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People v. Hernandez

Court of Appeals of California, First Appellate District, Division Two.
Nov 25, 2003
No. A099803 (Cal. Ct. App. Nov. 25, 2003)

Opinion

A099803.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO HERNANDEZ, Defendant and Appellant.


Appellant, an adult married man with two children, was convicted of raping and sexually assaulting a 13-year-old girl. On appeal, he contends that the trial court erred by denying his motions for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) without conducting an adequate inquiry, and by admitting into evidence a statement made by his juvenile accomplice that he contends was coerced. We find no reversible error, and affirm.

Factual and Procedural Background

The details of appellants crimes are not critical to the issues he raises on appeal, so we narrate them only briefly. In mid-November 2001, the victim, Stephanie, was introduced over the telephone to appellants teenage brother-in-law, Rene, by a mutual friend who had met Rene through the Internet. On November 25, 2001, Stephanie and Rene spoke by telephone and agreed to meet in person at 6:00 p.m. at a park near Stephanies home. Stephanie left her house and walked to the park while her mother, Maria, was out shopping.

We refer to Stephanies adult relatives by their first names in order to protect Stephanies identity.

When Stephanie arrived at the park, Rene introduced her to appellant, whom he referred to as his "cousin," although appellant was actually Renes brother-in-law (his adult sisters husband). Appellants two small children were playing in the playground nearby.

After a brief conversation with appellant, Stephanie and Rene got into appellants pickup truck and began kissing, with her consent. After a few minutes, Rene went to speak to appellant. When they returned, appellant brought his children, and all of them left the park together in the truck. While appellant dropped the children off at a friends house, Rene took off Stephanies shoes and glasses and continued to kiss her. She was not comfortable with this and did not want it to happen, but she was frightened and did not tell him to stop.

When appellant came back to the truck after leaving off his children, he drove with Stephanie and Rene to a statue factory. During the drive, Rene continued to kiss Stephanie, and gave her a hickey on her neck. When they arrived at the factory, appellant put a shade up over the truck windshield to prevent anyone seeing in. Rene got out of the car, and appellant asked him to "give me ten minutes." Appellant then allegedly raped Stephanie and tried to force her to copulate him orally.

Appellant then left the truck, and Rene got in and raped her as well. After that, appellant drove Stephanie home, telling her not to say anything because he was an adult and could get arrested. When they arrived at Stephanies home, appellant parked his truck at the bottom of a hill nearby, and Rene walked Stephanie part of the way to her home.

By this time, Maria had arrived home from the store. When she learned from Stephanies brother that Stephanie had left the house alone and had been gone for about two hours, Maria called her brother Roberto, who was a police officer. He came to the house, along with other officers who responded to Marias subsequent call to 911.

Roberto was still in the house when appellant brought Stephanie home. Hearing the truck drive up, Roberto looked outside and saw Stephanie walking up the hill toward the house. At first, Stephanie told Roberto that she had gone to get ice cream with Rene and appellant, whom she described as a friend and his cousin. When Stephanie got to where the light was better, however, Roberto saw the hickey on her neck; at that point, he told Maria to call the police, and got into his car to follow appellants truck.

Roberto forced appellant to stop his truck by pulling in front of it. He showed appellant and Rene his police badge, and asked why Stephanie had been out without her mothers permission. Rene responded that she had been with him, and appellant stated that he was Renes uncle and had driven him to meet Stephanie. Roberto persuaded appellant to follow him back to Stephanies home, where the police were waiting.

Stephanie initially declined to discuss what had happened to her, but ultimately Roberto persuaded her to tell him a little about the assault. He then asked the police to return, and she related part of the story to one of the investigating officers, and later told a female officer at the police station that appellant had tried to get her to orally copulate him.

Appellant was arrested at his home later that night, at around midnight. He admitted to the police that he had met Stephanie and driven her in his truck, but denied that he had engaged in any sexual activity with her. The next day, November 26, appellants wife brought the investigating officer a sweatshirt and a yellow condom, and directed him to the location of the statute factory. At the scene, the officer found a used black condom and a white shirt.

