People v. Fernandez

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ARCADO FERNANDEZ, Defendant and Appellant.

B254191

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

March 18, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA123646)

APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Reversed in part and remanded for resentencing; otherwise affirmed.

Thomas T. Ono, 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, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant and appellant Matthew Arcado Fernandez guilty of first degree murder and found true personal gun use and gang allegations. On appeal, defendant contends that his pre-arrest detention violated the Fourth Amendment to the United States Constitution; that the trial court improperly excluded evidence relevant to self-defense; and that his 50-years-to-life sentence constitutes cruel and unusual punishment because he was a juvenile when he committed the crime. We agree that remand is necessary so the trial court can reconsider defendant's sentence under the Eighth Amendment, but we reject defendant's remaining contentions.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.¹

A. June 15, 2012: the murder of Benjamin Juarez.

On June 15, 2012, defendant shot and killed Benjamin Juarez. Juarez was found on the ground in an alley near a white car having no license plate. No weapons were in the car or on Juarez. Anthony Leon was with Juarez, but Leon did not witness the shooting. Juarez had four gunshot wounds. Blood and casings indicated that Juarez was shot while inside the car.

On the evening Juarez was killed, Lorena Toro was at home on South Washington Avenue in Compton. Hermenegildo Rojas lived across the street from Toro, and Toro knew Rojas, as well as defendant, Joseph Hodge, and Rigoberto Haro. Toro heard five gunshots sometime before 8:00 p.m. Looking outside, Toro saw defendant and Haro running to Rojas's house at 15521 South Washington Avenue. Rojas was walking behind defendant and Haro. Hodge was at Rojas's gate. Haro said, " 'We got him. We got him.' " Although Toro did not see a weapon, Haro "had something" "like holding down."

Around this time, Deputy Miguel Fuentes responded to a call of an "assault with a deadly weapon, gunshot victim at the scene." After being directed to the 15500 block of South White Avenue (the area behind Rojas's house), a woman made eye contact with the deputy and pointed west. Based on information the woman gave the deputy, he looked for three male Hispanics. The deputy then saw three male Hispanics—defendant, Haro, and Hodge—arguing with a woman. She appeared to be telling the men to leave her property. The men, however, turned toward the rear of the property, and then defendant and Haro sat on a bench in front of the house. The deputy detained the men.

Although no weapons were found on any of the men, including defendant, the gun used to kill Juarez was recovered from Rojas's backyard.

B. Defendant's and codefendants' statements.

After they were arrested, defendant and his codefendants were in a patrol car, where their conversations were surreptitiously recorded. They made numerous incriminating statements about, for example, hiding the gun and defendant shooting Juarez. Hodge told Haro, for example, that "I think [defendant] Spooky shot in the head[,] dawg. . . . First shots were like in the head, pow, pow."

Defendant admitted he was the shooter:

"That nigga from CG that nigga was tatted fool on his hand like in his face, on top of his eyebrows he has 'Chicano Ganga.' That's why when I pulled up, fool I looked and I'm like he looked like a rocker fool and I was like, hey fool, 'Where you from?' He's like, 'What?' And that fool tried to get off the car and fuck you nigga." "I just started poppin' that nigga and I don't—and I ran dude fuck that."

"Yeah. The fuckin' driver got off. I guess he went to the house. When I looked I'm like what the fuck and he kept lookin' back fool like that. That's when I pulled up on him and with my hoodie on, I was like, 'Where you from?' And then he goes like, he looked at me like dogging me fool and I looked at his eyes like, 'Chicano ganga,' and I was like, that fool tried to get off the car, maybe try to face me, 'What?' And I was like hey nigga. Fuck you!"

"Hey, I think I shot that nigga in the nuts fool." "I, I only aimed for his dome fool like, when I saw him turn around this way, I just started shooting him like (inaudible). I know I shot him right here. I know I got him right here (inaudible)." "I don't know if he was dead (inaudible) four shots from up close."

