People v. Hernandez

Citation178 Cal.App.4th 1510,101 Cal. Rptr. 3d 414
Decision Date09 November 2009
Docket NumberNo. H031992.,H031992.
CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JACOB TOWNLEY HERNANDEZ, Defendant and Appellant.

Marc J. Zilversmit for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ELIA, J.

After a jury trial defendant Jacob Townley Hernandez (Townley) was convicted of premeditated attempted murder, in violation of Penal Code sections 187, subdivision (a), and 664. The jury also found true the allegations that Townley had personally used a gun and had personally inflicted great bodily injury in committing the crime. (Pen. Code, § 12022.53, subd. (c); § 12022.7, subd. (a).) On appeal, he raises numerous issues bearing on his right to consult with counsel, admission of statements made by witnesses in police interviews, prosecutor misconduct, improper judicial comments, admission of gang evidence, and jury instructions. He further challenges the denial of his pretrial motion to suppress evidence obtained as a result of his detention. On July 23, 2009, this court filed an unpublished opinion affirming the judgment. On August 14, 2009, we granted Townley's petition for rehearing to give more attention to a gag order that prevented defense counsel from discussing the contents of two declarations by witnesses with Townley. Upon further review, for the reasons stated below, we will reverse the judgment.1

I. BACKGROUND

Seventeen-year-old Townley was accused by information with attempted murder, committed with three accomplices: 18-year-old Jose Ruben Rocha, 16-year-old Jesse Carranco, and 18-year-old Noe Flores. The charges arose from the shooting of Javier Zurita Lazaro around 9:00 p.m. on February 17, 2006. In a telephone call about 7:00 p.m. that night, Townley asked Flores to "do a ride." Flores drove his 1992 white Honda Accord to pick up Townley and his girlfriend, Amanda Johnston, in Santa Cruz. Once in the car, Townley showed Flores a small black handgun, which Flores handled and returned to Townley.

Townley directed Flores to drive to Watsonville, where they picked up Carranco (known as "Little Huero") and Rocha (known as "Listo"), whom Flores had not met before. Townley was wearing People's exhibit No. 23, a red and black plaid flannel jacket, which Johnston had given him as a gift. Carranco wore a red hooded sweatshirt; he had four dots tattooed on his knuckles, signifying his association with the Norteno gang. Flores wore black sweatpants, a white T-shirt, gloves, and a black zip-up hooded sweatshirt. Rocha wore a black flannel jacket with white in it.

The group then drove back to Santa Cruz, dropping Johnston off before heading downtown. They went to an apartment on Harper Street where Anthony Gonzalez lived. About 20 minutes later, the four drove toward the Ocean Terrace apartments, located at the corner of Merrill Street and 17th Avenue in an area known as Sureno gang territory. As they were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk across the street, walking back to his apartment at the Ocean Terrace complex. Lazaro, aged 29, was not associated with any gang, but the sweatshirt he wore was blue, the color associated with the Surenos. Carranco told Flores in a "[k]ind of urgent" voice to turn around and pull over, and Flores did so. Grabbing a T-ball bat that Flores kept in the front passenger area, Carranco jumped out of the car, along with Townley and Rocha. Flores waited in the driver's seat with the engine running. He heard what sounded like firecrackers; then the three others ran back to the car and Carranco told him "urgently" to go. Flores drove away rapidly with his passengers and followed Carranco's directions back to Gonzalez's apartment.

Lazaro testified that as he was walking back to his apartment he heard three or four voices from inside Flores's car, and then someone yelled, "Come here." He thought it was directed at someone else, so he continued walking without turning around. Just as he reached the parking lot of the apartment complex, he saw the group get out of the car and run across the street toward him. They asked him whether he was Norteno or Sureno. At that point Lazaro was frightened and ran, until he felt something push him to the ground. Lazaro received five gunshot wounds, including a fractured rib and a bruised lung. Two bullets remained in his body.

Lazaro did not see who shot him, but Ginger Weisel, Lazaro's neighbor, was in the parking lot when Lazaro walked away from the group. She heard them call out "fucking scrap" and ask where Lazaro was from before seeing one of them shoot Lazaro six to eight times. Lazaro fell after about four shots. Weisel recalled that the shooter was about five feet nine inches tall2 and wore a red and black plaid Pendleton shirt. Weisel called 911 from her apartment and returned to help Lazaro.

David Bacon was driving on 17th Avenue when he saw Flores's car parked in a no-parking zone. He saw what appeared to be two Latino males of high school age, about five feet 10 inches tall. Seconds later he heard snapping sounds and saw one of the group standing in a "classic shooting position," holding a gun. He heard a total of five or six shots from what appeared to be a small-caliber gun. Bacon had the impression that the shooter wore a plaid jacket, which could have been People's exhibit No. 22. The second man appeared to be a lookout. Bacon then saw two people run back to the car, which sped away. He parked his car, called 911, and returned to help Lazaro, who was lying on the ground with two women tending to him. Emergency personnel arrived within a minute after the last shot.

Susan Randolph stepped outside her home on 17th Avenue when she heard the gunshots. She described the three as young Latinos between 16 and 20 years old, ranging from five feet six inches to five feet nine inches.

Julie Dufresne was driving on 17th Avenue with Jeanne Taylor when she heard popping noises that sounded like fireworks, followed immediately by three people running across the street in front of her car. They were all about her height, five feet nine or 10 inches, or probably shorter, and they appeared to be between 15 and 20 years old. One wore a thin, red and black plaid flannel jacket.

