People v. Fernandez CA3

Filed 3/14/22 P. v. Fernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C093510

Plaintiff and Respondent, (Super. Ct. No. 19F4954 )

v.

MICHAEL ELEFANTE FERNANDEZ,

Defendant and Appellant.

Defendant Michael Elefante Fernandez appeals from a jury verdict finding him guilty of oral copulation and digital penetration with a child 10 years or younger and lewd and lascivious acts with a child under the age of 14. Defendant claims the trial court committed prejudicial error when it ruled the People could introduce his prior felony conviction under Vehicle Code section 10851 for impeachment purposes. We conclude any error was harmless. Accordingly, we affirm.

1

BACKGROUND G.F. and defendant were married in 2008 and lived together with G.F.’s children, including her 10-year-old daughter, J.L. The day after G.F. and defendant had a fight, and at the prompting of defendant’s relative, G.F. asked her children whether defendant had done anything to them. Still angry from the fight, G.F. called the Redding police and reported J.L. had said defendant had touched her vagina. G.F. later admitted J.L. had not told her defendant had touched her. Redding Police Department Corporal Christopher Mills interviewed J.L. the same day G.F. made the report. Mills testified that interviewing children is different than interviewing an adult and requires him to ask open-ended questions that avoid suggesting a response. Mills instructed J.L. to correct him if he misstated anything and to identify subjects she did not understand, such that she could be comfortable telling the truth. Mills opined it can be very difficult for children to tell male investigators about their first sexual experience, especially where it is not consensual. Mills recalled J.L. was uncomfortable answering questions about defendant’s ongoing sexual contact with her. Corporal Mills recorded the interview with J.L. and the jurors viewed the recording. J.L. indicated that something had happened between her and defendant that she did not know how to explain. As the interview progressed, J.L. explained that defendant touched her vagina multiple times, beginning when she was nine years old. J.L. used male and female diagrams to denote the anatomies involved in the allegations. J.L. described that occasionally defendant would lay on top of the blankets with no shirt on while J.L. was underneath the blankets. Defendant used his finger to touch J.L. both on top of and underneath her clothes. Corporal Mills also interviewed defendant, recorded that interview, and the jurors viewed the recorded interview. Defendant initially denied the molestation allegations or touching J.L.’s vagina. Instead, defendant claimed he and J.L. only cuddled, wrestled, or tickled in such a way that might result in incidental contact with J.L.’s vagina.