People v. Hernandez CA2/6

Filed 2/26/13 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B238998 (Super. Ct. No. GA082218) Plaintiff and Respondent, (Los Angeles County) v. JOSE FEDERICO HERNANDEZ, Defendant and Appellant.

Jose Federico Hernandez appeals his conviction by jury for four counts 1 of lewd conduct on a child under the age of 14 (Pen. Code §288, subd. (a)) with multiple victim enhancements (§667.61, subds. (a), (d) & (e)) and three counts of lewd act on a 14 or 15 year-old child 10 years younger than appellant (§ 288, subd. (c)(1)). The trial court sentenced appellant to 45 years to life state prison. Appellant contends that he was denied a fair trial because defense counsel was not permitted to cross- examine a victim about what she told her psychotherapist. We affirm. (Evid. Code §§ 352, 1012, 1014.) Facts and Procedural History On January 10, 2011, the Pasadena Police Department investigated a report that appellant had molested his stepdaughters, M. and T. M. told the police that, in 2005 when she was 10 years old, appellant called her into his bedroom, sat her on 1 All statutory references are to the Penal Code unless otherwise stated.

his lap, and put his hand down her pants. Appellant inserted his finger into M.'s vagina and moved it around. Exposing himself, appellant grabbed M. and tried to get her to touch his penis. In 2006, appellant dropped M.'s mother off at work, stopped the car, and tried to put his hand down M.'s pants. Appellant asked if she "wanted to touch his cock" and tried to get M. to touch his penis. M. ran into the house crying and asked her sisters what "cock" meant. Sometime between 2007 and December 2010, M. told her mother about the molestation and pled with mother not to do anything because appellant had threatened to call immigration. In January 2001, mother told a school counselor that M. had been molested. T., an older sister, was molested in 2000 at age 11. Appellant drove T. home from her father's funeral, stopped the car, kissed her and put his tongue inside her mouth. After the children moved to appellant's house, appellant pulled T.'s pajamas down and digitally penetrated her vagina, moving his finger up and down. T. was too scared to scream and heeded appellant's warning not to say anything. Appellant continued to molest T. two or three times a week between the ages of 13 and 15. T.'s and M's cousin, F., testified that appellant put his arm around her, touched her thigh, and tugged on her underwear. F was 11 years old. F. tried to get away but appellant wrapped his arms around her, kissed her three or four times, and said "You're so beautiful. I bet a lot of boys like you." Appellant pressed his erect penis against F.'s stomach and kissed her neck and lip. F. was hysterical, called her mother, and reported the incident to the police on July 30, 2009. Impeachment Evidence Appellant contends that the trial court erred in not permitting counsel to question M. about what was said or not said in psychotherapy. On cross-examination,