People v. Hernandez

• Court: California Court of Appeals
• Writing for the Court: REARDON, J.
• Decision Date: 28 October 2014
• Docket Number: A138001,A135426
• Citation: People v. Hernandez, A135426, A138001 (Cal. App. Oct 28, 2014)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO HERNANDEZ, Defendant and Appellant. In re FRANCISCO HERNANDEZ On Habeas Corpus

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO HERNANDEZ, Defendant and Appellant.

In re FRANCISCO HERNANDEZ On Habeas Corpus

A135426

A138001

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

October 28, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. C161685)

A jury convicted Francisco Hernandez of murder (Pen. Code,¹ § 187, subd. (a)), willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). The jury also found that defendant personally and intentionally used and discharged a firearm causing great bodily injury (§§ 12022.5, subd. (a); 12022.7, subd. (a); 12022.53, subds. (b), (c) & (d), and that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to 75 years to life in state prison. In his appeal and in his concomitantly filed petition for writ of habeas corpus,² defendant raises numerousclaims of reversible error, including: 1) evidentiary error; 2) instructional error; 3) prosecutorial misconduct; 4) due process violation in failing to have an impartial jury; 5) cumulative error; and 6) ineffective assistance of counsel. We affirm.

I. EVIDENCE AT TRIAL

A. Prosecution's Case

1. Murder of Marco Casillas and Attempted Murder of Janett Mendoza

Around 10:30 p.m. on September 19, 2008, 20-year-old Janett Mendoza and her fiancée Marco Casillas, also 20 years old, went out to walk Mendoza's dog. Neither Mendoza nor Casillas had any gang affiliations. However, Casillas, who loved hats, was wearing a red Phillies baseball cap. To defendant, an avowed Sureño gang member, affiliated with the South Side Locos (SSL) subset, anyone wearing the color red was considered an enemy.

Mendoza saw a white car parked at the corner and she heard "huffing and puffing." She asked Casillas if someone was being chased. Casillas partially turned around and told her, "Baby, the guy behind us has a big gun." Mendoza then heard gun shots. As she turned around, she came face to face with defendant, who was wearing a black hoodie and jeans. Defendant had a "big gun" in his hands, which Mendoza noted had "wood" in it. Mendoza's focus was on defendant's face, which she could see clearly. Nothing obstructed her view of defendant. She was approximately 16 feet from defendant when she first turned around and saw him with the gun. Though it was nighttime, the area was illuminated by the streetlights, a house light, and by the gun fire itself.

Mendoza kept her eyes on defendant as he was shooting the gun at Casillas. She looked directly at this face for approximately 20 seconds. During this time, she had a "good view" of defendant and could clearly see his face. Mendoza testified that seeing defendant's face for those 20 seconds, left a "lasting impression" on her. Mendoza "vividly" recalled defendant's face. She described him as a male Latino, chubby build, between 5'6" and 5'8", with a closely tapered hairstyle, and a thin line of facial hair fromhis lip to his chin. What stood out the most for her were defendant's "eyebrows and his eyes."

After shooting Casillas, defendant turned the gun on Mendoza. Mendoza testified that even after being shot and falling to the ground, she still had a clear view of defendant's face. Mendoza was "100 percent sure" that defendant was the person who shot her and Casillas.

Mendoza was hospitalized for months, underwent more than five surgeries, and was not released until just before Thanksgiving of 2008. Most of what she remembers about her time in the hospital was being in pain and "pretty out of it," from the medication. She had no recollection of speaking with Sergeant James Rullamas while she was in the hospital. She was not given any information about the case and was not shown any photographs until after she was released from the hospital.

2. Police Investigation and Photo Identification of Defendant

Sergeant James Rullamas was assigned to investigate the shootings. He had been with the Oakland Police Department since 1992 and had been a homicide inspector since 2001, investigating between 150 and 175 homicides at the time of the charged crimes. Casillas was pronounced dead shortly after 11 p.m. on the night of the incident.

Two days after the shootings, it was still unclear whether Mendoza would survive. Sergeant Rullamas went to the hospital to see her but was unable to get any statement. He went back several days later, but Mendoza was too heavily medicated and he abandoned any attempt to get a statement. At this visit, Mendoza said the shooter had an "average build."

