People v. Hernandez CA2/6

Filed 4/21/16 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261357 (Super. Ct. No. 2013039580) Plaintiff and Respondent, (Ventura County)

v.

FRANCISCO ROMERO HERNANDEZ,

Defendant and Appellant.

Francisco Romero Hernandez appeals from the judgment entered after a jury convicted him of two counts of forcible lewd act upon a child under the age of 14 years (counts 1 and 4 - Pen. Code, § 288, subd. (b)(1));1 two counts of sexual penetration of a child 10 years of age or younger (counts 2 and 5 - § 288.7, subd. (b)); and two counts of sodomy with a child 10 years of age or younger (counts 3 and 6 - § 288.7, subd. (a)). Appellant was sentenced to prison for an aggregate term of 70 years to life: the upper term of 10 years on count 1, a consecutive full upper term of 10 years on count 4, and two consecutive indeterminate terms of 25 years to life on counts 3 and 6. On each of counts 2 and 5, appellant was sentenced to a concurrent term of 15 years to life. Appellant contends that section 654 prohibits punishment for the lewd act offenses in counts 1 and 4 because these offenses are based on the same sex acts

1 All statutory references are to the Penal Code unless otherwise stated.

underlying the offenses in the other counts. Appellant also contends that his 70-year-to- life sentence constitutes cruel and/or unusual punishment in violation of the United States and California constitutions. We affirm. Facts Alma B. started dating appellant in 2008. In 2012 appellant moved into her apartment. He lived there with Alma B. and her daughter, L.D. During summer vacation in 2013 when L.D. was eight years old, appellant pulled her pants down and put his penis into her anus. She told him to stop because it hurt. Appellant "just started humping [her]." Appellant "kept on touching [her] stomach and pinching it." He was "grabbing [her] very, very hard" and "pulled [her] close to him." Appellant put his finger inside her vagina. On Thanksgiving Day in November 2013, appellant's son and his girlfriend, Gabby, moved into Alma B.'s apartment. During the night of December 18, 2013, Gabby gave birth to a child. Alma B. spent the night with Gabby. After Alma B. had left to go to the hospital, appellant pulled down L.D.'s pants and twice put his penis into her anus. He did it "hard." He also penetrated her anus with his finger. He "kept on touching [her] boob." He pinched and punched it. When L.D. went to the bathroom, she started bleeding "[f]rom the butt." There were additional incidents of sexual contact between appellant and L.D.. From the summer of 2013 through the end of the year, appellant sodomized L.D. "[m]ore than five times." Appellant threatened to hit her if she told her mother about what he was doing. On December 29, 2013, Regina D'Aquilla, a sexual-assault nurse examiner, examined L.D.. She saw lacerations in the vaginal area and above her anus. Her "buttocks area" was "surround[ed]" by blood. L.D. told D'Aquilla that "she had been bleeding on and off since this had happened to her."