Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC935846.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. introduction
Defendant Wilmer Antonio Hernandez was found guilty after a court trial of oral copulation on a child 10 years of age or younger. (Pen. Code, § 288.7, subd. (b).) He was sentenced to prison for 15 years to life.
Unspecified section references are to the Penal Code.
On appeal, defendant contends there was a failure of proof, in that the only evidence of the corpus delicti of oral copulation was his admission to the police that he kissed the victim’s vagina. For the reasons stated below, we will affirm the judgment.
Section 288a, subdivision (a) defines oral copulation as “the act of copulating the mouth of one person with the sexual organ or anus of another person.”
2. the trial
The evidence at trial in December 2009 consisted of testimony by the victim, by defendant, and by the San Jose Police detective who interviewed both of them in Spanish, Leticia Horta. Also in evidence were an audio recording of Horta’s interview with the victim, a video recording of Horta’s interview with defendant and a translated transcript of that interview.
While a translated transcript of the victim’s interview was not admitted into evidence, prior to making its findings the court indicated that it had read the transcript without objection, as has this court.
When interviewed by Detective Horta, defendant stated that he picked up the victim after school one day at the request of her mother, who was the sister-in-law of defendant’s then-girlfriend, Claudia. Defendant brought the victim to the apartment that he shared with Claudia, which was across the hall from where the victim lived. Defendant initially denied that he had done anything to the victim. He then said that she approached him in the living room, kissed him on the cheek, and hugged him. He told her not to, because he could go to jail for that. He eventually said that he kissed her, while telling her “no.” He denied removing her clothes. He said she removed her shirt. When confronted by an assertion that his saliva was found on her, he admitted kissing her belly button, her leg, her vagina, and her breasts. Defendant was embarrassed because it was not right. He initially denied touching her vagina with his hands. Then he admitted touching where he kissed her. He thought she was 11 years old at the time. He said it all took about 15 minutes. He told her that if she told her mother, she would be disbelieved and punished.
Defendant’s opening brief mistakenly describes the victim as Claudia’s daughter, not her niece.
At trial defendant maintained that the victim kissed him and he kissed her back. He denied that anything else sexual happened. At the time of the incident in 2007, defendant was 25 years old. He said he was nervous and did not feel well when Detective Horta interviewed him in 2009, and, after she repeatedly accused him of lying, he just told her what he thought she wanted to hear so that she would leave him alone.
At trial the victim testified that she was born in July 1997. One day in 2007 defendant picked her up from school and told her to go into the bedroom. She initially testified that he touched her breasts and her vagina through her clothes for about 30 minutes. She told him to stop but he continued. He tied her hands, but she could not remember how. He tried to lift her shirt, but she prevented him. She did not recall him touching her with his mouth.
After reviewing a police report, she testified that he kissed her neck and her breasts through her clothes and put his hand inside her underwear and touched her vagina, though he did not put anything inside of it. He did not touch her vagina with his lips. The incident ended when her mother called and she went to meet her in the parking lot. Defendant told her not to tell her mother or her mother would go to jail.
The victim said she was trying to forget the incident as it was an unpleasant memory. What happened was hard to talk about in front of strangers. During her police interview in March 2009, the victim said that she did not remember well.
In finding defendant guilty, the trial court found the People’s witnesses credible and defendant’s trial testimony not credible, specifically finding “his interview statements to be more persuasive with respect to what occurred.” The court also found no coercion in the detective’s interrogation of defendant. Regarding the victim’s testimony, the court noted that although she “certainly did not testify to all of the specifics of the alleged conduct as alleged in Count 1, the Court certainly understands the fact that she clearly didn’t want to be here, that she was uncomfortable discussing anything at all with respect to the incident here in open court, that there had been some passage of time since the event took place, almost – well, more than two years. And that, given her young age at the time of... her testimony, her reluctance is certainly understandable.”
3. evidence of the corpus delicti
Defendant asserts on appeal that “[t]he policy reasons underlying the corpus delicti rule militate against sustaining a conviction for conduct the victim said never occurred.”
In People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez), the Supreme Court summarized the general principles underlying the corpus delicti rule. “In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] Though mandated by no statute, and never deemed a constitutional guaranty [sic], the rule requiring some independent proof of the corpus delicti has roots in the common law.... [¶] Virtually all American jurisdictions have some form of rule against convictions for criminal conduct not proven except by the uncorroborated extrajudicial statements of the accused. [Citations; fn. omitted.] This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. ([People v. ]Ochoa [(1998)] 19 Cal.4th 353, 405 [(Ochoa)]; People v. Jones [(1998)] 17 Cal.4th 279, 301; [People v. ]Jennings [(1991)] 53 Cal.3d 334, 368 [(Jennings)].)”