Sergeant Rullamas began to receive word about the shootings several days later. On September 24, he received an anonymous tip that "Bandit" was the shooter, and that the shooting was gang-related. That same day, Sergeant Rullamas spoke with Mendoza's mother, Sandra Reyes, who stated that a man may have been following her, and that he was holding what appeared to be a rifle. Sergeant Rullamas put together a photo lineupand Reyes identified defendant's cousin, Manuel Hernandez.³ Manuel's street name was "Bandit."

Sergeant Rullamas requested that officers find Bandit and arrest him for weapons possession. Later that evening, police located Bandit during a traffic stop. The driver of the car was Fernando Ulloa. Bandit and defendant were passengers.

Following the automobile stop, all three occupants, including defendant, were brought to the station for interviews. Defendant was wearing a black hoodie and had a thin line of facial hair from his lip to his chin. Defendant had a blue bandana and several gang-related writings in his possession at the time of the traffic stop. The writings were copied and the property was returned to defendant following his interview.

In the early morning hours of September 25, homicide investigator George Phillips learned that defendant was in an interview room at the station. Officer Phillips was investigating "an incident and hoped [defendant] could provide some information." Defendant was not under arrest at the time he met with Officer Phillips. The interview was recorded and a portion of it was played for the jury.

During the interview, defendant said that he was known as "Zapper," and admitted that he was a current member of SSL and had been with SSL for about six years. Defendant said that he had gone to Lazear elementary school, and that he went to a continuation high school because he got into too many fights. Bandit was his cousin.

On September 26, Sergeant Rullamas received an e-mail from Mendoza's cousin, Elizabeth Torres, with photographs and links to defendant's MySpace page. The links showed numerous gang writings and showed defendant holding a revolver to his head with the caption, "We are at war now."

On October 6, Victor Ayala, a former SSL member, called the Oakland Police Department, advising them that he had discovered a rifle in a garbage can outside of his apartment. The responding officer conducted a probationary search of Ayala'sapartment,⁴ which revealed ammunition for a .38 caliber handgun and an assault rifle in the closet. An additional .38 caliber handgun was found in Ayala's car. Ayala was arrested. The assault rifle obtained from Ayala was later determined to be the weapon used in the shootings that killed Casillas and severely wounded Mendoza.

On December 1, Sergeant Rullamas interviewed Mendoza at the police station, where she provided a very detailed description of the shooter, stating that he was a 19 to 22 year old Latino male, chubby or even very heavyset (250 pounds plus), 5' 8", with a round face and a thin strip of hair down his chin. Sergeant Rullamas was aware that this fit the description of defendant, aka Zapper. Unlike her time in the hospital, Mendoza was now coherent and articulate. She was absolutely certain she could identify the shooter.

With the assistance of a computer matching program, Sergeant Rullamas prepared a photo lineup that included defendant's picture. He selected photographs to ensure that defendant was not the youngest, not the oldest, not the heaviest, nor the lightest. All of the potential suspects had facial hair, but Sergeant Rullamas admitted that matching the thin strip down the chin was difficult.

Mendoza, after receiving the standard admonition regarding photo lineups, identified defendant's photograph right away. She selected defendant's photo within seconds and was very emotional. Prior to this time, she had never been shown any photographs of defendant.

Thereafter, Sergeant Rullamas obtained a warrant for defendant's arrest and to search various social networking sites he frequented. Defendant's MySpace page had significant gang-related language, it appeared that the page had been cleaned. The page listed defendant's occupation as "Busta killa homie." Sergeant Rullamas obtained the MySpace photos which contained numerous references to Zapper and to SSL. A subsequent search of defendant's residence contained more of the same, as did the phone he was carrying at the time of his arrest.

3. Gang Evidence

Defendant is a self-admitted Sureño member within its sub-sect, SSL. He was housed in the Sureño unit of the Santa Rita County Jail upon his arrest. He had numerous gang tattoos and even had his eyebrows trimmed and shaved to resemble SSL.

Gang expert Douglass Keely testified that defendant was a "shotcaller"—a high ranking and experienced member—of SSL. After giving general information about local Oakland gangs and the rivalry between the Sureños, Norteños and Border Brothers, Keely described how SSL is the main crew of the Sureños...