Up to this time, Stephanie had not revealed that appellant and Rene had engaged in sexual intercourse with her. After she learned that the police had found a used condom at the scene, however, she gave them a complete statement about what had occurred. A nurse then conducted a sexual assault examination, which revealed injuries consistent with forceful penetration and sexual trauma. DNA testing later established that the semen in the condom could have been Renes, but was not appellants.

Rene was arrested after Stephanie revealed that he had intercourse with her, and charged with two counts of forcible child molestation. He plea bargained to one count of child molestation without force, and the prosecution called him as a witness at trial. Renes testimony is described in more detail below, in connection with appellants contention that one of Renes statements was coerced and should not have been admitted into evidence.

Originally, appellant was charged by information filed February 8, 2002, with six counts, including one for forcible oral copulation and two separate rape counts. On April 11, an amended information was filed charging seven counts, including a new count for forcible child molestation. The case went to trial on a second amended information filed on May 1, during the course of jury selection, in which appellant was charged with five counts: (1) forcible rape (Pen. Code, § 261, subd. (a)(2) ); (2) attempted forcible oral copulation (§§ 664, 288A, subd. (c)(2)); (3) attempted forcible child molestation (§§ 664, 288, subd. (b)); (4) aggravated sexual assault of a child under 14 years of age and more than 10 years younger than himself (§ 269, subd. (a)); and (5) forcible child molestation (§ 288, subd. (b)(1)). The forcible oral copulation count and one of the rape counts were dismissed, and the forcible child molestation count was amended to charge an attempt.

All further unspecified references to dates are to the year 2002.

All further unspecified statutory references are to the Penal Code.

The jury convicted appellant on all five counts, and he was sentenced to 15 years to life for aggravated sexual assault of a child, with a concurrent four-year sentence for attempted forcible oral copulation, and stayed sentences under section 654 on the other counts. This timely appeal followed.

Discussion

A. Denial of Marsden Motions

1. Facts

Appellant filed a written Marsden motion on March 6, and made a second such motion orally at the start of his trial on April 30. The trial court held a hearing on each motion, and denied both.

Appellants initial written motion was submitted on a preprinted form, on which he checked boxes indicating that the grounds for the motion were that his trial counsel (1) "has failed and/or refused to confer with [appellant] concerning the preparation of the defense"; (2) "has failed and/or refused to communicate with [appellant]"; (3) "has failed and/or refused to perform and/or to have performed investigation(s) critical and necessary to the defense"; (4) "has failed and/or refused to prepare and file motion(s) critical to the defense"; and (5) "has failed and/or refused to declare prejudice and/or conflict against [appellant] and due to said failure has taken on the role of a surrogate prosecutor against [appellant]s interest."

At the hearing, the trial judge asked appellant why he thought he was not getting adequate representation, and appellant responded that, "I feel like hes not using his best ability as a lawyer to defend me, to represent me." The court asked for more specifics, and appellant responded that he felt had not committed the crime he was accused of, yet his trial counsel had not "been able to get rid of any of the charges." After appellant acknowledged that he had not yet had a trial, the judge turned to appellants trial counsel and asked him to respond to appellants complaint of inadequate representation.

Counsel stated that he had hired an investigator who had visited appellant in jail several times, talked to the witnesses, and submitted reports. He acknowledged that he had not been able to get rid of the charges, but explained that the charges were serious and the case against appellant was strong: Stephanie had been interviewed by the police several times and had specifically named appellant as the person that raped her; Rene had implicated appellant as well; appellant had been caught by the police dropping Stephanie off at her house, and had admitted his presence at the scene; and Stephanies medical examination tended to substantiate her claim that she had been raped.

In the course of his explanation, counsel misstated two facts. First, he said that appellants admissions to the police "put him with the girl in the back seat of the car alone." Second, he said, "I believe, if Im not mistaken, he admitted to having sex with the girl[,] but said, it was consensual. And so they have him on, at the very least, statutory rape with a child, that is much younger than he is, which are all felonies." Appellant had not, in fact, admitted to the police that he had been alone in the truck with Stephanie, or that he had engaged in any sexual activity with her, consensual or not.

When the judge asked appellant to respond, however, appellant flatly denied that he had had sexual relations with Stephanie. He admitted having been in the truck, but not that they had been alone. Counsel then assured the court that his investigation was continuing, and that if any exculpatory evidence emerged, he would make an appropriate motion, or "work it to his advantage" in some way.

