People v. Hernandez CA5 ( 2022 )

Filed 8/29/22 P. v. Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081225
Plaintiff and Respondent,
(Super. Ct. No. BF172182A)
v.
KEVIN JUAN HERNANDEZ, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kathryn
L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Franson, J.
Defendant Kevin Juan Hernandez was found guilty of several sex offenses against
a minor, Jane Doe, when she was between eight and 12 years of age. He was sentenced
to an aggregate term of 55 years to life plus 12 years. On appeal, defendant contends that
(1) the trial court abused its discretion in denying defendant’s motion requiring Jane Doe
be referred to as the “alleged victim” rather than the “victim,” and (2) the abstract of
judgment contains clerical errors that must be corrected. The People disagree as to the
first issue but agree that the abstract of judgment contains clerical errors. We affirm the
judgment and order the trial court to issue an amended abstract of judgment correcting
the clerical errors.
PROCEDURAL SUMMARY
On September 25, 2019, the Kern County District Attorney filed an amended
information, charging defendant with sexual intercourse with a child 10 years old or
younger (Pen. Code, § 288.7, subd. (a);1 count 1), oral copulation of a child 10 years old
or younger (§ 288.7, subd. (b); count 2), sexual penetration of a child 10 years old or
younger (§ 288.7, subd. (b); count 3), and continuous sexual abuse of a child (§ 288.5,
subd. (a); count 4).
On September 26, 2019, the jury found defendant guilty on all counts.
On May 20, 2020, the trial court sentenced defendant to an aggregate term of
55 years to life plus 12 years as follows: on count 1, 25 years to life (the statutorily
mandated sentence; § 288.7, subd. (a)); on counts 2 and 3, 15 years to life (the statutorily
mandated sentence; § 288.7, subd. (b)), to be served consecutively; and on count 4,
12 years (the middle term), to be served consecutively.
On June 1, 2020, defendant filed a notice of appeal.
1 All statutory references are to the Penal Code.
2.
FACTUAL SUMMARY 2
Defendant first had sexual contact with Jane Doe when she was approximately
five or six years of age, and he was approximately 15 years of age. Defendant initiated
the sexual contact “[w]henever he had the chance.” The sexual contact continued until
Jane Doe was approximately 12 years of age and defendant was approximately 22 years
of age. Defendant made her touch her mouth to his penis. That occurred multiple times,
most recently when she was eight or nine years of age. Defendant put his fingers in
Jane Doe’s vagina more than 10 times. Defendant put his penis in Jane Doe’s vagina
more than 40 times.
DISCUSSION
I. Referring to Jane Doe as the “Victim”
Defendant argues, as he did below, that referring to Jane Doe as the “victim”
“undermined the presumption of innocence guaranteed by the due process clause.” The
People disagree. We agree with the People.
A. Background
Before trial, defendant moved the trial court for an order requiring that Jane Doe
be referred to as the “alleged victim” rather than the “victim.” Referring to Jane Doe as
the “victim,” defendant argued, necessarily suggested that a crime occurred and
“violate[d] the presumption of innocence.” The prosecutor opposed defendant’s motion.
The trial court denied defendant’s motion, explaining that the “term ‘victim’ is so
ingrained or used in determining how to instruct the jury, [in] how to differentiate
between the person committing the crime and the victim of the crime, that taking the
word out would be very difficult and possibly confusing in determining …” how to
instruct the jury.
2 Much of the testimony offered at trial is irrelevant to the issues on appeal. For the
sake of brevity and to protect Jane Doe’s privacy, our factual summary is limited.
3.
During jury voir dire, the trial court referred to a hypothetical victim to a potential
juror who reported they had been through training for mandated reporters for those
required to report sexual or physical abuse, as follows:
“Okay. Let’s just say that in this case a victim takes the stand and
explains to her what has happened to her. [¶] … [¶] Are you going to take
your training and say, hey, wait a minute, now I learned if that ever
happens, that’s an indication of abuse and automatically believe what she’s
saying, or are you going to take all the facts from the trial in and make a
decision?”
