Opinion
E068745
04-20-2018
THE PEOPLE, Plaintiff and Respondent, v. REYNALDO ISAI HERNANDEZ-NEVAREZ, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1502133) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On September 2, 2016, a first amended information charged defendant and appellant Reynaldo Hernandez-Nevarez with sodomy or intercourse with a child 10 years of age or younger under Penal Code section 288.7, subdivision (a) (counts 1, 3); oral copulation or sexual penetration with a child 10 years of age or younger under section 288.7, subdivision (b) (counts 2, 4); aggravated sexual assault by sodomy on a child under 14 years of age under section 269, subdivision (a)(3) (counts 5, 8, 11); aggravated sexual assault on a child under 14 by oral copulation under section 269, subdivision (a)(5) (counts 6, 9, 12); and continuous sexual abuse of a child under section 288.5, subdivision (a) (count 14).
All statutory references are to the Penal Code unless otherwise specified.
On May 3, 2017, the trial court granted the prosecution's motion to dismiss count 14. --------
On May 8, 2017, trial commenced. On May 10, 2017, the court granted defendant's section 1118.1 motion as to counts 7, 10, and 13, the aggravated sexual assault by penetration counts.
On May 16, 2017, a jury found defendant guilty on counts 1 through 6. Defendant was found not guilty on counts 8, 9, 10 and 12.
On July 14, 2017, the trial court sentenced defendant to a total term of 110 years to life. In counts 1 and 3, the court imposed consecutive sentences of 25 years to life. In counts 2, 4, 5, and 6, the court imposed consecutive sentences of 15 years to life. The court awarded defendant 767 actual plus 115 credit days. On July 17, 2017, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
John Doe was born in June 2001. He lived in Ontario with his parents and his two brothers, one of which was his twin. His family met defendant at church in 2011; defendant was 18 years old at the time. Defendant taught music at the church; he was Doe's drum teacher. Defendant later became a youth group leader.
In March of 2011, defendant moved in with Doe's family. He lived with Doe's family on and off starting in March 2011 and ending in July or August of 2014; the first two years defendant was by himself but the last year he brought his family. Doe and his brothers shared one room that contained bunk beds and a single bed. Doe slept in the single bed, and when he first started living with the family, defendant slept in the bed with Doe. At night when Doe's brothers were sleeping, defendant would rub Doe's butt and reach in front and touch his penis. Doe was eight years old.
Later, defendant slept on a sofa bed in the living room. When Doe was nine years old, defendant asked him to sleep in the living room with him. Doe slept on a different couch. One night, while they were in the same room, defendant typed something on his phone, handed the phone to Doe and left the room. The text said, "Would it be okay if I sucked your dick." Doe was shocked. Defendant came back into the room and inquired, "so?" Doe did not say anything.
Almost every night after he moved to the living room, defendant would message Doe on Facebook to come to the living room. Defendant told Doe that if Doe slept with defendant, defendant would get Doe a new skateboard, drumsticks, or money. Defendant gave Doe at least $10 every time Doe would sleep with him. Defendant would tell Doe "God wanted me to give you this because you deserve it," but after Doe accepted the money defendant would tell him "you owe me."
Defendant would put his penis in Doe's anus and thrust until he ejaculated on Doe or on his legs; he never ejaculated inside Doe's anus. The first time this happened, Doe was nine years old. The last time it happened was when Doe was 11 or 12. It happened so many times that Doe lost count. At times Doe attempted to resist defendant by pushing him or moving and turning his body to get away. Defendant responded by holding Doe around his lower body with one hand, and using his other hand to maneuver his penis into Doe's anus. Doe did not resist because whenever he tried, defendant "would always win."
Defendant would put Doe's penis in his mouth. The first time this happened, Doe was nine years old. The last time it happened was when Doe was 11 or 12. It happened so many times that Doe lost count. Defendant also put his penis in Doe's mouth. Doe recalled this happened on three occasions when Doe was 10 years old. Of the three times, defendant ejaculated once into Doe's mouth. Doe would resist but defendant would grab Doe's shoulders and push him down. Defendant showed Doe pornography on defendant's phone, to demonstrate how to suck defendant's penis because Doe "wasn't good at it."
Defendant masturbated Doe by reaching under his clothes. Doe lost count of the number of time this occurred, starting when Doe was nine and ending when he was 11 years old. Doe would try to take defendant's hand out, but defendant was too strong. When Doe was 10, defendant forced Doe's hand into defendant's shorts and made Doe masturbate him. Defendant never put his finger in Doe's anus.
On different occasions when Doe was 10 and 11 years old, defendant would drive him to a dark alley, have Doe get into the back seat, and would put his penis in Doe's anus or suck Doe's penis. Afterwards, defendant would buy Doe food and take him home. Occasionally, when defendant was driving, he would reach into Doe's pants and rub Doe's penis under Doe's clothes.
Doe continued to sleep in the living room with defendant because of the things defendant would give Doe. Defendant did not threaten Doe, but once when he and Doe were on the front porch defendant pushed him onto a chair and Doe started kicking and yelling. Defendant punched him three times. Doe got up and "threw a swing" at defendant. Doe's parents came outside but Doe was scared and did not say anything.