Asked by the judge whether he had any other problems with his counsel, appellant responded that counsel had only visited him in jail once. Counsel responded by listing the dates of three visits he had made to appellant in jail, plus another telephone conversation, and other contacts through his investigator and through members of appellants family. Appellant continued to deny that counsel had visited him in jail more than once, but acknowledged that counsel had contacted his family members.

Appellant next expressed a concern that counsel was not preparing as well as possible for the trial. Counsel explained that there would be DNA evidence, and that if the DNA turned out negative for appellant, that would be "very good for our case." He also explained that he was preparing for trial in his usual manner, but that the trial was not close enough yet for him to be in heavy trial preparation. He added that he was waiting for Renes juvenile case to be resolved in order to see whether Rene could be a witness for appellant, and that his investigator had attempted to interview the victim, but had been flatly rebuffed by the victims mother.

The trial judge then asked appellant whether he wanted to say anything else, and appellant said, "No, thats all." Nonetheless, the trial judge went on to ask counsel to respond to the allegation in the written motion that he had "taken on the role of a surrogate prosecutor." Counsel responded that he had spent his entire 11-year legal career exclusively as a criminal defense lawyer, and had handled "everything from driving with suspended license up to murder," including "a lot of . . . sexual assault type cases," through jury trials.

The trial judge then offered appellant yet another opportunity to bring his concerns to the courts attention. Appellant responded that "The doubt that I have is, I dont feel like hes working the best possible way." Counsel assured appellant and the court that he was happy to work with appellant and would give him "the best possible representation." After summarizing counsels statements about what he had done and was doing in defense of the case, the trial court denied the motion.

On the morning of April 30, the day the trial was scheduled to begin, appellant made a second, oral Marsden motion, accompanied by a written statement that is not part of the record on appeal. At an in camera hearing on the motion, appellant explained that since the first Marsden hearing, his trial counsel had suggested that he be represented by another attorney. Trial counsel explained that appellants family had been considering getting retained counsel, so he had given them the name of another attorney whom he recommended. When appellant disagreed with this explanation, counsel added that he "thought we made amends"; that appellant had apologized for making the first Marsden motion; and that appellant "seemed to be happy with me" and "was getting along famously, I thought, until about three minutes ago."

Evidently, appellants written statement indicated that he felt he would receive ineffective assistance from counsel because counsel had questioned his innocence. The trial judge asked appellant how and when this had occurred, and appellant contended that one day when he was in court, counsel had told him he raped the girl and asked him why. Counsel denied having said anything like that, and explained that he had told appellant it was a very tough case, and that the jurors might find him guilty merely because he had driven Stephanie to an isolated spot at night and had been alone in the back seat with her, as confirmed by another independent witness (i.e., Rene). Asked whether he had anything further to say, or any response, appellant responded that he did not. Given appellants admittedly somewhat limited English, we cannot fault the trial court for accepting counsels explanation and concluding that at worst, appellant had misunderstood counsel to be stating his own view of appellants guilt, when he was actually describing the jurys likely reaction to the evidence.

Counsel did not repeat his earlier erroneous statement that appellant had admitted to being alone in the truck with Stephanie.

Appellant also complained that counsel had asked another client of his, a fellow jail inmate of appellants, to deliver a note to appellant regarding a potential plea bargain, and had thereby breached the attorney-client privilege. Counsel admitted that he had done so, but explained that he had discussed the plea bargain proposal with appellant earlier, and the note had simply followed up with an explanation of one of the terms of the proposed sentence. The trial court commented that although the matter could have been handled differently, it did not rise to the level of ineffective assistance of counsel.

Finally, appellant reiterated his general complaint that he did not trust counsel, and did not believe he was "doing the best of his ability." He offered to waive time in order to retain a private attorney. Counsel responded that the family had spoken with one potential retained counsel and contacted two others, but he doubted that they would actually be able to hire any of them due to lack of resources. He also reiterated that he had "investigated every single aspect of this case," had employed "a fine investigator," had "done it all," and was "absolutely prepared for trial."

