Opinion
B225465
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMES HERNANDEZ, Defendant and Appellant.
William L. McKinney for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LA052139)
APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.
William L. McKinney for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
James Hernandez was on probation after pleading no contest to assault with a firearm when a shooting occurred which resulted in new charges against him for murder and other crimes. After a mistrial on the murder and other charges, the trial court dismissed that case against Hernandez without prejudice at the prosecution's request and held a probation violation hearing. Hernandez chose not to testify at the probation violation hearing because he did not want to be cross-examined about the shooting. The trial court found Hernandez to be in violation of his probation based on the evidence presented at the murder trial and new evidence regarding Hernandez's possession of stolen property. The court executed the previously imposed and suspended sentence on the assault with a firearm conviction. Hernandez contends that the trial court violated his due process rights (denying him a meaningful opportunity to be heard) by holding the probation violation hearing when there was a possibility that he could be retried on the murder charges at some point in the future. We disagree and affirm.
BACKGROUND
A December 4, 2007 information in case number LA052139 charged Hernandez with two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and also alleged that he personally used a firearm (§ 12022.5) and personally inflicted great bodily injury on one of the two victims (§ 12022.7, subd. (a)).
Further statutory references are to the Penal Code.
On January 4, 2008, Hernandez pleaded no contest to one count of assault with a firearm and admitted the firearm use allegation. The trial court imposed and suspended a sentence of eight years: the upper term of four years for the offense, plus the middle term of four years for the firearm use allegation under section 12022.5, subdivision (a). The court placed Hernandez on probation for three years with terms and conditions, including that he serve 365 days in jail and obey all laws.
An incident occurred on October 21, 2008, which resulted in the summary revocation of Hernandez's probation in case number LA052139, and new charges being filed against Hernandez for murder, shooting from a motor vehicle and felon in possession of a firearm in new case number PA063488.
It is not clear from the record what date these new charges were filed because the information in case number PA063488 is not included in the record before us.
Jury trial in the new case (PA063488) began on January 11, 2010. During trial, the court stated for the record that it was "concurrently trying the probation violation" in case number LA052139. Hernandez did not testify at trial. Apparently the jury deadlocked, with 11 jurors in favor of acquittal on the charges, and the trial court declared a mistrial in case number PA063488.
On March 11, 2010, the prosecution informed the trial court that it intended to proceed with a probation violation hearing in case number LA052139 rather than a retrial on the murder and other charges in case number PA063488. The prosecution requested that the court dismiss case number PA063488 without prejudice, explaining "new evidence may come up and the People would have the right to refile the case like any other felony." Hernandez requested that the court dismiss the case with prejudice. The court denied Hernandez's request, finding that "there is sufficient evidence for this case to go to the jury," based on the evidence presented at trial. The court did not rule at that time on the prosecution's request to dismiss the case without prejudice, suggesting that it "hold [that matter] in abeyance" and proceed with the probation violation hearing.
The trial court then stated its tentative ruling that Hernandez was in violation of probation in case number LA052139, based on a finding by a preponderance of the evidence that "he was involved in the shooting" which had resulted in the charges in case number PA063488. The court asked the prosecution whether it intended to present evidence on any alternative grounds for revoking Hernandez's probation. The prosecutor explained that stolen property had been found in Hernandez's room. In response to the trial court's inquiry about notice of this additional claim, Hernandez's counsel confirmed that he was aware of the stolen property issue. Hernandez's counsel stated that he did not intend to present any additional evidence regarding the shooting.
The evidence from the trial in case number PA063488—which the court relied on at the probation violation hearing—is part of the record before us in this appeal. The prosecution presented evidence and argued that, after a fight between Hernandez's nephew/co-defendant and the victim (and others on both sides), Hernandez drove his nephew back to the victim's house where Hernandez fatally shot the victim from a moving vehicle while the victim stood outside his house.
The trial court set the probation violation hearing in case number LA052139 for March 19, 2010, and asked the prosecution whether it wanted to proceed with the dismissal in case number PA063488. The prosecutor responded affirmatively. The court stated: "Pursuant to the People's motion to dismiss as to defendant Hernandez in case PA063488, that motion to dismiss without prejudice is granted."
At the outset of the March 19, 2010 hearing, the trial court explained: "This is a continuation of the probation violation proceedings. Part of the evidence has already been heard by the court; namely the evidence elicited at the trial of the other case, PA053488. I'm well acquainted with that case since I presided over the trial. But there's additional grounds asserted by the People as well for revoking probation." The prosecution stated that it intended to present further evidence of Hernandez's violation of the condition of probation that he obey all laws—evidence regarding a stolen computer that was found in Hernandez's room.
The prosecution called a police officer, who testified that he conducted an investigation regarding a laptop computer which had been stolen from a classroom at a continuation school in December 2008. The officer did not observe signs of forced entry into the classroom, but the cord attaching the computer to the desk appeared to have been cut. The computer was marked with the words "Property of L.A.U.S.D." [Los Angeles Unified School District] in large letters and the school district logo.
The prosecution also called the investigating officer from the murder case filed against Hernandez (PA063488), who testified that he was present when a search warrant was executed at Hernandez's home on January 15, 2009. In Hernandez's bedroom, officers found the laptop computer which had been taken from the continuation school without permission in December 2008.
