People v. Hernandez

Decision Date04 November 1976
Citation133 Cal.Rptr. 745,63 Cal.App.3d 393
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jose Martinez HERNANDEZ, Defendant and Appellant. 5 Crim. 2605.
Michael R. Berger, Berkeley, for defendant-appellant
OPINION

GOLDSTEIN, * Associate Justice.

FACTS

On August 3, 1975, Susan B., the victim herein, accompanied her boyfriend, Robert Souza, from Ceres in Stanislaus County, to Fresno. They had made a prior arrangement to meet two mutual friends, Richard and Sharron Kelly, husband and wife, at a motel. All four of them had come to Fresno with the intention of obtaining and using heroin.

Susan and her boyfriend arrived in Fresno at about 3:30 p.m. The Kellys arrived at about 4:15 p.m. They immediately went to the room which had been previously rented by Susan and her boyfriend.

Souza procured several balloons of heroin with funds furnished by himself and Richard Kelly. Susan and Souza were the first to inject the heroin. Later, the Kellys did likewise. The injections did not give them the euphoric feeling which they expected would follow the injection of heroin.

At approximately 8:30 p.m., Souza and Kelly got into a heated argument. Kelly accused Souza of 'ripping him off' by buying a substitute rather than real heroin. He also accused Souza of stealing $20 of his money which was missing from the motel room. Kelly later ordered Souza to leave the room.

Souza left and remained outside the room for approximately a half hour. He then entered the car which he had used to bring Susan to Fresno and drove off. Susan waited approximately 45 minutes, until about 9:45 p.m., for him to return. She then realized that Souza had left for good leaving her without return transportation. She asked the Kellys to drive her to the on-ramp at Highway 99 and Fresno Street so that she might 'thumb a ride' back to Ceres.

After several futile attempts to obtain a ride, she decided to use the small change in her purse to telephone her sister in Ceres and ask her to take her back to Ceres. As she was walking toward a telephone booth near the highway, an Opel automobile owned and operated by appellant Jose Martinez Hernandez (hereinafter referred to as defendant) stopped near her. There were five individuals, including the driver, in the car, all of whom appeared to her to be younger than herself. She asked where they were going. They explained that they were on their way to Madera. She then told them that she was on her way to Ceres, but would appreciate a ride with them as far as Madera. Because of the crowded condition of the small car she was told that it would be necessary for her to sit on the lap of one of the occupants of the back seat. After expressing her willingness so to do, she got into the vehicle.

All of the occupants of the car lived in the Madera area. The driver, defendant, was 25 years of age, married and the father of two infant girls. Alongside of him in the front seat was his brother-in-law, Ernest Ruiz, age 17 years. In the back seat were three other juveniles, Zero Salinas, age 16 years, Gustavo Hill, age 17 years, and Fernando Ceranza, age 17 years. She sat on Ceranza's lap from the time they left Fresno.

While they were driving toward the Madera County line, the juveniles engaged her in a conversation. She learned that they had been to a dance in Fresno, had thereafter gone to a bar from which they had been ejected, and had finally gone to the west side of Fresno where they drove around looking at the street prostitutes. Susan then asked them what a prostitute charged for her services, and if they had found a prostitute. They then explained to her that they had run out of money and had, therefore, been unable to engage a prostitute. Thereafter, there was testimony that one of the juveniles produced a marijuana cigarette, lit it and passed it around among all the passengers in the car, including Susan, and that each of them took a 'drag' on the cigarette.

Thereafter, the four juveniles in the car engaged in a conversation in Spanish, a language which Susan did not understand. Zero Salinas (who testified at the trial under a grant of immunity), one of the occupants of the car, testified that in the conversation they discussed whether they should try to have sexual intercourse with Susan. All of them agreed to find out if Susan would 'go all the way' for them.

When they reached the Herndon Avenue exit of Highway 99, a short distance south of the Madera County line, defendant drove his car off the highway. Susan then became aware of the intent of the occupants of the car to have sexual intercourse with her. She asked them to let her out of the car so that she might go to a truck stop in the vicinity. Defendant refused to let her out of the car. He drove the car back onto Highway 99 in a northerly direction, crossing the San Joaquin Bridge into Madera County.