The trial court denied the motion, commenting that he was "convinced that while [appellant] has expressed some concerns, they dont rise to the level of ineffective assistance of counsel." Immediately after the conclusion of the Marsden hearing, after reconvening in open court, the trial court also denied appellants motion to continue the trial date in order to permit him to substitute retained counsel and consult with him regarding a pending plea bargain offer. The court reasoned that the request for continuance came too late, given that the plea offer had been pending since April 9, the trial date had been set on March 6, and appellant had had ample time to retain counsel since first expressing dissatisfaction with his appointed counsel in early March.

2. Analysis

A criminal defendant represented by court-appointed counsel may make a Marsden motion, requesting substitution of a new attorney, if the defendants right to counsel would be substantially impaired by continuing with the original attorney. (Marsden, supra, 2 Cal.3d at p. 123.) "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)

In conducting a Marsden hearing, the "court must inquire on the record into the bases of defendants complaints and afford him an opportunity to relate specific instances of his attorneys asserted inadequacy. [Citations.] Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citations.]" (People v. Hill (1983) 148 Cal.App.3d 744, 753; see also Marsden, supra, 2 Cal.3d at pp. 123-124; People v. Turner (1992) 7 Cal.App.4th 1214, 1219.) However, "[o]nce the defendant is afforded an opportunity to state the reasons for discharging an appointed attorney, the decision to allow a substitution of attorney is within the discretion of the trial judge unless defendant has made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citations.]" (People v. Crandell, supra, 46 Cal.3d at p. 859.) Thus, while the trial courts failure to hear a defendants request for substitution of appointed counsel is prejudicial per se (People v. Hill, supra, 148 Cal.App.3d at p. 755), if a sufficient hearing is conducted on a Marsden motion, the courts ruling is reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 857.)

In this case, appellant contends that the trial courts factual inquiry into the basis for his Marsden motions was "perfunctory and inadequate," and therefore "failed to uncover actual prejudice" against him on the part of his trial counsel. Specifically, he argues that the trial judge should have asked counsel why appellant was contending that counsel prejudiced against him. It was appellants task, however, not trial counsels, to articulate his reasons for making the argument, and the judge gave him every opportunity to do so. "A trial courts duties are fully performed when it has given the defendant every opportunity to present and substantiate his specific charges. [Citations.]" (People v. Huffman (1977) 71 Cal.App.3d 63, 80-81.) Here, the judge gave appellant ample opportunity to explain his reasons for wanting new counsel. Indeed, the judge explicitly and repeatedly asked appellant to provide details, and repeatedly received only vague, general expressions of discontent in reply.

Having determined that the courts inquiry was sufficient, we now examine whether the courts denial of the motions was an abuse of discretion. In Marsden, supra, 2 Cal.3d at page 123, the court recognized that " `[a] defendants right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. . . . "Moreover, the defendant has the burden of proving appointed counsel is providing ineffective assistance. (See People v. Lara (2001) 86 Cal.App.4th 139, 150.)

In this case, the reasons appellant provided for his first Marsden motion fell far short of establishing that a denial of substitution of counsel would substantially impair his constitutional right to effective assistance of counsel. Although appellant expressed a general sense that his counsel was not doing as much as he would have liked to prepare his defense, he did not point to any situation, event, or fact that signified a breakdown in the attorney-client relationship of such magnitude as to jeopardize appellants right to effective assistance of counsel. (See, e.g., People v. Smith (1993) 6 Cal.4th 684, 696.) Counsel may have been less attentive than appellant would have liked, but the record establishes that appellants counsel was an experienced criminal defense attorney and was making reasonable efforts to represent appellant effectively. (See People v. Silva (1988) 45 Cal.3d 604, 622 ["the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence"].) Indeed, at the end of the first Marsden hearing, after counsel described his efforts on appellants behalf and his qualifications, appellant acknowledged that "I didnt know he was doing all that." Under the circumstances, the court did not abuse its discretion in denying appellants first Marsden motion.

In this connection, we note that the day after appellants second Marsden motion was denied, the information was amended to reduce the number and severity of the counts charged against appellant.

