P. v. Herring 4/27/05 CA1/5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A104624

Case Date: 07/27/2005

Preview:Filed 4/27/05 P. v. Herring CA1/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. DALE LEE HERRING, Defendant and Appellant. (Sonoma County Super. Ct. No. SCR31472) A104624

Dale Lee Herring (Herring) appeals from a judgment of conviction and sentence entered after a jury found him guilty of rape, attempted forcible sodomy, assault by means of force likely to produce great bodily injury, and false imprisonment. He contends: (1) hearsay statements were admitted into evidence in violation of his Sixth Amendment rights under Crawford v. Washington (2004) 124 S.Ct. 1354 (Crawford); (2) the prosecutor committed prejudicial misconduct in closing argument; and (3) the imposition of an upper term of sentence and consecutive terms violated the Sixth Amendment under Blakely v. Washington (2004) 124 S.Ct. 2531 (Blakely ). We agree that the admission of certain hearsay statements of the victim violated Herring's Sixth Amendment right to confront and cross-examine adverse witnesses. Because this constitutional violation was not harmless beyond a reasonable doubt, we reverse the judgment.

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I. FACTS AND PROCEDURAL HISTORY After complaining of a sexual assault and beating at the hands of her boyfriend Herring, victim Kim was found dead in her bathtub.1 Herring was charged with rape (Pen. Code,

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