The People v. Fernandez
157 Cal. Rptr. 3d 43
Cal. Ct. App.2013Background
- Information charged five counts of child molestation against Jorge Ramirez Fernandez involving two granddaughters, with a multi-victim enhancement under §667.61(b).
- Trial/Procedural posture: 10-day jury trial (April 12–25, 2011); after the prosecution rested, the court dismissed count 1 and amended the time frames for counts 2–5 to conform to proof.
- Jury convicted on all remaining counts and found the multi-victim enhancement true; Fernandez obtained new counsel and unsuccessfully sought a new trial; sentenced to 45 years to life.
- Jane Doe No. 1 testified to repeated acts starting in prekindergarten; Jane Doe No. 2 testified to acts beginning in 2008–2009; the defense contended no molestation occurred.
- Appellant challenged (1) prosecutorial amendments to the information, (2) jury instructions CALCRIM 3501/3500, (3) CALCRIM 330 credibility instruction, (4) prosecutorial misconduct, and (5) ineffective assistance of counsel; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amendment of information during trial | People argues amendment valid; no prejudice | Fernandez contends due process denied; lacked notice | Amendment forfeited; no due process violation |
| Unanimity instruction CALCRIM 3501 vs 3500 | People used 3501 to handle multiple acts | Fernandez argues error | CALCRIM 3501 proper; no reversible error |
| Credibility instruction CALCRIM 330 for a child witness | Bias or credibility considerations appropriate | Instruction improper to limit credibility evaluation | CALCRIM 330 legally proper; no reversible error (forfeiture noted) |
| Prosecutorial misconduct | Prosecutor’s closing arguments permissible characterization | Arguments inflated prejudice | No reversible misconduct; if any, harmless error |
| Ineffective assistance of counsel (Stoll expert) | Argues failure to call Stoll expert prejudiced defense | No reasonable probability of different outcome; likely tactical choice | No ineffective assistance; no prejudicial impact |
Key Cases Cited
- People v. Jones, 51 Cal.3d 294 (1990) (due process notice; trial amendments permissible with prejudice analysis)
- People v. Graff, 170 Cal.App.4th 345 (2009) (amendments to conform to proof; standard for prejudice)
- People v. McCoy, 133 Cal.App.4th 974 (2005) (child witness credibility instructions; balancing factors)
- People v. Virgil, 51 Cal.4th 1210 (2011) (forfeiture and scope of improper arguments)