With regard to the second motion, appellant argues that it "should have been glaringly apparent to the [trial] court" that counsel was prejudiced against appellant, because counsel made statements during the first Marsden hearing that not only indicated a belief in appellants guilt, but also were untrue. As noted above, counsel did misstate the facts at the first hearing, by indicating that appellant had made two admissions to the police that he had not in fact made. As to one of these, however, counsel explicitly acknowledged that he might have been mistaken. In the absence of any evidence to the contrary, we assume that the other misstatement likewise resulted from a mistake rather than a deliberate misrepresentation. Counsels acknowledgement of the strength of the evidence against appellant, and his inadvertent mistake in referring to the degree of culpability established by that evidence, do not in and of themselves constitute grounds for replacing him if he was otherwise performing effectively. (See People v. Memro, supra, 11 Cal.4th at pp. 857-858.)

Appellant also argues that the trial court "compounded its error" in denying the second Marsden motion by also denying appellants request for a continuance of the trial. In light of the belatedness of the request, the lack of certainty that appellants family would succeed in obtaining retained counsel, and appointed counsels representation during the Marsden hearing that he was fully prepared to go to trial, we see no abuse of discretion in denying the continuance. People v. Courts (1985) 37 Cal.3d 784, on which appellant relies, is distinguishable. In that case, the motion for continuance was made a week before trial, and by the day the trial started, the defendant had already secured retained counsel and paid his fee. In this case, the motion was not made until the very day of trial, and even then, it was far from clear that appellants family would be able to afford to retain counsel even if the continuance were granted. Thus, even if we accept appellants contention that the request for continuance was made in good faith and was not a "ploy," it was still too little, too late.

In sum, the trial court conducted fully adequate inquiries in response to both Marsden motions, and correctly concluded that neither of them presented adequate grounds. Moreover, it appears from the trial record that counsel conducted a defense that met the constitutional standard for effective assistance; significantly, appellant does not argue otherwise on this appeal. Although counsel did not call any witnesses in the defense case, he cross-examined the prosecutions witnesses in detail. He never suggested to the jury that appellant had admitted having sexual intercourse with Stephanie. On the contrary, in his closing argument he urged the jury to conclude, based on the DNA evidence and on one of Renes several differing accounts of the events, that Stephanie had sex only with Rene, probably consensually, and then lied and implicated appellant in order to avoid getting in trouble with her strict, schoolteacher mother. He also argued forcefully that Stephanie was not credible, based on the inconsistencies among the various accounts of the incident that she had given, and her admission on the stand that she was not always truthful. Accordingly, we cannot conclude that the trial court abused its discretion in denying either of the Marsden motions merely because trial counsel inadvertently misstated the facts about appellants admissions during an in camera hearing.

Appellant argues that trial counsels failure to call character witnesses in the defense case demonstrates that counsel was prejudiced against appellant and should have been replaced. The issue is only perfunctorily briefed, without citation of authority, and thus is not properly presented for our review. (See People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Ashmus (1991) 54 Cal.3d 932, 985-986, fn. 15, disapproved on another ground in People v. Yeomann (2003) 31 Cal.4th 93, 117.) Even if we were to address it on the merits, however, we would reject it. As respondent points out, as an experienced criminal defense lawyer, counsel may have had valid tactical reasons for not opening up the subject of appellants character. For example, appellant had a prior domestic violence arrest that resulted in a misdemeanor battery conviction, and the prosecution had moved for leave to cross-examine appellant and his wife about these facts if they testified. Thus, we are not persuaded that counsels failure to call defense witnesses lends any support to appellants Marsden claims.

B. Admission of Assertedly Coerced Statement

1. Facts

Rene testified at trial that appellant was alone in the truck with Stephanie for 10 to 20 minutes, but that he could not see what happened in the truck during that time, and that Stephanie looked "normal" afterwards, and was not scared or crying. Rene admitted having intercourse with Stephanie himself, but denied forcing her, and said she was not upset afterwards and agreed to be his girlfriend.

Rene was interviewed by the police three times. His trial testimony was impeached with the resulting statements. In the first interview, Rene denied that appellant was ever alone with Stephanie in the truck, and thus did not inculpate appellant. In Renes second interview, he said appellant had been alone in the truck with Stephanie for about 45 minutes, but that he did not see anything sexual occurring during that time. Rene admitted at trial that in his third interview, he told the police that he had seen appellant going up and down on top of Stephanie in the truck, while Stephanie cried out. He averred, however, that this statement was a lie, which he had invented because he felt pressured to incriminate appellant in order to try to avoid the 15-year prison sentence the police said he was facing.