Later during the jury voir dire, while asking questions of a potential juror, the trial
court again referred to a hypothetical person who might refer to themself as a victim:
“So if you sat on this as a juror in this case and listened to the
evidence, you feel that if you were to hear from somebody that expressed
that they were a victim of sexual assault you would feel sad for them and
side with them?”
Toward the end of jury voir dire, in addressing the full potential jury, the trial
court referred to the charges against defendant and used the term “victim”:
“All right. [Defendant] is charged with the following crimes: That
he did willfully engage in sexual intercourse with a child who is ten years
old or younger, to wit, Jane Doe, …; did willfully engage in oral
copulation with a child who’s ten years old or younger, Jane Doe, same
victim; Count 3, did willfully engage in sexual penetration of a child who
was ten years old or younger, Jane Doe; and Count 4, on or about and
between January 11, 2011, and January 10, 2013, was a person who resided
with or had reoccurring access to a child under the age of 14, Jane Doe, the
same individual, who, over a period of not less than three months, engaged
in three or more acts of substantial sexual conduct.
“Defendant has pled not guilty to these charges and asked for a trial
by jury, so here we are.
“Does anybody feel they cannot be fair to both sides simply hearing
the charges?”
Very shortly after, the trial court emphasized the presumption of innocence to the
jury:
4.
“You all understand that the fact that [defendant] has been charged
with committing a crime is not evidence of his guilt. He’s only been
charged and no evidence has been presented to you yet. [¶] Would you all
agree with that? [¶] … [¶] [Juror], if I handed you the verdict form right
now and asked you fill it, your only two options at this point in the trial
right now are guilty or not guilty, how would you fill it out, having heard
no evidence, guilty or not guilty? [¶] … [¶] If you’ve heard no evidence, at
this point he’s only been charged, and I force you to make a decision, it’d
have to be not guilty because you haven’t heard any evidence. [¶]
Everybody agree with that?”
Defendant has identified, and we have found, no other instance in which the trial
court referred to a “victim” or referred to Jane Doe as the “victim” in the presence of the
jury.
During jury voir dire, the prosecutor referred to calling a hypothetical victim at
trial in the context of evaluating witness testimony:
“So if there was someone who was up there testifying and you
believed because of their body language and different factors that they were
lying, you wouldn’t accept that what they’re telling or saying to be the truth
without looking at the critical issue?
“Like if a victim were to get up and lie and you really thought, oh,
this is not—not true. You understand that there are people who can do that.
“You would agree?”
During her opening statement, the prosecutor referred to Jane Doe as “the victim”:
“You’re going to hear, most importantly, from [Jane Doe]. She’s the victim about
who[m] we have been speaking … [during] voir dir[e].” The prosecutor further referred
to Jane Doe as the “victim” twice in questioning one of the detectives who interviewed
Jane Doe and asking the detective general questions about standard procedures in
interviewing a victim, preparing a victim for a pretext call, and collecting DNA from a
victim. The detective referred to Jane Doe as the “victim” or by her first name and
repeatedly noted the police department’s normal procedures and common occurrences
with regard to a victim.
5.
