. 1329-1330.) "Whether ' "particularized guarantees of trustworthiness" ' exist is determined by examining 'the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.' " (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1374 (Roberto V.).)
Here, the trial court could reasonably find that the victim's initial statements to his father were spontaneous, without any prompting, and his subsequent statements were largely made in response to open-ended questions. (See Eccleston, supra, 89 Cal.App.4th at pp. 446, 448.) The court also could find that the victim's statements were substantially consistent in substance over multiple retellings. (See Lucero L., supra, 22 Cal.4th at p. 1250.) The record likewise reflects no reason why the victim would fabricate a story about Hernandez. (See Brodit, supra, 61 Cal.App.4th at p. 1330.) Finally, the trial court's finding of competency supports the statements' reliability. (See I.C., supra, 4 Cal.5th at p. 891; Brodit, at p. 1330.)
Hernandez points out that the victim's father and mother did not always understand what the victim told them, but this does not lessen the reliability of the statements they did understand and remember. "There is no evidence that [the parents] had any preconceived ideas of what happened or what she wanted the victim to say." (Eccleston, supra, 89 Cal.App.4th at p. 448.) Similarly, although some of the victim's statements in the forensic interview were inconsistent or unintelligible, the statements viewed as a whole were sufficiently clear and consistent that the trial court could reasonably find them reliable. (See I.C., supra, 4 Cal.5th at p. 896 ["A child's account may reflect uncertainty, and may even contain some contradictions, and nevertheless warrant the court's trust."].) Hernandez also cites allegedly conflicting evidence, including the victim's parents' statements to police. Even if such statements could be considered in determining reliability (cf. Wright, supra, 497 U.S. at p. 821; Roberto V., supra, 93 Cal.App.4th at p. 1374), they do not demonstrate that the court abused its discretion. Even assuming there were some material inconsistencies in the parents' statements, the court could reasonably find the victim's statements reliable based on the totality of the circumstances, as discussed above. Hernandez has not shown the court erred by admitting the victim's prior statements under section 1360.
In a related argument, Hernandez claims the admission of the victim's prior statements and trial testimony violated his due process rights under the United States Constitution. We disagree. Apart from specific constitutional guarantees, "state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial. [Citation.] Only when evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice,' [citation] have we imposed a constraint tied to the Due Process Clause." (Perry v. New Hampshire (2012) 565 U.S. 228, 237; accord, People v. Fuiava (2012) 53 Cal.4th 622, 696-697.) The evidence at issue here does not meet that standard. In support of his argument, Hernandez cites the factors in Wright, supra, 497 U.S. at pages 821-822. As discussed above, consideration of those factors is no longer compelled by the Confrontation Clause. (Crawford, supra, 541 U.S. at pp. 60-62; Rangel, supra, 62 Cal.4th at pp. 1217-1218.) And, it appears they do not apply in the due process context either. (See Desai v. Booker (6th Cir. 2013) 732 F.3d 628, 631-632 ["The Supreme Court has not held that those now-overruled Confrontation Clause precedents apply with full force (or any force) to due process challenges to the admission of evidence."].) While there appears to be some residual constitutional protection against wholly unreliable evidence (see Michigan v. Bryant (2011) 562 U.S. 344, 370, fn. 13), Hernandez has not shown the evidence at issue here was so unreliable as to constitute a constitutional violation for the reasons we have already discussed. --------
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. DATO, J.