People v. Hernandez CA6

Filed 8/7/24 P. v. Hernandez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050269 (San Benito County Plaintiff and Respondent, Super. Ct. No. CR-19-00487)

v.

SERGIO URIEL HERNANDEZ,

Defendant and Appellant.

Sergio Uriel Hernandez was convicted of forcible sodomy of a minor. He challenges this conviction, arguing that he believed the minor had consented and, even if this belief was mistaken, it precluded conviction because the prosecution failed to present substantial evidence that his belief was either insincere or unreasonable. For the reasons explained below, we conclude that the minor’s testimony provided sufficient evidence that Hernandez’s belief was unreasonable. We therefore uphold the conviction. I. BACKGROUND A. Procedural History Hernandez was charged with sodomy by force on a minor over 14 years of age in violation of Penal Code section 286, subdivision (c)(2)(C), as well as two counts of oral copulation of a person under 16 years of age (Pen. Code § 287, subd. (b)(2)), three counts of lewd acts on a child (id., § 288, subd. (c)(1)), and one count of forcible oral copulation

with a minor over 14 years of age (id., § 287, subd (c)(2)(C)). Four of these counts were dismissed, leaving only the forcible sodomy and two lewd act counts for trial. Hernandez waived his right to a jury trial. After conducting a bench trial, the trial court acquitted Hernandez of one of the lewd acts counts but convicted him of sodomy and the other lewd acts count. Hernandez was sentenced to nine years for sodomy and two years, to be served concurrently, for lewd acts. B. Evidence Presented at Trial At trial, the prosecution’s primary witness was the victim, I.D. (The victim’s initials are used, consistent with rule 8.90(b)(4) of the California Rules of Court, to protect his privacy.) I.D. testified that his mother was a social event photographer, and at such events she sometimes used I.D. as her assistant and Hernandez as her videographer. Hernandez was on good terms with I.D.’s parents, and after several events, he accompanied I.D. home to socialize with them, sometimes staying the night and sleeping on the living room couch before leaving in the morning. I.D. testified that he engaged in consensual sexual relations with Hernandez. The first incident occurred in the summer of 2016 when I.D. was 14 years old. While Hernandez drove I.D. home from a social event, I.D. asked Hernandez, whom I.D. knew was gay, about his sexuality. Their conversation eventually touched on the subject of oral sex, which Hernandez offered to perform on I.D. I.D. consented, and Hernandez pulled onto the side of the road. Later, I.D. consented to additional sexual relations with Hernandez, including performing oral and anal sex on Hernandez. In November 2017, the incident at issue in the sodomy charge occurred. I.D. testified that, following a social event, Hernandez again came to I.D.’s home to socialize with his parents. After I.D.’s parents went to bed, Hernandez came to I.D.’s room and offered to perform oral sex on I.D. I.D. initially told Hernandez that he was not interested, but eventually relented and accompanied Hernandez to the laundry room, where Hernandez performed oral sex on I.D. 2