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The People v. Efrain Leon-Herrera

February 6, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EFRAIN LEON-HERRERA, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F04833)

The opinion of the court was delivered by: Raye , P. J.

P. v. Herrera

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Efrain Leon-Herrera was convicted of attempting to commit an act of sexual intercourse or sodomy of a child 10 years of age or younger (Pen. Code, §§ 664/288.7, subd. (a) -- count one; undesignated statutory references to follow are to the Penal Code), sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b) -- count three), and two counts of lewd and lascivious acts on a child under the age of 14 by force or fear (§ 288, subd. (b)(1) -- counts two & four). The trial court sentenced defendant to consecutive state prison terms of 9 years and 15 years to life.

On appeal, defendant contends his convictions for counts one and two must be reversed under the corpus delicti rule, and counsel was ineffective for failing to object to testimony regarding the victim's statements to a police officer. We affirm.

BACKGROUND

The sexual assaults

Starting in August 2009 defendant's sister, Lupita Herrera (Herrera), took care of Maria H.'s five-year-old daughter M.E. when Maria H. went to work. Herrera took care of M.E. at the home Herrera shared with her parents, defendant, and two other brothers.

On July 21, 2010, Maria H. left M.E. at the Herrera home at around 4:30 p.m. Herrera took M.E. to the park with Herrera's brothers and defendant's young daughter and son. She returned home with M.E. at around 8:00 p.m., where they watched television for 60 to 90 minutes before Herrera put M.E. to bed.

Herrera took M.E. upstairs to sleep in Herrera's room. She stayed with M.E. for about half an hour until M.E. fell asleep. Herrera then shut the door and went downstairs to cook dinner for her brother Miguel.

About 10 to 30 minutes later, Herrera went upstairs to lie down with M.E., as was her practice. When she reached the top of the stairs, Herrera heard M.E. whimpering from the bedroom. Herrera saw the shadow of a figure in the doorway of the now open bedroom door. She pushed past the figure and went into the bedroom; when she turned on the light, she saw defendant in the doorway, holding a pair of jean shorts.*fn1 [1]

M.E. was kneeling on the bed and fully dressed. She grabbed Herrera and said defendant had hit her. When Herrera asked what had happened, defendant denied hitting M.E. Defendant said he came to the bedroom after hearing M.E. calling out his children's names and telling his daughter to stop hitting her. Herrera closed the bedroom door to get defendant out of the room so that the scared and sobbing M.E would calm down.

M.E. repeatedly told Herrera that defendant had hit her. She did not cry as much after Herrera closed the door on defendant. Asked where defendant had hit her, M.E. made a spanking motion toward her buttocks. M.E. asked Herrera if defendant knew where she lived and told Herrera not to let defendant follow her mom. At some point, Herrera asked M.E., "Are you sure you weren't dreaming?"

Herrera went downstairs to tell her mother what had happened, bringing M.E. with her. M.E. had calmed down by the time Maria H. arrived 10 to 20 minutes later, but she started crying as soon as she saw her mother. ...


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