Hernandez called his investigator, who testified about an interview he conducted on March 11, 2009 with an acquaintance of Hernandez, who had worked for 18 or 19 years as a custodian on the campus where the continuation school was located. According to the investigator, Hernandez's acquaintance stated that he removed the laptop computer from a trash bin at the school where "unrepairable or damaged items" were placed on Fridays. Then he took the computer to Hernandez's house because Hernandez's brother was going to "clean and repair the computer." Hernandez's acquaintance testified that neither he nor Hernandez knew the computer was stolen.
Hernandez's counsel called Hernandez to testify. Before Hernandez took the stand, the prosecutor asked the trial court whether he would be permitted to cross-examine Hernandez "about murder," given that the trial court stated it was considering the evidence presented at the trial regarding the shooting. Hernandez's counsel explained: "I'm only calling him as a witness with regards to this computer. That's all. Now, if the court is going to allow the prosecution to go into the homicide, then I'm not going to call him. I thought this was pertaining to the computer only." The trial court ruled that the shooting was "a proper area of inquiry" for the prosecution because Hernandez's credibility was at issue. Hernandez counsel's stated: "If that's the court's ruling, then I'm not going to call Mr. Hernandez."
Hernandez does not challenge this ruling on appeal.
Hernandez recalled his investigator, who testified that Hernandez told him about the acquaintance that had brought the laptop computer to Hernandez's house so that Hernandez's brother could clean and repair it.
On rebuttal, the prosecution called a school police officer, who testified that "broken" school computers are salvaged, not given to employees or thrown in the trash. The officer did not know whether the school had a recycle bin where items to be salvaged could be placed.
After hearing argument from both parties, the trial court stated that it found by a preponderance of the evidence that Hernandez violated his probation when he was in possession of a stolen computer with knowledge that it was stolen. The court explained that it found the prosecution's witnesses and evidence to be credible, but found that the hearsay presented by the defense through the investigator was untrustworthy and not credible. The court commented that it could not give the "story" presented by the defense "any real weight" without being able to evaluate "firsthand" testimony from the acquaintance who gave the computer to Hernandez.
The court also stated that it found by a preponderance of the evidence based on the evidence presented at trial that Hernandez violated probation by committing murder, shooting from a motor vehicle and being a felon in possession of a firearm. Hernandez's counsel argued that it was "inappropriate for [the] court to find him in violation based on the murder trial when in fact the vast majority of the jurors in that particular case voted not guilty." Counsel acknowledged that the standard of proof at a probation violation hearing is different from the standard of proof at a trial on criminal charges.
The trial court executed the previously imposed sentence of eight years for the assault with a firearm and the enhancement for personal use of a firearm.
DISCUSSION
Hernandez does not challenge the sufficiency of the evidence presented at the probation violation hearing. He contends on appeal that the trial court violated his federal constitutional rights by holding a probation violation hearing in case number LA052139 before holding a retrial on the murder and other charges in case number PA063488. He asserts that he was denied his due process right to be heard and his right to explain his actions under the confrontation clause because "[a]nything he testified to at the probation revocation hearing would most likely be used against him at trial" on the murder and other charges. Hernandez mischaracterizes the record and misconstrues the law in this area.
In his appellate brief, Hernandez refers to case number PA063488 as the "open case." He points out that the trial court suggested that it hold the prosecution's request for dismissal of case number PA063488 "in abeyance" and proceed with the probation violation hearing. He ignores, however, that at the same hearing (less than three pages later in the reporter's transcript), and before the date set for the evidentiary hearing on the probation violation, the trial court granted the prosecution's request and dismissed case number PA063488 without prejudice.
Thus, there was no "open case" for murder at the time the trial court heard new evidence at the probation violation hearing. Hernandez's argument that the trial court violated his due process rights by holding a probation violation hearing before retrial on the murder and other charges is based on a mischaracterization of the record. The prosecution made it clear that it had no intention of proceeding with a retrial at that time, and the court granted the prosecution's request to dismiss the case.
The trial court did not violate Hernandez's rights by holding a probation violation hearing without dismissing case number PA063488 with prejudice. It appears Hernandez may be arguing that it was improper for the court to hold the probation violation hearing when there was a possibility that he could be retried on the murder and other charges at some point in the future. Hernandez asserts that this "procedure forced [him] to choose between his right to remain silent and his right to present a defense to the charges at the probation violation hearing." Not so.
In People v. Coleman (1975) 13 Cal.3d 867, 889, our Supreme Court held: "[U]pon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer's revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial court's admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing." The Coleman exclusionary rule "guarantees the probationer the ability to present a full case at the [revocation] hearing without running the risk of prejudicing his defense at a subsequent trial." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 351; see also People v. Jasper (1983) 33 Cal.3d 931 [reaffirming principles announced in Coleman].)
Hernandez chose to not testify at the probation violation hearing because he did not want to be cross-examined about the shooting. Had he chosen to testify, he would have been protected by the Coleman exclusionary rule in a subsequent trial on the murder and other charges. His contention that he was denied his rights to be heard and to explain his actions is without merit.
In his request for relief on appeal, Hernandez states: "The probation revocation should be reversed, and the matter should be returned to the court below for a separate probation revocation proceeding." It is not clear how this procedure would be materially different from what occurred below given that Hernandez still faces the possibility of re-filed murder charges.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
JOHNSON, J.