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People v. Hernandez CA4/2 (2025) · DecisionDepot
/ California Court of Appeal People v. Hernandez CA4/2 Unpublished Filed 12/23/25 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E085731
v. (Super.Ct.No. SWF2400673)
ELVIS FRANKAVILA HERNANDEZ, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge.
Affirmed.
Laura Vavakin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Elvis Frankavila Hernandez of oral copulation of an unconscious
person (Pen Code, § 287, subd. (f); unlabeled statutory citations are to this code), and the
trial court sentenced him to six years in state prison. Hernandez appealed, and we
1
appointed counsel to represent him. Counsel filed an opening brief that raised no issues
and requested an independent review of the record under People v. Wende (1979) 25
Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. We affirm.
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BACKGROUND
In May 2024, the People filed an information alleging that Hernandez committed
oral copulation of an unconscious person in violation of subdivision (f) of section 287.
The People further alleged that the victim was particularly vulnerable within the meaning
of California Rules of Court, rule 4.421(a)(3).
At trial, the victim testified that she began dating Hernandez in 2019, and she
began dating J.R. in early “2020 or maybe [the] end of 2019,” while she was still seeing
Hernandez. Neither Hernandez nor J.R. knew that she was dating both of them.
On April 10, 2020, the victim drove to Hernandez’s house with her 18-month-old
son, and they went with Hernandez to his brother and sister-in-law’s home, where the
adults played games and drank alcohol. The victim had two drinks, and she felt
At about 12:00 a.m., the victim fell asleep on the living room couch with her son
sleeping on her chest. At “1:00 or 2:00 in the morning,” she woke up to something “hot”
on her face, and her eyes were burning. The victim saw Hernandez standing over her
“with his penis in his hands.” She thought that he had ejaculated onto her face. She
wiped her face with her jacket, “jump[ed] up,” and asked what he was doing to her. He
told her that she had “asked for it, that he could do what he wanted to [her] and that this
is what [she] wanted. He said that he had gone through [her] phone and he saw what a
little slut [she] was so he wanted to do that to [her] because it’s what [she] wanted.” She
was “angry,” “shocked,” “hurt,” “embarrassed,” and “humiliated.” She “was scared
[be]cause [she] thought he was [going to] do something further to hurt [her].” She
“would never give him permission to do that to [her].”
The victim ran to Hernandez’s brother’s room and knocked on the door to try to
get someone to help her, but no one came out. She then went “back into the living
room,” “called an Uber,” and “eventually was able to make it back to [her] car.” She
drove to her sister’s house, and when she woke up, she took a shower and cried. Her
sister checked on her and asked her what happened. The victim told her, and her sister
“urged [her] to call the police.”
Later that morning, the victim received text messages from J.R. J.R. was angry,
and he told her that “he had received some messages from [her] phone, that [she]
apparently texted him in the middle of the night, pictures of [her] with [a] penis in [her]
mouth. And he asked [her] what was going on with those.” She said that she “didn’t
know what he was talking about.” Then she “confessed to him that, yes, [she] had been
at a party with someone the night before but that [she] wasn’t—[she] didn’t do anything
like that.” J.R. then sent her the pictures that he had received. She checked the deleted
messages on her phone and found that several photos and a video had been sent to J.R.
One of the pictures showed the victim’s face, Hernandez’s penis, and her son’s arm across
her face. Another picture showed Hernandez’s penis in her mouth and her “son’s arm at
the bottom of [her] chin.” A third picture showed the victim’s face, her son’s arm across
her chest, and Hernandez’s hand “holding his penis above [her] face. And you can see
ejaculate on [her] face here.”
Later that evening, the victim called law enforcement. She told a sheriff’s deputy
what happened, and the deputy asked if she would call Hernandez. She agreed, and she
asked Hernandez “why he did that to [her].” Hernandez said that he did not know what
At the sheriff’s station, the victim agreed to undergo a sexual assault exam. The
exam included taking swabs of “[her] face, [her] hair, and [her] mouth, and [her] genital
A week later, the victim “noticed that [her] banking app was gone off [her]
phone.” She “re-downloaded” the app, and she discovered that she “was missing a lot of
money from [her] account.” She “saw two transactions from Zelle for $700 and $400”
sent to Hernandez on April 11, 2020. She had not given Hernandez permission to make
The victim also testified that in January or February 2020, she spent the night at
Hernandez’s home, and she woke up to find him having sex with her. She pretended to
be asleep, and she did not confront him about it. She testified that she did not consent to
having sex with him, and she did not tell anyone about the incident.
Riverside County Sheriff’s Deputy Ivan Sanchez testified that he contacted
Hernandez and asked about the victim, and Hernandez said that they had a “bad
breakup.” Sanchez asked about the transactions from the victim’s phone, and Hernandez
said that he had “no comment.” About one and one-half weeks later, Sanchez contacted
Hernandez again. Sanchez said that Hernandez was “uncooperative.”
Sanchez testified that “there [was] a delay in this case based on something
happening elsewhere,” and “[t]hat took priority.” After this case “[came] back to” him in
2023, he obtained and executed a warrant for a sample of Hernandez’s DNA.
San Bernardino County Sheriff’s Department criminalist Jennifer Steele tested
Hernandez’s DNA and compared it to the samples from the victim’s sexual assault exam.
She testified that the swab from the right side of the victim’s face was positive for semen
from a single source. Steele further testified that the “sperm fraction” identified on the
victim’s face was “at least 49 septillion times more likely if Elvis Hernandez [was] the
contributor than if an unrelated, unknown individual [was] the contributor.” Steele
acknowledged that there could have been other ways that Hernandez’s DNA could have
transferred to the victim’s face.
The defense called only one witness, a woman who has been Hernandez’s friend
for over 20 years. She testified that about six years earlier, she drank too much alcohol
while she was with Hernandez, and she “tried to push through something with him. But
he was just, like, no, no, no, no, no, it’s okay, we[’re] only friends, and that was it.” She
also testified that on other occasions when she was intoxicated around Hernandez, he was
“very respectful,” and he never tried to do anything to her. She was never uncomfortable
around Hernandez. She admitted that she did not know what Hernandez was charged
with, and she does not approve of “sexual offense[s] against a sleeping woman.”
Defense counsel argued that there were “lot of holes in that little tale she told [the
jury] because they are false because that is not what really happened.” Counsel further
argued that law enforcement conducted “a half-assed investigation” and that there was
“plenty of doubt” in this case.
The jury found Hernandez guilty of oral copulation of an unconscious person.
(§ 287, subd. (f).) The court found that the alleged aggravating factor was not true. The
court sentenced Hernandez to the middle term of six years in state prison, and it awarded
him 46 days of actual custody credit and 46 days of conduct credit for a total of 92 days
of presentence custody credit.
DISCUSSION Hernandez’s appellate counsel filed a Wende brief identifying two potentially
arguable issues: (1) “[w]hether the court prejudicially erred by not allowing the details of
[the victim’s] relationship with James, including details in text messages [Hernandez]
may have found in [the victim’s] phone”; and (2) “[w]hether the prosecutor improperly
vouched for the law enforcement during closing, prejudicing [Hernandez].” Counsel
asked that we conduct an independent review of the record. We advised Hernandez that
he had 30 days to file a personal supplemental brief, and we received no response.
We have independently reviewed the record and found no arguable error that
would result in a disposition more favorable to Hernandez. (Wende, supra, 25 Cal.3d at
pp. 441-442.) Accordingly, we affirm the judgment.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
CODRINGTON J.