B. Analysis
Defendant relies on People v. Williams (1860) 17 Cal.142 for the proposition that
the trial court referring to the complaining witness or a decedent as the “victim” at trial
violates the presumption of innocence because it improperly implies the guilt of the
defendant. (Williams, at p. 147; see People v. Taylor (1982) 31 Cal.3d 488, 494
[requiring a defendant to wear jail clothing “tends to undercut the presumption of
innocence by creating an unacceptable risk that the jury will impermissibly consider this
factor”].) In Williams, the trial court in a murder trial where the defendant claimed
self-defense read the jury an instruction which referred to the decedent as defendant’s
“victim.” (Williams, at p. 146.) Specifically, the instruction read, in relevant part, “the
fact, if you so find, that the defendant was seeking to enforce the collection of taxes
against another [person], or even against his victim, [did not] give the defendant any right
to take his life.” (Ibid.) That instruction, our high court concluded, was “calculated … to
create prejudice against the accused. It seem[ed] to assume that the deceased was
wrongfully killed, when the very issue was as to the character of the killing.” (Id. at
p. 147.) When the decedent or complaining witness “is referred to as ‘a victim,’ the
impression is naturally created that some unlawful power or dominion had been exerted
over his person. … The [c]ourt should not, directly or indirectly, assume the guilt of the
accused, nor employ equivocal phrases which may leave such an impression.” (Ibid.)
First, as to the trial court’s use of the term “victim,” the trial court referred to
Jane Doe as the “victim” only once and in the context of reading the charges. The court
noted that the offense charged in count 1 was against the “same victim” as charged in
count 2. Immediately thereafter, the trial court asked the jury if they could be fair to both
sides, explained the presumption of innocence, gave an anecdote about the presumption
of innocence, and confirmed that the jury agreed with the presumption of innocence. The
trial court did not instruct the jury that Jane Doe was a victim or otherwise imply that
defendant was guilty of any offense. Quite the opposite, the trial court advised the jury
6.
that since it had heard no evidence, it was required to find defendant not guilty of any
offense at that time. The trial court’s reference to Jane Doe as the “victim” was not error
and Williams does not compel a contrary result.
The trial court’s two other uses of the term “victim” in jury voir dire were not
references to Jane Doe as a victim and did not suggest that defendant was guilty of any
offense. The first reference to a victim being called to testify in this case was used by the
court to illustrate that a juror should not always accept a witness’s testimony and to
confirm that the potential juror’s experience in outside training—specifically, mandated
reporter training—would not result in the juror “automatically believ[ing]” the testimony.
That use of the term “victim” did not imply that defendant was guilty of any crime. The
trial court’s other use of the term “victim” in voir dire was to inquire whether a potential
juror would feel bad for and side with someone who “expressed that they were a victim
of sexual assault ….” Again, the trial court did not state that Jane Doe was a victim. It
used the term “victim” to confirm that a juror would not believe a witness merely because
they identified themself as a victim. The trial court’s use of the term “victim” was not
error.
Next, defendant argues that the prosecutor’s use of the term “victim” in referring
to Jane Doe improperly implied that defendant was guilty and compounded the trial
court’s purported error.3 The People emphasize that the trial court’s use of the term
“victim” to describe the complaining witness is meaningfully different than a
prosecutor’s use of the term to describe the complaining witness. They correctly note
that our Supreme Court drew that distinction in People v. Wolfe (1954) 42 Cal.2d 663. In
Wolfe, the prosecutor in a murder case asked the defendant, “ ‘[What] happened to your
3 In his reply, defendant asserts that his “point is not that the prosecutor’s and the
detective’s characterizations of [Jane Doe] as a victim were errors in and of themselves,
but rather that they echoed and reinforced … that the court improperly labeled” her a
victim.
7.
knife?’ ” (Id. at p. 666.) The defendant responded, “ ‘It was left in the victim’s back.’ ”
(Ibid.) The prosecutor then asked, “ ‘Did you leave it in the victim’s back?’ ” (Ibid.) On
appeal, the defendant in Wolfe relied upon Williams for the proposition that the
prosecutor’s question was misconduct because it assumed the defendant’s guilt. (Wolfe,
at p. 666.) Our Supreme Court explained that Williams was “not [o]n point” because the
term “victim” was used by the prosecutor, not the judge, “and the jury was instructed that
it was the sole judge of the value and effect of the evidence; that it could not convict a
defendant upon mere suspicion; that the prosecution was ‘bound to establish the guilt of a
defendant beyond a reasonable doubt, and unless the prosecution [did] so, … it [was the
jury’s] duty to find the defendant not guilty.’ ” (Wolfe, at p. 666.)
