People v. Hernandez

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

B322539

California Court of Appeals, Second District, Seventh Division

January 25, 2023

NOT TO BE PUBLISHED

Order Filed Date: 2/6/23

APPEAL from a judgment of the Superior Court of Santa Clara County Nos. B1689200, C1886706, Griffin Bonini, Judge. Affirmed in part, reversed in part and remanded.

Stephen B. Bedrick, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, and David H. Rose, Deputy Attorney General for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on January 25, 2023 be modified as follows:

On page 6, the last sentence beginning with "Defense counsel argued" is deleted and replaced with the following sentence:

Other witnesses testified the two vehicles had not been alongside each other, and defense counsel argued, based on that testimony and surveillance footage, no such conversation occurred.

There is no change in the appellate judgment. Appellant's petition for rehearing is denied.

PERLUSS, P. J.

A jury convicted Carlos Hernandez on two counts of special-circumstance murder and other felonies with true findings on related criminal street gang and firearm-use enhancements. On appeal Hernandez contends the trial court erred in denying his request to instruct the jury with optional language on antecedent threats in CALCRIM No. 505 (self-defense as justifiable homicide) and CALCRIM No. 3470 (self-defense as defense to crime of shooting at inhabited dwelling) and erred in failing to add a similar pinpoint instruction to supplement CALCRIM No. 571 (imperfect self-defense). Hernandez also contends the court erred in denying his motion to declare a mistrial or, in the alternative, to strike the testimony of the coroner as a consequence for the People's failure under Brady v Maryland (1963) 373 U.S. 83 (Brady) to produce impeachment evidence. In addition, relying on Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3) (Assembly Bill 333), effective January 1, 2022, which significantly modified the procedural and substantive requirements for trying and proving gang enhancements, Hernandez asserts all his convictions must be reversed. At a minimum, he argues, his substantive conviction for active participation in a criminal street gang and the gang enhancements can no longer stand.

We reverse the conviction for active gang participation and the true findings on the gang enhancements and vacate Hernandez's sentence. On remand the court is to give the People an opportunity to retry the gang offense and/or gang enhancements under the law as amended by Assembly Bill 333. If the People elect not to retry Hernandez, or at the conclusion of retrial, the court is to resentence Hernandez consistent with all recently enacted ameliorative legislation. In all other respects we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Amended Information

An amended information filed January 6, 2019 charged Hernandez with the murders of Arturo Ramirez and Michael Ramirez^[1] (Pen. Code, § 187, subd. (a))^[2] (counts 1 and 2), possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3), active participation in a criminal street gang with intent to promote, further or assist the gang's felonious criminal conduct (§186.22, subd. (a)) (count 4) and shooting at an inhabited dwelling (§ 246) (count 5).

As to counts 1 and 2 the amended information specially alleged two special circumstances-intentionally discharging a firearm from a motor vehicle with intent to inflict death (§ 190.2, subd. (a)(21)) and committing multiple murders (§ 190.2, subd. (a)(3))-and a firearm enhancement (§ 12022.53, subd. (d)). As to all but count 4 the amended information specially alleged the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)).^[3] As to count 3 it specially alleged Hernandez possessed a firearm (§ 12021, subd. (a)(1)), and as to count 5 that a principal had discharged a firearm causing death (§ 12022.53, subds. (d), (e)). In addition, the amended information specially alleged Hernandez had suffered two prior convictions for serious felonies within the meaning of both section 667, subdivision (a), and the three strikes law (§§ 667, subds. (b)-(i), 1170.12).

Hernandez pleaded not guilty and denied the special allegations.

2. The Evidence at Trial

a. The shooting

Following an altercation between "Jake," a member of the Barrio Grande Tierra (BGT) gang, and "Elijah," a member of the Varrio Norteno Homeboys (VNH) gang, two subsets of the Norteno criminal street gang, members of the subsets held a meeting to discuss their response to the ongoing dispute. They decided Jake and Elijah would resolve the matter with a one-on-one fight in the local park. However, during a telephone call the next day, Arturo, a BGT shot-caller, told Peter Sanchez, a VNH shot-caller and Hernandez's cousin, the fight would not occur as planned. Sanchez angrily responded, "If it happens again, we're going to be knocking on doors."

