People v. Hernandez

• Decision Date: 16 March 2016
• Docket Number: B255400
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ISRAEL HERNANDEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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

B255400

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

March 16, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA123386)

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.

____________________

INTRODUCTION

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.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The carjackings.

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. "He was convulting (sic) his body, kind of - he was talking to the people through the hallway. He would blurt out a local street gang," 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.

B. Gang evidence.

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. "[P]articular to the gang Lynwood Varrio Paragons, carjacking a FedEx truck, a shipment truck, a package truck, something like that, carjacking it and stealing it provides an opportunity for the gang and its members to essentially sell the potential merchandise that's within it. [¶] The actual carjacking itself helps establish that atmosphere of fear and intimidation within the community that this gang is bold; it will commit an act of violence such as a carjacking in an area not controlled by that gang in broad daylight. [¶] And it also boosts the individual's status within the gang, because gang members are expected to, one, either put in work, which is committing violent types of crime within the community; or, two, make a profit for the gang. In this type of crime, that individual accomplishes both of those expectations. [¶] He shows his willingness to commit a violent crime, carjacking, [in] broad daylight. He has very distinct tattoos on his person which identify him as a gang member. And the people that live in the City of Lynwood or someone who lives in the City of Lynwood could make the assumption that that P hand sign tattooed on his face would be associated with that gang, the Paragons gang."

C. The defense case.

Dr. Mitchell Eisen, an expert, testified about the process of eyewitness identification.

II. Procedural background.

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.

DISCUSSION

I. The trial court's comments on reasonable doubt did not violate Hernandez's due process rights.

Hernandez contends that comments the trial court made during voir dire about reasonable doubt violated his Sixth and Fourteenth Amendment rights. We disagree.

A. Additional background.

After a panel of prospective jurors was called, the trial court instructed them on, among other things, reasonable doubt: "The prosecution in a criminal case has the burden of proof beyond a reasonable doubt. I will define that burden now and in my closing instructions. [¶] A reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."

Voir dire proceeded. During defense counsel's voir dire, this exchange occurred:

"[Defense counsel]: 99 men go in, and they just take over a village. They start fires, they - everything. And all 99 men have the same clothes on, are about the same stature, everything, but what we do know is there was 99 of them. [¶] The police follow these 99 men back to the village, and when they - to their village, and when they get to their village, they do a head count, and there is 100 people, all dressed the same, all fit the description of the 99 suspects, and that's all the information that you have. [¶] Prospective juror number 14, what happens to those hundred men that are arrested? [¶]

"Prospective juror number 14: They get tried.

"[Defense counsel]: Okay. And how would you - based on that evidence, how would you vote?

"Prospective juror number 14: I'm not sure.

"[Defense counsel]: Prospective juror number 13?

"Prospective juror number 13: I would have to see all of the evidence. I couldn't say that they were guilty just because they were with the police.

"[Defense counsel]: Right. And the theory behind this hypothetical is you know that there were 99 suspects, but you arrested 100 people. So any...