Opinion
B222737
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HENRY HERNANDEZ, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Chung L. Mar, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA087864)
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph Henry Hernandez appeals from the judgment following his conviction for attempted premeditated murder. We affirm.
FACTS AND PROCEEDINGS
One June evening in 2009, victim Adrian Luna and a companion were walking to a neighborhood shopping center. Luna and his companion belonged to the Bassett Grande street gang and the shopping center sat in territory claimed by their gang. A car pulled up alongside Luna at a stop sign. Luna and his companion gestured with gang signs toward the car, waving their hands in the air and bringing them down in front of them. Appellant Joseph Henry Hernandez got out of the car. Appellant belonged to an enemy gang, La Puente, whose territory bordered Bassett Grande's territory. Appellant yelled "La Puente" and fired his gun four or five times, seriously wounding Luna. Appellant returned to the car, which sped away. A private security guard who saw the shooting followed the speeding car, which crashed when it failed to make a turn. The security guard captured appellant and held him until sheriff's deputies arrived and took him into custody.
The People charged appellant with one count of attempted premeditated murder of Adrian Luna. A jury convicted appellant of the charge, finding appellant's offense was willful, deliberate, and premeditated, and was committed to benefit his street gang. The court sentenced appellant to state prison for 40 years to life. This appeal followed.
DISCUSSION
A. Court's Objection and Instruction Regarding An Attributed Quotation in Appellant's Closing Argument
The gist of appellant's defense was he entered rival-gang territory without any criminal intent accompanied by his girlfriend and his girlfriend's infant daughter, and shot Luna only in response to Luna's firing at him first. In support of his defense, appellant relied on expert gang evidence that gang members from time to time enter rival territory for innocent purposes, such as to visit family and friends or, as here, to shop. Expert evidence also indicated that although a gang member's purpose for entering rival territory may be innocent, gang members enter rival territory at their own peril. Thus, a gang member will ordinarily arm himself before traveling to another gang's territory. In defense counsel's closing argument to the jury, a portion of which we quote at length, counsel elaborated on appellant's theory:
"What I would like to do is take some of the things that the expert gave his opinion on and draw for you what I think is a reasonable explanation. I'm not going to tell you it's a reasonable explanation, but I'm going to draw it for you from what I've heard and then it will be up to you to decide whether it's a reasonable suggestion based on what we heard. [¶] Now, we have -- if you think back to the evidence, [appellant] and his girlfriend go to the mall to go shopping with the baby. Okay. Now, all of those, if you recall, are innocent reasons to go into this quote, unquote territory. Because I asked him about girlfriends. I asked him about family. I asked him about shopping. I asked him if you could couple that. So based on the scenario, the generalization that the officer gave us, that's a completely acceptable situation based on what we've been told about this case. [¶] [¶]
"Another factor I want to talk about along those lines, . . . even [victim] Luna agreed to these so-called innocent reasons to go into the neighborhood, you know, to shop, to visit family, or whatever. It was established, I think, by the detective that even if you go in for an innocent purpose, you're going to go in armed, but for protection. Okay? Now, you're still armed, but you're not going in to actually be the aggressor. You're going in in a defensive posture. [¶] Now, this is important when it bears on the factor of willful, deliberate, and premeditated. And that's an issue that was presented to us by the detective, that you go in but with protection. So it doesn't necessarily flow that if you go into the neighborhood with a gun, that you're going in to do a bad deed. It's an acknowledgement, which I guess all of these gang members know that it's a dangerous world for them. [¶] Now, as [appellant and his girlfriend and her infant daughter] were leaving [the shopping center], they were spotted by Luna and his gang, his other gangster friends. Now, it's not too far-fetched to suggest that they were spotted, because the detective also told us that they know each other. They know who their enemies are. So when they're walking by and they see them in the car, it's not unreasonable to suggest based on what he said that they did recognize them and get into this encounter. [¶] Based on what we heard from the detective, it's reasonable to expect that Luna and his friends, out of loyalty to the gang, to Bassett, are going to protect the - I guess the name of their gang. This is what it's all about for them. And to answer what they perceive to be disrespect. [¶] Indeed, when they talked about this discipline, this discipline within the gang, you know, the gang members must do something to protect their gang. That's part of their stock and trade, what they believe in, or they would suffer the discipline of their own gang. And with other gang members there, it would be apparent if you don't do anything to protect the gang. So you have those pressures going on. [¶] Then again, it's not unreasonable to conclude, as was testified, that there was flashing of the signs. The detective said that's what they do. Mr. Luna said that's what they do. Or the flashing of the tattoo, which is also consistent, you remember, with that movement that [the security guard witness] talked about. And that can be perceived as a challenge. And those aren't my words; those are the words of the gang expert and Mr. Luna. [¶] So this is a plausible situation based on what we've heard in the presentation of these general gang characteristics. Nor would it be unexpected that what flowed next was a verbal altercation, calling out, the name-calling, things such as that. [¶] Based on what we heard too, it wouldn't be unreasonable that [appellant] would call them out on this violation of this unwritten rule that it's okay to go in with a gang member and family, and he calls them on it. Hey, I don't gang-bang no more. I am here with my family. (Italics added.)