When Doe told defendant he wanted it to stop defendant would start crying and tell Doe he would not buy Doe things, or that he would be mad at Doe. Doe was scared that if defendant got mad, he would hurt Doe. Defendant would also tell Doe that if he did not do it, God would punish Doe. Doe believed defendant and was scared. Defendant would threaten to tell Doe's parents Doe was a "bad kid" and that he was doing drugs. Doe was afraid he would get in trouble. Defendant threatened to tell Doe's male friends that Doe was gay, and Doe's female friends that Doe was "just trying to fuck them."
Doe never told anyone what was happening because he was embarrassed and afraid.
A month before defendant moved out in July or August of 2014, he put his penis in Doe's anus. That was the last time. After defendant moved out, he would continue to contact Doe or follow him around. Sometimes, Doe messaged defendant for a ride, but there was no further sexual contact.
Eventually, Doe's parents asked Doe about defendant. Doe told his parents he had a confession. Doe was not ready to tell them everything, and he did not want his father to get in trouble for doing something to defendant. That same day, Doe spoke to Officer Cholly at Doe's house, but did not tell him everything because his parents and older brother were also there. Subsequently, when he spoke with Detective Newland at the police department, Doe told him everything that happened. Detective Newland asked Doe to contact defendant through a messaging app called KIK, through which defendant and Doe had communicated previously. They sent messages back and forth in English. Detective Newland helped Doe with what to say.
Detective Newland met with Doe on June 8, 2015, at the Ontario Police Department. Doe was nervous and very soft-spoken. Doe told the detective about oral sex and anal sex that occurred when Doe was 12 and 13 years old. The last time was when Doe was 12 years old. Doe told Detective Newland that defendant would put his finger in Doe's anus, but refused to elaborate.
Detective Newland arranged a pretext conversation between defendant and Doe using Doe's phone and his "KIK" messaging app. Defendant Newland was present throughout the exchange and witnessed Doe's texts and defendant's responses. At one point, Doe asked defendant "if you really cared for me than why did you used [sic] to fuck me and shit cause now I feel stupid and confused." Defendant answered that he was sorry, that Doe should leave the past behind, get close to God and ask forgiveness, and that "everybody makes mistakes." Doe asked defendant why, if it was a mistake, did defendant continue even though Doe had asked him to stop and it made him feel "weird." Defendant apologized again and said he wished he could explain it; that that he never wished to hurt Doe.
Doe messaged that he was confused because it felt "nasty" to have anal sex but felt good when defendant sucked his penis. Defendant said he was sorry and that he would understand if Doe did not want defendant in his life. Defendant said he liked sucking Doe's penis. When Doe asked defendant what he liked about it, defendant responded that he liked everything about it. Defendant stated that he felt that he was in love with Doe but understood that Doe wanted to stop so he forced himself to stop. During this exchange, defendant communicated he liked having anal sex with Doe, and that Doe was "perfect" for him. Doe asked defendant what was the difference between having anal sex with Doe and vaginal intercourse with a girl, defendant replied "Just that you can't get pregnant."
On June 9, 2015, Detective Newland met with defendant at the police department. He found the KIK application on defendant's phone and photographed the pretext conversation. Detective Newland asked Detective Naranjo, a certified Spanish speaker, to assist with the interrogation.
During the interrogation, defendant told the officers that Doe forced defendant to touch his penis two or three times. When Doe asked him, defendant initially told Doe no because the bible says it was not right. The first time was when Doe was nine, and the last time was in 2014. Defendant just touched Doe's penis very fast for a few seconds.
When Doe was nine years old, he forced defendant to put his lips on Doe's penis two or three times for a few seconds. Defendant would tell Doe it was not right but Doe insisted. Defendant denied having anal sex with Doe. Instead, on three occasions when Doe was 12 years old, defendant's penis rubbed on Doe's leg, between the cheeks underneath his anus. Defendant's penis did not go inside and defendant did not ejaculate. At one point Doe went to see the doctor for a physical; the doctor told him his penis was not properly developed and so he needed to masturbate and ejaculate. Defendant told Doe to pull his penis to make semen come out. Defendant always prayed to God for forgiveness because Doe made him do things he never wanted to do.
When Doe was 11, he would pee in his bed and on his clothes and would be scared to tell his mother. Defendant would help Doe change his bedding. After the interview, defendant wrote an apology letter to Doe and told Doe he needed "to forgive."
Doe's father testified that when defendant first moved in with them, he would sometimes sleep in his sons' bedroom; later he slept in the living room on a fold-up bed. Doe's father noticed defendant would buy Doe video games and give him money; he would also interfere when Doe was being punished for misbehavior. This upset Doe's father.
Two or three times, Doe's father saw Doe lying on defendant's bed. When he asked defendant about it, defendant said that he was praying for Doe because Doe was afraid. Doe's father did not hear screams or unusual noises during the night.
Doe's father testified that Doe's character changed over time; he became depressed and rebellious. Doe would sometimes lie. When Doe's father asked him if something inappropriate with defendant was going on, Doe denied it.
Defendant testified at trial. He explained that he made the admissions in the interrogation to protect Doe so Doe would not get in trouble for lying. Defendant wrote the messages found in the KIK app, but explained that Doe used to joke like that and defendant was going along with the jokes. Defendant did not show Doe pornography; he testified the opposite occurred and it was Doe who would show defendant pornography. Defendant had a beautiful friendship with Doe; when he said that he loved Doe, he meant he loved him "in Christ." Defendant believed Doe's parents were jealous because their children would look to him for advice and little things, instead of the parents.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.