Sergeant Figueroa, who conducted all three interviews, testified that the circumstances of the third one were as follows. When Stephanie finally told Figueroa for the first time that appellant and Rene had raped her, he arranged for Rene to be arrested in San Francisco and brought back to the San Mateo police station. Meanwhile, Figueroa put the black and yellow condoms and the shirts on the table in the interview room so Rene would be confronted with them when he was brought in. Rene was handcuffed when he arrived, but Figueroa removed the handcuffs when the interview began.

Prior to the interview, Rene was read his Miranda rights. Initially, he was upset and crying, but he calmed down as the interview proceeded. After engaging in a pretextual call in English, Figueroa hung up and "rattl[ed] off Penal Code charges" in an effort to elicit a response from Rene. Renes English was limited, however, and Figueroa did not know whether Rene had understood the telephone call or the Penal Code charges. The actual interview was conducted in Spanish, which Figueroa spoke fluently.

Figueroa then pointed to the items on the table, which included the black condom that was later shown to contain Renes semen, and Rene started crying, saying that he wanted to tell Figueroa everything, that he could not sleep, that his conscience was bothering him, and that he had been protecting appellant. Rene then said that appellant had sex with Stephanie twice. Figueroa asked whether Rene saw appellant on top of Stephanie, going up and down, and Rene said yes. Rene estimated that appellant was alone with Stephanie for 45 minutes to an hour. He said that when appellant got out of the truck, appellant said that he could not penetrate Stephanie "that much," and that "she doesnt want me. She want[s] you."

Figueroa acknowledged that on a couple of occasions during this interview, he accused Rene of lying, but he denied threatening Rene or raising his voice. Nor did he suggest that Rene would get a benefit for giving incriminating information about appellant. Figueroa told Rene that the charges were serious and had heavy penalties, but he denied saying they carried a 15- to 20-year penalty, and indicated that it was Rene who mentioned "15 or 20 years."

2. Analysis

Appellant contends that Renes statements during his third interview were obtained by coercion, and therefore that, under federal case law (citing, e.g., Clanton v. Cooper (10th Cir. 1997) 129 F.3d 1147, 1158), their admission into evidence violated due process. Respondent counters that the statements in question were not coerced, and that in any event, under California law, a defendant cannot complain of the admission of a third partys involuntary statement unless the resulting trial testimony was unreliable as a result of ongoing coercion. (See People v. Badgett (1995) 10 Cal.4th 330, 342-344, 348; but see People v. Lee (2002) 95 Cal.App.4th 772, 781-788 [coerced third party statements are inherently unreliable, and thus always inadmissible; defendant need not show unreliability separately except when seeking to exclude evidence that is the fruit of a coerced statement].) We need not address these issues, however, for two reasons.

First, appellants trial counsel failed to object when the prosecution introduced evidence of Renes statements during the third interview. Appellants argument that they should not have been admitted is therefore waived on appeal. (Evid. Code, § 353, subd. (a); People v. Kelly (1992) 1 Cal.4th 495, 519.)

Second, appellant has not demonstrated that he was prejudiced by the admission of Renes pretrial statements. Rene testified at trial that appellant was alone in the truck with Stephanie for 10 or 15 minutes. In Renes first and second interviews, which appellant does not contend were coerced, he corroborated much of the remainder of Stephanies account of the evenings events. Stephanies testimony that she had been raped was substantiated by independent forensic evidence.

With Stephanies credibility thus bolstered, her testimony that appellant raped her, added together with the other unchallenged evidence, amounted to convincing evidence of appellants guilt, even if the incriminating statements from Renes third interview are disregarded. Accordingly, even if the issue had been preserved, and even if we were to find that Renes statements were improperly admitted (an issue we do not reach), we would find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)

Disposition

The judgment is affirmed.

We concur: Kline, P.J., Haerle, J.


Summaries of

People v. Hernandez

Court of Appeals of California, First Appellate District, Division Two.
Nov 25, 2003
No. A099803 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO HERNANDEZ, Defendant…

Court:Court of Appeals of California, First Appellate District, Division Two.

Date published: Nov 25, 2003

Citations

No. A099803 (Cal. Ct. App. Nov. 25, 2003)