Christopher Ruby, Sanchez's stepson, was a witness for the prosecution after entering a negotiated plea. Ruby testified he was with Sanchez during the call and understood Sanchez's words as making a "serious threat" to Arturo. According to Ruby, Arturo replied, "Slide through," which Ruby understood to mean, "Come on over."

After this telephone call Sanchez and several VNH members, including Ruby, drove in Sanchez's sports utility vehicle (SUV) to Arturo's home near the corner of 8th and Martha Streets. Hernandez, described at trial as an associate of VNH, followed them in his pickup truck. When Sanchez's group and Hernandez arrived at Arturo's home, they were met outside by Arturo, Michael and a large group of BGT gang members armed with baseball bats and guns. Sanchez and one of his passengers got out of the SUV. A shoving match ensued. Michael brandished a gun and waved it in the face of one of the passengers still in the SUV. Hernandez got out of his truck and brandished an AK-47 assault weapon with the barrel pointed toward the ground. At some point during the scuffle Arturo and Sanchez decided they should take the dispute to the park for a "one on one." The crowd began to disperse. Sanchez and his passenger got back in the SUV, and Hernandez returned to his truck.

After the group returned to their vehicles, witnesses heard several gunshots. Surveillance video footage showed gunfire flashes coming from Hernandez's truck. There was conflicting evidence at trial as to who fired first. Several witnesses, including Ruby, testified they had heard slower, softer gun shots first, followed by louder, quicker shots, suggesting BGT members had fired first and Hernandez had returned fire. At least one other witness testified she believed she had heard the automatic weapon first.

Ruby, calling Hernandez a "one-man army," testified that Hernandez was the only one in their group who had brought a gun. According to Ruby, after Hernandez and Sanchez returned to their vehicles but before any shots were fired, Hernandez pulled up alongside Sanchez and had a brief conversation. Sanchez told Hernandez they were taking the dispute to the park. Hernandez said, "Come on," let me "hit these fools." Sanchez said no. When Hernandez asked again, Sanchez shrugged. Hernandez then quickly turned his truck around and returned to the Ramirez house. (Ruby testified Hernandez made a U-turn to return to the house although surveillance footage showed Hernandez briefly driving in reverse in the direction of the Ramirez house.)

After the initial shooting Hernandez sped north on 8th Street toward the SUV, which had remained on the corner of 8th Street and Martha Street. Sanchez made a right on Martha and left the area. Hernandez continued driving straight. When Hernandez reached a dead-end, he made a U-turn and drove quickly past the Ramirez house again, spraying between 15 and 30 shots from his automatic weapon. Arturo and Michael were killed by gunfire from the AK-47.

In testimony vigorously challenged by Hernandez's counsel, Ruby said, before returning to the Ramirez house for the last time, Hernandez once again pulled his truck alongside the SUV and told Sanchez he was "going back." He had had his weapon "on semi" during the initial shooting and intended to put it on fully automatic.^[4] Defense counsel argued based on surveillance video footage that no such conversation occurred.

The People's theory at trial^[5] was that no one was killed in the initial exchange of gunfire. Michael and Arturo were killed after Hernandez made his U-turn and returned to the house, firing his automatic weapon along the way.

The defense theory at trial was that BGT gang members fired the first shots, and Hernandez returned fire with his AK-47 in self-defense and sped away. When he came to a dead end, Hernandez turned his truck around and, knowing he would have to pass the house where people had just shot at him to return to his own home, he again fired his weapon in self-defense.

b. The gang evidence

The prosecution introduced evidence of four predicate offenses, each committed by a VNH gang member in 2011 or 2012. Detective Nader Yasin of the San Jose Police Department testified as a gang expert for the People. Based on a hypothetical scenario that closely tracked the People's evidence and theory of the case, Yasin testified the homicides were committed to benefit a criminal street gang.

3. The Jury Instructions on Complete and Imperfect...