People v. Herrera CA1/3

Filed 9/29/14 P. v. Herrera CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A140458 v. MICHAEL ANTHONY HERRERA, (Alameda County Super. Ct. No. CH53143) Defendant and Appellant.

Defendant Michael Anthony Herrera appeals the judgment imposed after a jury returned a guilty verdict on one count of forcible rape in violation of Penal Code section 261, subdivision (a)(2). Defendant raises a single issue on appeal: the trial court denied his federal constitutional right to be present at all critical stages of the trial by allowing testimony to be read back to the jury without defendant or his counsel present. We affirm the judgment for the reasons set forth below.

FACTUAL AND PROCEDURAL BACKGROUND On the night of July 2, 2010, LH was living in a field on Dixon Street in Hayward, California. She was homeless and had been camped with her boyfriend near a hollowed out tree for about six months. On July 2nd, LH’s boyfriend was in the hospital so she was sleeping alone. After drinking alcohol, LH went to sleep around 9:30 p.m. and awoke to see defendant standing in front of the tree. LH testified that she had never met defendant before and she was scared. She said “who’s there?’ and defendant responded by placing his hand on his crotch and saying “something that you want.” Defendant got on top of LH, held her down and put one hand over her mouth. Defendant then removed

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LH’s pants and forcibly had intercourse with her. After he ejaculated, defendant pulled up his pants and left in the direction of the BART station. LH ran to the home of her friend and told her she had been raped and the friend called the police. Officer Robert Martinez was dispatched to the scene and conducted an investigation. Officer Martinez took a statement from LH and then took her to Highland Hospital. Kristin Mancuso, a physician’s assistant in the emergency room at Highland Hospital, examined LH on the night of the assault. Mancuso conducted a sexual assault exam and collected a DNA sample from her vaginal area. The sample was analyzed by Christine Lee, a criminalist at the Alameda County Sheriff’s Crime Lab. She entered the DNA profile into the Combined DNA Index System (CODIS). Lily Zimmerman, acting supervising criminalist for Alameda County Sheriff’s Crime Lab, compared the DNA sample to a sample from defendant. She found that on the sixteen points of DNA comparison, the samples were the same and that the odds of finding them the same were 1 in 383 sextillion in Caucasians and 1 in 2.021 septillion in Southwest Hispanics. The jury began deliberations on the afternoon of September 23, 2013. On the second day of deliberations, the jury requested a readback of the testimony of three witnesses: LH, Officer Martinez, and Ms. Mancuso. The jury requested the readback of the “whole” transcript for both LH and Officer Martinez and the whole transcript, “minus qualification as [an] expert” for Ms. Mancuso. After the lunch recess, before the jury was brought into the courtroom, the court explained to counsel that it had reviewed People v. McCoy (2005) 133 Cal.App.4th 974 and stated that “based on the McCoy case, I don’t believe there is any violation of the defendant’s rights in not having the defendant or his attorney present during read back.” The court then asked defense counsel if he would like to make a record on the issue. Defense counsel stated that he believed the readback would be conducted in the courtroom where he and his client would be present. He stated he would like the opportunity to review the McCoy case, and then stated “I would also object to not being