C. Gang evidence.

Detective Joseph Sumner of the Los Angeles County Sheriff's Department testified as a percipient witness (he assisted in arresting defendant, Hodge, Haro, and Rojas) and as a gang expert for the People. Compton Varrio Setentas (CV-70) is a Hispanic gang in Compton, and its members include defendant (Spooky), Haro (Indio), Hodge (Beast), and Rojas (Rage).² Rojas's house on South Washington Avenue is a CV-70 hangout. CV-70 claims the area Juarez was killed in. Juarez (Whisper) was an active member of Chicano Gang, a rival of CV-70. The territories claimed by the two gangs overlap.

Based on a hypothetical modeled on the facts of the case, it was the detective's opinion that the crime was committed for the benefit of, in association with, or at the direction of a criminal street gang.

D. Defense case.

Between 4:00 p.m. and 5:00 p.m. on the day Juarez was murdered, three men went to Rojas's house and argued with Rojas. The men left but said they would be back.

Defendant testified that, on June 15, 2012, he received a phone call telling him to watch out for rivals in the area. Defendant went to Rojas's house, where he learned that three gang members had told Rojas there would be consequences if Rojas left the house. While at Rojas's house, defendant saw a white car with no license plate go by three times. People inside the car threw gang signs.

Defendant waited for the car to leave before leaving Rojas's house with Haro and Hodge. While on their way to a friend's house, they took a shortcut through an alley, trying to avoid the people in the car. Defendant, however, was startled by a voice callingfrom a parked car, " 'Fuck the ho's,' " which was a disrespectful way to refer to CV-70.³ Defendant, who could see "CVCG" tattooed on Juarez's face, asked Juarez where he was from. Juarez said, " 'What?' " With one hand Juarez tried to open the car door, and he held a gun in the other. Defendant's friend said, " 'gun.' " Scared he would be shot, defendant, who had been shot the year before, pulled out his gun and pulled the trigger.⁴

Defendant had never "run into" Juarez before, but he knew of him, specifically, that his moniker was Whisper and that Juarez "[p]retty much got out of prison, was trying to make his presence into the neighborhood again." Juarez was known to be a "[v]iolent guy."

II. Procedural background.

Defendant, Haro, Hodge, and Rojas were jointly tried by one jury. On September 16, 2013, the jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a))⁵ and found true personal gun use (§ 12022.53, subd. (d)) and gang (§ 186.22, subd. (b)(1)(C)) allegations. The jury hung as to Haro, Hodge, and Rojas, and the trial court declared a mistrial as to them.

On February 5, 2014, after denying defendant's request to have a "full-blown" sentencing hearing under the Eighth Amendment, the trial court sentenced defendant to 50 years to life (25 years to life for the murder plus 25 years to life for the gun enhancement). The court also sentenced defendant to a concurrent 15 years to life for the gang enhancement.

DISCUSSION

I. The motion to suppress.

Before trial, defendant moved to suppress evidence,⁶ under section 1538.5, on the ground his detention violated the Fourth Amendment.⁷ We find that the trial court properly denied the suppression motion.

A. Testimony at the suppression hearing.

Deputy Fuentes testified at the suppression hearing in conformity with his later trial testimony. On June 15, 2012, at approximately 7:52 p.m., the deputy, who was in a marked police car and wearing a uniform, responded to a call of assault with a deadly weapon and a gunshot victim. "It might have been broadcasted" that the suspects were multiple male Hispanics. The deputy was initially directed to South Washington Avenue and East Myrrh Avenue, but he was redirected to the 15500 block of South White Avenue, which was behind 15521 South Washington Avenue, a location of interest. Within five to six minutes of the dispatch call, a woman on the street told the deputy that three male Hispanics ran " 'that way,' " toward South Butler Avenue.⁸

The deputy proceeded to South Butler Avenue, where he saw three male Hispanics (defendant, Hodge, and Haro) standing near the rear of a house, arguing with a Black woman. The woman was "agitated," and she asked the men to leave her property. She aggressively pointed to the street. The men "appeared to be nervous. They couldn't stand still." Defendant and Haro sat on a bench to give, thought the deputy, the appearance they were visitors.

Deputy Fuentes got out of his patrol car, and the woman continued to direct the men to the street. It appeared to the deputy that the men did not want to walk towardhim. Defendant and Haro walked toward the deputy, but Hodge...