Susan attempted to climb over the front seat and grab the steering wheel to honk the horn. Ceranza and Hill forcibly restrained her from so doing. She screamed to be let out without avail. When the car reached Avenue 7 (approximately a quarter mile north of the Madera County line), defendant drove the car off the highway onto Avenue 7 a short distance, stopping near an orchard. There were no lights, houses or pedestrians in the vicinity.

After defendant stopped the car, he asked Susan if she would be willing to engage in sexual intercourse and she replied that she did not wish to do so and that she was 'not that way.' Defendant then got out of the vehicle, walked around to the right side of the car and told everyone to get out. All of the occupants complied with the exception of Ceranza, on whose lap Susan was sitting. Susan then tried to remain in the vehicle. Ceranza pushed her toward the door, Hill then grabbed her by the arm and pulled her out of the car. She was then forced to go into the orchard. At one point, when she saw the lights of a car approaching, she tried to escape by climbing back into the car and locking herself inside; but before she was able to do so, she was pulled away from the car, all the while screaming to be left alone. When they let go of her she again tried to run away but was caught and pulled back toward the orchard. One of them put his hands over her mouth to prevent her screams from being heard.

Defendant then told her that she would get hurt if she did not submit. She was then pulled back into the orchard. Defendant attempted to remove her clothing. When she protested, she was again told that she would be hurt if she did not consent to have intercourse with the five young men. She partially disrobed and at defendant's command lay down on her back on the ground on some pieces of cloth placed there by her captors.

Defendant was the first to have intercourse with her, followed by Ernest Ruiz, Fernando Ceranza and Gustavo Hill. Zero Salinas attempted intercourse but was unable to complete the act.

Thereafter Susan cleaned herself up, dressed and asked to be taken back to the highway. On the way to the highway, Susan sat in the front seat with Ernest Ruiz and defendant. When they reached Cleveland Avenue near the City of Madera offramp, defendant drove off Highway 99 at the off-ramp and let Susan out of the car. Defendant then drove off toward the City of Madera. As they left, Susan removed a piece of paper from her purse and wrote down the license number of defendant's vehicle. She put the paper in her pocket. Someone in the car observed what she was doing and called it to the attention of defendant. Defendant then realized that if the license number of his car was disclosed to the authorities, his identity would be discovered. He immediately backed his car toward Susan who was then walking along the highway. Defendant and his companions mistakenly believed that she had placed the piece of paper with the license number in her purse. Several of the juveniles, together with defendant, jumped out of the car in pursuit of Susan. Hill caught up with her, pushed her to the ground and seized her purse. He ran back to the car with the purse. Defendant and the other occupants of the car rummaged through the purse but failed to find the paper. They then hung the purse on a road sign and again pursued Susan. Susan, who had crossed the highway and was proceeding to a service station for assistance, was finally caught by Ernest Ruiz. He demanded the piece of paper. She took the paper with the license number out of her pocket and gave it to defendant. Then defendant and the other juveniles returned to the car and drove off.

Susan finally reached the service station. The attendant on duty summoned the police. Meanwhile, defendant had dropped off his passengers, three of whom went to a local bar and pool hall. Defendant returned to his home. While at the pool hall, Hill told Salinas that he had heard some money jingling in Susan's purse. Hill and Salinas, accompanied by a third person, returned to the highway, removed the purse from the road sign on which it had been hung and extracted approximately 60 cents from it. Although defendant did not participate in the theft of the money from the purse, he was charged with the offenses of forcible rape, simple kidnapping and robbery in the second degree resulting from the forcible seizure of the purse by him and the other juveniles from the person of Susan B. He was convicted of all three offenses. The court, in pronouncing judgment, ordered that he be sentenced to state prison only for the crime of forcible rape. It stayed the execution of the judgment on defendant's convictions of kidnapping and robbery, pending the completion by him of the sentence on the rape charge or a reversal of the conviction on the...

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    • California Supreme Court
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    ...which he testified occurred, or (3) that his mental faculties were impaired by the use of such narcotics." (People v. Hernandez (1976) 63 Cal.App.3d 393, 405, 133 Cal. Rptr. 745.) Here, defense counsel's question was phrased in the past tense and referred to some unspecified time. It was, t......
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