Taylor thought there were five popping sounds, followed by the "three young men" running across the street in front of the car. One of them was less than five feet five inches and wore what looked like a plaid Pendleton shirt in black and red. He appeared to be staggering as if he were drunk or "having difficulty with his coordination." The other two were taller; one wore a white and black plaid shirt, People's exhibit No. 22, and the other a hooded sweatshirt. When they reached the white car, one went to the backseat on the driver's side, and the other two went around to the passenger side. Taylor thought that People's exhibit No. 23 looked like the red and black shirt the "shorter person" had been wearing; Dufresne "couldn't say for sure."

Randi Fritts-Nash was one of the teenagers drinking at the Harper Street apartment. Sitting in Gonzalez's bedroom with five others, she heard a car pull into the parking lot, followed by a couple of knocks at the window. Gonzalez went to the window and then left the room. Before he left, Fritts-Nash heard the anxious voices of two people outside, one of whom said the words "hit" and "scrap."

When Gonzalez reappeared, Townley and the other three were with him. Townley was wearing a red and black plaid jacket, People's exhibit No. 23. Fritts-Nash heard Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley pull a small handgun out of his pocket and wipe off the prints with a blanket. Townley moved the gun several times from one pocket to another, saying, "I need to hide this gun." He also told her he was "looking at 25 to life." Rejecting Fritts-Nash's suggested hiding place, Townley put the gun in his shoe and a small black velvet bag of bullets into his other shoe. Townley told her to cross her fingers for good luck. Fritts-Nash asked him if he had shot someone; his head movement indicated an affirmative answer.

Townley and Carranco were tried together as adults under Welfare and Institutions Code section 707, subdivision (d)(2). On January 25, 2007, the court granted Townley's motion to sever his trial from that of his codefendants. Before trial both Flores and Rocha entered into plea agreements in which the prosecution would reduce the charges in exchange for their declarations under penalty of perjury. Flores thereafter pleaded guilty to assault with a firearm subject to a three-year prison term, and the prosecutor dismissed the attempted murder charge against him. Rocha pleaded guilty to assault with force likely to produce great bodily injury, with an expected sentence of two years. On the same date that Flores and Rocha entered their pleas, April 17, 2007, the prosecution filed a motion to reconsolidate the cases against Carranco and Townley, which the court subsequently granted on April 26, 2007.

The jury found Townley guilty of attempted premeditated murder and found the People's allegations of firearm use and great bodily injury to be true. (Pen. Code, § 12022.53, subds. (b), (c), (d); § 12022.5, subd. (a); § 12022.7, subd. (a).) On September 12, 2007, he was sentenced to life in prison with the possibility of parole for the attempted murder, with a consecutive term of 25 years to life for the section 12022.53 firearm enhancement.

II. DISCUSSION
A. Issues Related to Witness Declaration
1. Restriction on Attorney-client Discussion of the Flores Declaration

The guilty pleas in Flores's and Rocha's cases were taken in closed...

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4 cases
  • People v. Carranco, H032412 (Cal. App. 2/24/2010), H032412.
    • United States
    • California Court of Appeals
    • 24 Febrero 2010
    ......         ELIA, J. . .         After trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley Hernandez ("Townley") of attempted deliberate and premeditated murder (Pen. Code, §§ 664, 187) for Townley's shooting of Javier Zurita Lazaro on February 17, ...In a published opinion filed on November 9, 2009 in Townley's appeal (H031992), this court determined that it was reversible error for the trial court to impose a gag order forbidding defense counsel from talking to their ......
  • Hernandez v. Peery
    • United States
    • United States Supreme Court
    • 28 Junio 2021
    ...in moving to withdraw the order not to discuss the contents or existence of the document with [Townley]." People v. Hernandez, 178 Cal.App.4th 1510, 101 Cal.Rptr.3d 414, 422 (2009) (officially depublished). As a result, the trial court "prohibited counsel from sharing the statemen[t] with [......
  • People v. Garcia, G041032 (Cal. App. 2/11/2010), G041032.
    • United States
    • California Court of Appeals
    • 11 Febrero 2010
    ......[Citation.]"' [Citation.]" ( People v. Hernandez (2009) 178 Cal.App.4th 1510, 1535.) .         As discussed above, the questioning of an alternative juror and two sitting jurors about ......
  • Hernandez v. Peery
    • United States
    • United States Supreme Court
    • 28 Junio 2021
    ...in moving to withdraw the order not to discuss the contents or existence of the document with [Townley]." People v. Hernandez, 101 Cal. Rptr. 3d 414, 422 (App. 2009) (officially depublished). As a result, the trial court "prohibited counsel from sharing the statemen[t] with [Townley], inves......
2 books & journal articles
  • Discovery
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • 30 Marzo 2022
    ...the accuracy of the statements, and it gave the prosecutor an advantage of surprise testimony. People v. Hernandez (2009) 178 Cal.App.4th 1510. §5:52.6 Privileges and Exemptions; In-Camera Hearing See the discussion of Susan S. v. Israels in §5:87 regarding civil liability for violation of ......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • 30 Marzo 2022
    ...v. Hernandez (2008) 45 Cal.4th 295, §7:20.17 People v. Hernandez (2009) 177 Cal.App.4th 1182, §3:22.3 People v. Hernandez (2009) 178 Cal.App.4th 1510, §5:52.5 People v. Hernandez (2010) ___ Cal.App.4th ___ (Fourth Dist. COA, Div. 2—Docket No. E047219), §3:43 People v. Herrera (2006) 136 Cal......

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