People v. Hernandez

• Decision Date: 13 October 2020
• Docket Number: E070630
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. NOEL HERNANDEZ et al., Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. NOEL HERNANDEZ et al., Defendant and Appellant.

E070630

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

October 13, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. INF1402996)

OPINION

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed with directions.

Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant Noel Hernandez.

Particia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Carlos J. Martinez.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael R. Johnson and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendants Noel Hernandez and Carlos Martinez were convicted by a jury of second degree murder in the death of Fabian Martinez. In addition, the jury found Hernandez had personally discharged a firearm within the meaning of Penal Code,¹ section 12022.53, subdivision (d), and that Martinez personally used a deadly weapon (screwdriver), within the meaning of section 12022.5, subdivision (b)(1). Martinez was also convicted of a second count, assault with a deadly weapon (§ 245, subd. (a)(1)), and was found to have suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior conviction under the Three Strikes Law (§ 667, subds. (c), (e)(1)). Hernandez was sentenced to prison for 40 years to life, while Martinez received a sentence of 36 years to life. Both defendants appeal.

On appeal, Hernandez claims (1) the court erred in refusing to instruct the jury on the lesser offense of involuntary manslaughter, and (2) his sentence should be remanded to allow the court to exercise its discretion to strike or modify the section 12022.53, subdivision (d) enhancement. Martinez argues (1) the court misinstructed the jury in defining malice; (2) his conviction for murder is precluded by the recent amendment to section 188 pursuant to Senate Bill No. 1437 (Senate Bill 1437), relating to the abrogation of the natural and probable consequences theory; (3) the court abused its discretion in denying his motion to strike his prior Strike conviction; (4) his sentencemust be remanded to give the trial court an opportunity to strike his prior serious felony conviction (§ 667, subd. (a)) pursuant to the amendment to section 1385 under Senate Bill No. 1393 (Senate Bill 1393); and (5) he is entitled to a youthful offender hearing.² We affirm with directions.

BACKGROUND

Defendants Noel Hernandez and Carlos Martinez were longtime friends. Liliana A. (Lily) is the older sister of Hernandez. Lily and her brother were very close and even shared a room in their parents' home. Lily also had a close relationship with Carlos,³ whom she thought of as a brother.

Prior to October 26, 2014, Lily had been in an on-again-off-again relationship with Fabian. A year earlier, the two had gotten into an argument while driving in Fabian's car and he had left her off at the side of a road in an area of the desert. Fabian would not answer his phone, so Lily called his grandparents and asked them to pick her up. She walked toward a gas station where she encountered two homeless men, one of whom brutally raped her. After the incident, Fabian's grandparents came and picked her up. As a result of the brutal attack, Lily was bedridden for two weeks. Noel knew about the rape. After the rape incident, Lily and Fabian resumed their on-again-off-againrelationship. However, Jose Benevides, Fabian's grandfather, had not seen Lily in eight months and Fabian had told him he did not want to see Lily anymore.

On October 26, 2014, Lily was hung over from drinking the night before and needed a ride to her job. Her brother Noel was unavailable because he was working with their father, who had a landscaping business, so Carlos came to pick her up. As they were on their way to her place of employment, Lily decided she did not feel like working because of her hangover. She and Carlos bought some beer and went to a park to drink it.

At the park, she and Carlos discussed their respective relationship problems. Lily believed Fabian was cheating on her, but she wanted to see him. She sent Fabian a text message and he told her to come over, but she had to wait until he got home from working. Carlos took Lily home, by which time it was already dark, and then returned to pick her up with Noel in the car, to take her to Fabian's house. On the way to Fabian's house, they bought more beer.

