Opinion
H032551
9-19-2008
THE PEOPLE, Plaintiff and Respondent, v. HONORATO HERNANDEZ, Defendant and Appellant.
Not to be Published
I. INTRODUCTION
After a court trial, defendant Honorato Hernandez was found guilty of one felony count of continuous sexual abuse of a child — resident child molesting (Pen. Code, § 288.5, subd. (a)) involving victim C.V., a child under the age of 14, and sentenced to the middle term of 12 years.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument in his own behalf within 30 days. The 30-day period has elapsed without any response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Based on our review, we have concluded that there is no arguable issue on appeal. Following the California Supreme Courts direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide "a brief description of the . . . procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed."
II. FACTUAL AND PROCEDURAL BACKGROUND
The complaint filed on May 1, 2007, charged defendant with committing two felony offenses involving victim C.V., a child under the age of 14, including one count of continuous sexual abuse of a child — resident child molesting (§ 288.5, subd. (a); count 1) and one count of sexual penetration with a foreign object accomplished by a threat of retaliation in the future against the victims mother, L. (§ 289, subd. (a)(2); count 2). On June 6, 2007, defendant waived his right to a preliminary hearing and the parties stipulated that the felony complaint would be deemed to be the information.
A hearing on defendants Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) was held on August 15, 2007. Thereafter, defendant waived his right to a jury trial and the case proceeded to a court trial. The one-day court trial was held on August 20, 2007. The witnesses who testified at the court trial included the victim, C.V.; S., C.V.s aunt; L., C.V.s mother; and Detective Tony Lamonica.
According to the testimony of the witnesses, defendant was the longtime live-in boyfriend of C.V.s mother. He had lived with them since C.V. was two years old. While her mother was at work, C.V. was usually alone in the house with defendant. C.V. was 11 years old when defendant touched her in an improper way for the first time. On that occasion, defendant rubbed her private area and her breasts under her clothing with his fingers. Defendant subsequently touched her private area more than 10 times. He hurt her once by putting his finger inside her. Another time, defendant asked C.V. to grab and rub his penis. Defendant also rubbed his penis against her private area once or twice.
Defendant told C.V. that if she did not let him touch her, he would hurt her mother. C.V. believed defendants threat because defendant and her mother fought a lot and defendant would hit her mother when they were really mad. Defendant also told C.V. that he was touching her because he had given her money. Although C.V. did not consider defendant to be her stepfather, she did not mind him staying in their house because he made her mother happy.
When C.V. was 13 years old, defendant touched her for the last time in the usual way, by rubbing her. Defendant and C.V.s mother had argued the night before about C.V. visiting teenage boys who lived nearby. After defendant touched her, C.V. told her cousin that defendant was touching her in a way that made her feel uncomfortable. Later, when C.V. told her mother about defendant touching her, C.V.s uncle heard her and told C.V.s grandmother about it. The next morning, the family members informed S., C.V.s aunt, who then discussed the matter with C.V. On April 27, 2007, S. contacted the sheriffs department.
C.V.s mother, L., talked to defendant about C.V.s statement that he had touched her in a way that made her feel uncomfortable. Defendant said C.V. was lying and he had not touched her. L. believes defendant. However, she sometimes also believes that C.V. is telling the truth.
On August 21, 2007, the day after the court trial, the trial court found defendant guilty on count 1, continuous sexual abuse of a child — resident child molesting (§ 288.5, subd. (a)) and not guilty on count 2, sexual penetration with foreign object accomplished by a threat of retaliation in the future against C.V.s mother. On November 1, 2007, defendant filed a motion for a judgment of acquittal pursuant to section 1118.1, or, in the alternative, a motion for new trial and an order for a psychologist pursuant to section 288.1. The grounds for the motion were defendants contentions that the evidence was insufficient to prove substantial sexual conduct or, alternately, he was entitled to a referral for a psychological report so he could petition the court for felony probation. The trial court denied the motion on November 26, 2007.
At the sentencing hearing held on November 27, 2007, the trial court imposed the middle term of 12 years on count 1 and dismissed count 2 in the interests of justice. The court also imposed a $2,400 restitution fund fine and also imposed and suspended a $2,400 restitution fine. Defendant filed a notice of appeal on January 17, 2008.
Having carefully reviewed the entire record, we are satisfied that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
We concur:
McADAMS, J.
DUFFY, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.