NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50042
Plaintiff-Appellee, D.C. No.
3:15-cr-0597-LAB
v.
PEDRO JAVIER ORELLANA, MEMORANDUM*
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted October 2, 2017
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE,** District Judge.
Defendant-Appellant appeals from his conviction for sexual abuse of an
incapacitated person under 18 U.S.C. § 2242(2)(A) and his sentence of 60 months
of imprisonment followed by ten years of supervised release. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
1. At trial, Lt. Carrie Bratton, a registered nurse, testified to statements made
by the complaining witness Leticia Alves during a sexual assault nurse’s
examination. Even if these statements were testimonial, Alves testified to the same
facts and was cross-examined. Lt. Bratton’s testimony therefore did not violate
Orellana’s Confrontation Clause rights. See Crawford v. Washington, 541 U.S. 36,
59 n.9 (2004). For the same reason, any error in admitting the hearsay testimony
was harmless. See United States v. Freeman, 498 F.3d 893, 905–06 (9th Cir.
2007); Guam v. Ignacio, 10 F.3d 608, 614 (9th Cir. 1993).
2. As Alves left the courtroom after testifying, she began crying loudly in the
hallway. She was taken into the bathroom, where she banged on the floor loudly
enough for several jurors to hear. The district court questioned some of the jurors
who witnessed the outburst and the jury as a whole and instructed them to ignore
the interruption. No jurors indicated that they would be unable to decide the case
on the evidence alone. Given our presumption that juries understand and follow
the instructions they are given, see United States v. Escalante, 637 F.2d 1197,
1201‒02 (9th Cir. 1980), the district court did not abuse its discretion in denying a
mistrial. See also Richardson v. Marsh, 481 U.S. 200, 211 (1987).
3. The evidence was sufficient for a rational fact-finder to conclude beyond a
reasonable doubt that the complaining witness was incapable of appraising the
nature of the sexual act. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th
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Cir. 2010) (en banc). The jury was entitled to credit Alves’s testimony that she
became conscious after Orellana had already penetrated her. See United States v.
Fasthorse, 639 F.3d 1182, 1184 (9th Cir. 2011).
4. At trial, recorded excerpts of two interviews of Orellana by government
agents were played for the jury and admitted into evidence subject to a limiting
instruction. When the jury requested the videos during deliberations, the court
decided over defense counsel’s objection to allow the jury to view the videos
unsupervised in the jury room. “The decision to send properly admitted exhibits to
the jury room during deliberations is within the discretion of the trial court.”
United States v. Chadwell, 798 F.3d 910, 914 (9th Cir. 2015). We cannot say that
the district court abused its discretion here.
5. The district court held that Sentencing Guideline § 2A3.1 applied to
Orellana, but it also calculated the sentencing range under § 2A3.4. Under either
analysis, it concluded that an outside-Guidelines sentence of 60 months was
“sufficient, but not greater than necessary, to comply with the purposes” of
sentencing. See 18 U.S.C. § 3553(a). The court did not err because it used the
sentencing range as a beginning point and explained its decision to deviate
therefrom. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
AFFIRMED.
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