The prosecutor and a detective testifying in the People’s case repeatedly referred
to Jane Doe as the “victim.” Defendant acknowledges in his brief he “at some point had
molested” Jane Doe, but he argues that the question was defendant’s age at the time of
the offense since section 288.7 specified that the offense was committed only if the
defendant was 18 years of age or older at the time of commission of the offense.4
Defendant contends that there was no “victim”—because no crime was committed—if
defendant was not an adult at the time of the offenses. No authority is cited for that
proposition. Regardless, defendant has pointed us to no authority, and our own research
has revealed none, to convince us that it is error for a prosecutor to refer to the
complaining witness as the “victim.” The prosecutor is an advocate. In this case, it was
the prosecutor’s theory that Jane Doe was the victim of sexual abuse by defendant, as it
related to this criminal action, when she was between eight 5 and 12 years of age and
when defendant was between 18 and 22 years of age. In that context, referring to Jane
4 Section 288.5, on the other hand, does not require that a defendant be 18 years of
age or older at the time of commission of the offense.
5 The record included testimony that defendant’s sexual abuse of Jane Doe began
when she was five or six years of age and did not cease until she was 12 years of age.
8.
Doe as the “victim” was not error. Because we conclude that the trial court did not err,
the prosecutor’s and detective’s use of the term “victim” to refer to Jane Doe did not
compound any error by the trial court.6
II. Clerical Errors in the Abstract of Judgment
The abstract of judgment contains several clerical errors. Appellate courts have
the inherent power to correct clerical errors in the abstract of judgment. (People v. Jones
(2012) 54 Cal.4th 1, 89.) We order the following errors corrected.
The parties agree, as do we, that the abstract of judgment incorrectly characterizes
counts 1 through 3. While the abstract accurately reflects the statutes violated, it
incorrectly reflects the jury’s verdicts. The abstract reflects that defendant committed the
following crimes: on count 1, “sexual intercourse or sodomy with [a] child 10 yea[rs of
age or younger]”; and on counts 2 and 3, “oral copulation or sexual penetration of a
chi[ld 10 years of age or younger.]” (Capitalization modified.) The abstract should
reflect the defendant committed the following crimes: on count 1, sexual intercourse
with a child 10 years of age or younger; on count 2, oral copulation of a child 10 years of
age or younger; and on count 3, sexual penetration of a child 10 years of age or younger.
6 Because we conclude that use of the term “victim” resulted in no error, we are not
required to reach the People’s harmlessness argument. That said, even assuming there
was error, it would be harmless under any standard. (Chapman v. California (1967) 386
U.S. 18, 24 [beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836–
837 [reasonably probable].) We are convinced beyond a reasonable doubt the
prosecutor’s and detective’s use of the term “victim” did not affect the jury’s verdicts.
Jane Doe testified essentially that defendant sexually abused her at every opportunity
from the time she was five or six years of age to 12 years of age. Moreover, the jury was
instructed that it would decide what the facts were based on the evidence presented at
trial, defendant was presumed to be innocent, that the People were required to prove
defendant guilty beyond a reasonable doubt, that nothing the attorneys said (including
questions) was evidence, and that the jury alone must decide the credibility and
believability of witnesses. In light of Jane Doe’s testimony and the jury instructions, the
scattered references to Jane Doe as a “victim” were harmless.
9.
The parties further agree, as do we, that the abstract of judgment incorrectly
reflects the years of the offenses. Counts 1 through 3 were committed between 2009 and
2011, and count 4 was committed between 2011 and 2013, as reflected in the amended
information and found true in the jury’s verdicts.
DISPOSITION
The judgment is affirmed. The trial court is ordered to issue an amended abstract
of judgment correcting the errors identified in section II of this opinion and forward
copies to the appropriate entities.
10.