The Alvarez court went on to explain that “[t]he independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. (Jennings, supra, 53 Cal.3d 334, 364; People v. Ruiz (1988) 44 Cal.3d 589, 610-611; [People v. ]Towler [(1982)] 31 Cal.3d 105, 117.) There is no requirement of independent evidence ‘of every physical act constituting an element of an offense, ’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. (People v. Jones, supra, 17 Cal.4th 279, 303.) In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues.” (Alvarez, supra, 27 Cal.4th 1161, 1171.)
Both appellant and respondent cite Jones, supra, 17 Cal.4th 269, 279, for support. In Jones, the Supreme Court considered whether forcible oral copulation had been sufficiently shown apart from the defendant’s confession. The victim, Haro, was found on a dirt roadway median. She had been shot in the head and was alive when found, but died shortly thereafter without describing what had happened. There were bruises on her thighs, knees, legs, and perineal area, as well as injuries on her hands. Semen was present in Haro’s vagina, on her external genitalia, and in her rectal area, but not in her mouth. An expert testified that those results were not inconsistent with oral copulation because of the mouth’s natural rinsing processes. Haro was also found without underpants, a bra, or shoes, although evidence showed she customarily wore those items. (Id. at p. 302.) The Supreme Court determined that the circumstantial evidence of multiple forcible sex acts satisfied the requisite prima facie showing, rejecting a contention that oral copulation was not established without the presence of semen in the victim’s mouth. (Ibid.)
Jones found support in prior decisions. In Jennings, supra, 53 Cal.3d 334, the Supreme Court found that the trial court properly admitted evidence of the defendant’s extrajudicial statement that he had raped the victim before killing her. There, the unclothed condition of the victim’s decomposed body, its location in a rural irrigation canal, and evidence of a broken jaw, considered together, were sufficient to establish the corpus delicti of rape, despite the absence of independent evidence of sexual penetration. (Id. at p. 369.)
In People v. Robbins (1988) 45 Cal.3d 867, 885-886 (Robbins), the skeletal remains of a six-year-old boy were found three months after his disappearance. The victim’s neck had been broken and his body was found unclothed. Although it could not be determined from the decomposed remains whether a sexual assault had occurred, the defendant, who had been diagnosed as a pedophile, made an extrajudicial admission that he sexually assaulted the victim before strangling him. The Supreme Court concluded that the trial court properly admitted this confession over a corpus delicti objection. (Jones, supra, 17 Cal.4th at pp. 302-303.)
“As Jennings and Robbins demonstrate, we have never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved.” (Id. at p. 303.)
The Supreme Court reached a similar conclusion in Ochoa, supra, 19 Cal.4th 353, finding sufficient independent evidence of the crime of rape where the victim died of multiple stab wounds, her body was found on the grounds of a school, and her pants were on backward and her sweatshirt was inside out. (Id. at pp. 386, 389, 406.)
In Jones, there was physical evidence of some type of sex crime. In Jennings, Robbins, and Ochoa, the disarray or absence of the victim’s clothing was the only physical evidence that something sexual may have preceded the victim’s death.
Defendant suggests that the Supreme Court relaxed the corpus delicti rule in those homicide cases because the alleged sex crimes were impossible to verify by physical evidence or victim testimony. In contrast, in this case the victim was alive and did testify, and she denied that defendant orally copulated her. Defendant’s position appears to be that there must be either physical evidence (as in Jones) or a live witness’s description of the charged crime to corroborate an out of court confession.
We recognize in this case that there was no physical evidence of oral copulation or any other sex crime presented at trial. However, in her testimony, the victim described defendant touching and kissing her breasts through her clothes. She testified that he touched her vagina through her clothes and that he touched her vagina by putting his hand inside her underwear. She also stated that it was difficult to talk about in front of strangers.
While the victim denied that defendant touched her vagina with his lips, it was for the trier of fact to assess the weight and credibility of that testimony. (People v. Hughes (1960) 183 Cal.App.2d 107, 113.) The trial judge found it understandable that a young victim who was uncomfortable discussing anything sexual in open court would be reluctant to describe the full extent of defendant’s conduct. From what the victim did describe in court, there is no doubt that defendant committed a sex crime on her. The trial court was justified in using defendant’s confession to determine the nature of that crime. Although defendant’s words alone established crucial elements of the charged offense, we conclude there was sufficient independent proof that a sex crime occurred for the trial court to rely on defendant’s statements without infringing on the protections afforded by the corpus delicti rule.
4. Disposition
The judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J., IHARA, J.