At about 9:30 p.m., they arrived and parked in front of Fabian's house, at which time Lily noticed that Concepcion Fernandez, also called "Poncho," was parked behind them. The plan was for Noel and Carlos to drop Lily off and leave. Poncho was a neighbor of Lily and Noel's who also worked for their father's landscaping business. Lily got out of the car and went up to knock on Fabian's door. Fabian eventually came outside and had a conversation with Lily in front of the house. Fabian and Lily walked to where Carlos was looking at his car, which appeared to have damage from hitting something. Fabian asked what happened and after the men shook hands, Fabian and Lilywalked away to talk. Lily told Fabian she had not gone to work. Fabian told Lily he would be right back. When Lily asked if they were going inside his house, Fabian told her "Fuck no."

Lily became upset and got back into Carlos's car, waiting for Fabian to come over. Lily was sad and her eyes were welling with tears as she sat in the back seat. Noel came over and asked her what was wrong, but Lily told him everything was okay, so he went back over to Poncho's truck.

A short time later, Fabian came back out of the house and Lily walked toward him. Fabian asked Lily how much she had been drinking and why she couldn't remember if they had crashed. Lily admitted she had been "drinking a lot." Carlos approached Fabian and told Fabian, "We're going to leave, dog." Carlos held out his hand as if to shake hands and Fabian extended his hand. Carlos grabbed Fabian's hand and pulled Fabian into the street. Fabian fell to his knees and Carlos started kneeing him. Noel ran up.

Lily tried to pull Carlos away from Fabian, telling Carlos to leave Fabian alone, but Noel got Fabian in a headlock. While Noel had Fabian in the headlock, Lily saw that Carlos had something shiny and pointed that he held up to Fabian's neck. Carlos and Noel asked Fabian what Fabian had done to Lily, but Fabian denied doing anything to her. Lily told Carlos and Noel to let Fabian go, because he had not done anything.

During this assault, Fabian never hit back; he just tried to get away. At one point they did lose control of Fabian, but Noel got him back in a headlock. Carlos still had theshiny object pointed at Fabian's neck, and Carlos and Noel kept asking Fabian what he had done to Lily. Then Noel switched hands so he was holding Fabian in the headlock with his left hand instead of his right hand. They continued to struggle for a few seconds until Lily noticed that Noel had pulled out something black from his waistband and pointed it at Fabian's head.

While Lily was trying to get Carlos off of Fabian, Carlos elbowed her, causing her to fall backwards. When she tried to get up, she heard a clicking sound, that sounded like racking a gun, a sound with which she was familiar. A few seconds later, as she was still getting up, she heard a gunshot. Carlos and Noel immediately ran to Carlos's car, and Poncho left in his truck. Lily screamed for help as Fabian had been shot in the head. Noel led her to the car and the three of them drove off. A neighbor, hearing Lily's scream and the sound of a car "peeling out," went out to find Fabian in the middle of the street and called for paramedics.

The defendants and Lily drove until they reached the Spotlight 29 Casino where the car broke down. They emptied the car, including the box of Modelo beer they had bought before going to Fabian's house. They started to walk through the desert along the freeway as Noel tried to get rid of something that was wrapped in a white shirt near some bushes that bordered the freeway. When he returned from the area of the bushes, the three of them proceeded to walk through the desert wash area.

Along the way, they talked about what had happened to Fabian and Carlos told Lily not to say anything to the police. Carlos told her to tell the police that he and Noelhad just dropped her off at Fabian's and did not return and that she had walked home, leaving Fabian alive when she left. They ended up on Indio Boulevard. Carlos called his mother to get a ride home, while Noel and Lily took a cab to get home.

The Riverside County Sheriff's Department responded to the dispatch regarding the shooting. At the scene of the shooting, deputies found a cold unopened bottle of Modelo beer, a small caliber casing near Fabian's head, and a broken brick.⁴ In addition to interviewing witnesses, including Fabian's grandfather who informed the officers of Lily's visit earlier, the officers requested helicopter assistance to see if the suspect vehicle was parked at Lily's house. Later, they interviewed Lily, learned that Noel was involved, and arranged for his transport. They also contacted Carlos later that morning, after contacting his mother at work, and transported him to the station.

A sergeant with the sheriff's department obtained information about Carlos's vehicle from Carlos's father and obtained the license number of the vehicle, for which a records check was conducted. They learned that the...