People v. Hernandez

200 Cal.App.4th 1000 (2011)

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Nature of the Case

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Facts

A.B. spent the night at her godmother's who was having a birthday. Her cousin, D was present. By around midnight, most of the guests were gone, but A.B., Alejandra, and D were still playing video games and drinking beer. During the evening, A.B. told Alejandra that she did not want to be left alone with D. Alejandra told A.B. and D that they should both stay the night because they had been drinking. A.B. changed into pajama bottoms and a T-shirt and went into the bedroom to sleep. D stayed in the living room, on the couch. Alejandra got into bed with A.B. A.B. woke up about 4:00 a.m. and went to the bathroom. She noticed that her vagina was wet, she was not wearing her underwear and her pajama bottoms were on inside out. D was sleeping on the living room couch. A.B. woke him up and asked if he had done anything to her. D denied doing anything. A.B. called her brother, Ivan, to pick her up. Once at home, A.B. called her best friend, D's sister Linda. She told Linda that she thought D raped her. A.B. went to the hospital with her mother, Ivan, and Linda where she was given a sexual assault examination. A.B. had lacerations on the entrance of her vagina that were consistent with blunt penetrating trauma and were more severe than she would expect to see with consensual sex. DNA tests confirmed that saliva found on A.B.'s neck and sperm found on her external and internal genitalia were D's. When questioned by police, D said he got up in the night to use the bathroom and walked past A.B.'s bed. He stated, the two started kissing and eventually had sex. The story changed to A.B. was asleep when he first started kissing her and when he removed her pants, but that she lifted her legs behind his head once he started having sex with her. It later evolved that A.B. was “knocked out” or “out cold” the entire time and that she did not give him permission to have sex with her. At trial, D testified that the sex was consensual. He told the jury that he had been confused by the police officer's questions because he does not speak English very well. A.B. testified she was out cold and never consented to any sex. D was convicted and appealed.