People v. Hernandez
|16 March 2016
|THE PEOPLE, Plaintiff and Respondent, v. ISRAEL HERNANDEZ, Defendant and Appellant.
|California Court of Appeals Court of Appeals
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge. Reversed in part, remanded, and otherwise affirmed as modified.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Israel Hernandez guilty of two counts of carjacking and found true gun and gang allegations. He raises numerous contentions on appeal, including that the jury was improperly instructed it could not consider evidence of his voluntary intoxication on his ability to form a specific intent to commit the carjackings to benefit his gang. Because we agree with this contention and conclude that the instructional error was prejudicial, we reverse the true finding on the gang allegation and remand for further proceedings. Except for a restitution order, which we strike, we reject Hernandez's remaining contentions and otherwise affirm the judgment as modified.
On May 29, 2012, Billy Greene was driving his FedEx delivery truck near Long Beach Boulevard. Defendant Hernandez, wearing a black jacket with a hood and carrying a black gun, got into the truck's passenger side. Hernandez said something, but Greene couldn't make out what it was. Although Hernandez has a tattoo on his face, Greene did not see it. Greene got out of his truck, which sped away, and he got into a passerby's car to follow the FedEx truck.
Erik Anguiano was driving his Mustang when the FedEx truck tried to make a U-turn in front of him. The front part of the FedEx truck hit Anguiano's car, damaging it. A Tahoe driven by Selestino Diaz then ran into the FedEx truck. Hernandez, who was wearing a cap with a "P" on it, got out of the FedEx truck. Saying " '[g]et out of here, puto,' " Hernandez pushed Diaz and drove away in Diaz's Tahoe. Hernandez made a motion that made Diaz think Hernandez had a weapon. At the intersection of Abbott and Otis, the Tahoe hit a tree. Hernandez fled on foot.
Maria Beltran lived on Otis. She heard a crash and saw a "guy" "coming from the white truck." The guy ran to the property next door to Beltran's home. When deputy sheriffs arrived at Otis, they saw a male Hispanic, who was sweating profusely and had something in his waistband, jump over a small wall. The deputies found a black gun in that area, where Beltran lived. Mercedes Estrada was also at her nearby home when she saw someone "going through the side of" her house. The police arrested defendant, who was wearing only Estrada's nephew's sweat pants.
A black Pittsburgh Pirates hat with a "P" on it was recovered from the scene. Surveillance footage of the carjacking showed Hernandez tossing a bag to the ground. The bag contained, among other things, numerous gift cards and Sarah Carretero's California Benefits Identification card.
Greene, Diaz, and Anguiano identified Hernandez at a field show up.
Hernandez was transported to the hospital. Deputy Thomas Spinks stayed with Hernandez, who was "extremely agitated and thrashing around on the gurney to the extent where he was kind of violent" and had to be restrained. Lynwood Varrio Paragons, at least five times. When Deputy Spinks asked what Hernandez was called, Hernandez replied, "Fat Boy." The deputy believed that Hernandez was under the influence of methamphetamine. Still, despite Hernandez's agitation, he spoke respectfully, clearly, and concisely to the deputy.
Hernandez tested "presumptive positive for amphetamines, methamphetamines, and canabinoids." An alcohol test indicated 210 milligrams per deciliter of alcohol in his system.
Detective Grant Roth investigated African American gangs in the City of Lynwood, although he also investigated Hispanic gangs. One such Hispanic gang was the Lynwood Varrio Paragons, whose turf is El Segundo to the south, Santa Fe to the west, the 105 Freeway to the north, and Long Beach Boulevard to the east. The gang has 80 to 90 members, and its rivals include Rude Boys, in whose territory the carjacking occurred. Hernandez is a member of the Paragons, and his moniker is Stopper, but he gives Fat Boy to police. He has tattoos associated with the Paragons, including a "hand signal . . . making out the letter P" on his face and "Lynwood" on his scalp.
Gangs in general thrive by creating an atmosphere of fear and intimidation in a community. The "crimes that [the Paragons] have been known to commit and have been documented" "range from vandalism and graffiti to narcotics possession and sales, assaults, assault and batteries, shootings, stabbings, robberies, [extortion], carjackings, attempted murders, murders."
Based on a hypothetical modeled on the facts of the case, Detective Roth opined that carjacking a FedEx truck and a Tahoe benefitted the Lynwood Varrio Paragons.
Dr. Mitchell Eisen, an expert, testified about the process of eyewitness identification.
On May 16, 2013, a jury found Hernandez guilty of count 1, carjacking Greene (Pen. Code, § 215, subd. (a))1 and of count 2, carjacking Diaz. The jury found true gang allegations (§ 186.22, subd. (b)(1)(C)) as to both counts and a gun allegation (§ 12022.53, subd. (b)) as to count 1.
On February 21, 2014, the trial court sentenced defendant, on count 1, to five years plus a consecutive 10 years for the gang enhancement plus 10 years for the gun enhancement. On count 2, the court sentenced him to a concurrent term of 15 years. At a restitution hearing on April 4, 2014, the parties stipulated to restitution in the amount of $3,000 to Anguiano.
Hernandez contends that comments the trial court made during voir dire about reasonable doubt violated his Sixth and Fourteenth Amendment rights. We disagree.
After a panel of prospective jurors was called, the trial court instructed them on, among other things, reasonable doubt:
Voir dire proceeded. During defense counsel's voir dire, this exchange occurred:
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