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Name: People v. Harless
Case #: H026885
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/20/2004
Subsequent History: Rev. gr. 3/23/05: S131011

Admission of a crime victim’s prior testimonial statements did not violate the defendant’s confrontation rights where the witness was available and testified at trial, even though by the time of trial she did not remember the events that were the subject of the out-of-court statements. Memory loss does not necessarily render a witness unavailable. Further, the court did not err in including “hardship” in the instructions under Penal Code section 288, subdivision (b), and the evidence of duress was sufficient to support defendant’s convictions under that section where the evidence showed that he had told the victim she would be sent to foster care if she told anyone about their sexual activity. The court also held that defendant was properly sentenced to five consecutive life terms under section 667.61, subdivision (e)(5), rejecting defendant’s argument that imposing separate consecutive terms for all five counts was improper because there were only two victims. Finally, the court held that Blakely did not preclude imposition of the upper term on one count because one of the aggravating factors relied upon by the trial court – that defendant was convicted of multiple crimes for which consecutive terms could have been imposed – did not require a jury finding.