"The Court: Let me simply sustain the court's own objection. There was no testimony whatsoever from any witness as to that being said. With all respect to counsel, the jury is entitled to draw whatever reasonable inferences, but they are not allowed to speculate as to things upon which there is simply no evidence. I will sustain my objection. [¶] Ask you to move forward.
"Defense Counsel: Well, what is the evidence of the case as you heard? You can ask for readback, and certainly I don't want to mislead you. And if there's anything that you doubt about what I'm stating, you can look at the record. [¶] Now, the suggestion that Luna and his fellow gangsters are armed, that's not an unreasonable suggestion based on the evidence. As a matter of fact, that was the evidence. The detective said that most often gang members do arm themselves. That's not a stretch. From what we heard, that's a very likely scenario. [¶] Now, then the scenario is that [appellant] was fired upon, and then [appellant] returned the fire."
Appellant contends the court erred by instructing the jury that "There was no testimony whatsoever from any witness as to that being said. . . . [The jury is] not allowed to speculate as to things upon which there is simply no evidence." According to appellant, the court denied him, among other rights, the right to present his defense based on the evidence and reasonable inferences drawn from the evidence. (Herring v. New York (1975) 422 U.S. 853, 858, 862-863; U.S. v. Miguel (9th Cir. 2003) 338 F.3d 995, 1006.) We disagree.
Appellant reads the court's objection and instruction too broadly. The court did not instruct no evidence supported appellant's defense that he entered Bassett Grande territory to go shopping and shot Luna only after Luna fired first. Rather, read in context, the court merely instructed no evidence existed that appellant said to Luna "Hey, I don't gang-bang no more," which counsel framed as a quotation by using the first person pronoun "I" to suggest appellant actually spoke those words. On that point, the court was correct - no evidence existed that appellant uttered those words. (People v. Boyette (2002) 29 Cal.4th 381, 463; People v. Stankewitz (1990) 51 Cal.3d 72, 102 [counsel may not state facts to the jury not in evidence].) Reasonable jurors would have understood the court directed its instruction to the nonexistent statement "I don't gang-bang"; jurors would not have perceived the court's objection and instruction as disparaging appellant's defense that he entered Bassett Grande territory for an innocent reason and fired only after Luna fired first. B. Modified Gang Instruction
Appellant belonged to the La Puente street gang, which was an enemy gang of victim Luna's street gang, Bassett Grande. Evidence showed that appellant yelled his gang name when he shot Luna, and Luna told investigating deputies a La Puente gang member had shot him. The court instructed the jury with form instruction CALJIC 17.24.3 on the limited proper use of gang evidence, modified with the following language: "[Evidence of appellant's alleged gang membership may] be considered on the issue of whether the defendant had a motive to commit the charged crime, and on the existence of any specific intent which is an element of any charged crime." According to appellant, the court's modification was error because it permitted the jury to rely on gang evidence in finding he formed the specific intent to attempt to commit murder.
In full, modified CALJIC 17.24.3 stated: "Evidence has been received relating to defendant's alleged [gang] membership in or association with criminal street gangs. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. It may also be considered on the issue of whether the defendant had a motive to commit the charged crime, an on the existence of any specific intent which is an element of any charged crime. [¶] For the limited purposes for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in this case. [¶] You are not permitted to consider such evidence for any other purpose."
Appellant forfeited his contention by not objecting during trial to the instruction. (People v. Valdez (2004) 32 Cal.4th 73, 137; but see Pen. Code, § 1259 [error affecting substantial right can be raised for first time on appeal].) But even if appellant preserved his point for appeal, the court did not err. The prosecution may not use gang evidence, by itself, to prove the defendant committed the offense with particular knowledge or intent, or to prove a defendant's criminal disposition or bad character. (People v. Memory (2010) 182 Cal.App.4th 835, 859; People v. Bojorquez (2002) 104 Cal.App.4th 335, 344.) But the prosecution may use gang evidence to prove a defendant's gang-related motive, and a defendant's harboring of such a motive permits a jury to infer the defendant's intent. (See e.g. People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["Evidence of the defendant's gang affiliation . . . can help prove . . . motive, . . ., specific intent, . . . or other issues pertinent to guilt of the charged crime."]; compare People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658 [gang expert may not opine on ultimate issue of gang member's intent based on gang membership, but may testify as to motives of a hypothetical gang member immersed in gang culture to act in a particular way]; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551 ["Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial."].)
The prosecutor's reference to a connection between appellant's gang membership and his intent was brief and in passing. The prosecutor asserted appellant's gang membership gave appellant a sophistication with guns that precluded suggesting he was "horsing around" when he shot Luna; in other words, he fired intentionally, not by accident or mistake. The prosecutor did not argue appellant's gang membership proved appellant's specific intent to attempt to kill Luna. The prosecutor told the jury: "Like I said before, don't beat up [appellant] because you might find him to be a gang member. That's not the point of the gang allegation. The point of the gang allegation is . . . whether it was gang-related. [¶] The limiting instruction that goes along with the gang allegation the judge gave you says you can use it for a couple of other purposes. For motive. What was the beef? They didn't have a beef with each other, except maybe that they recognized they were from different places. And intent . . . . Was he just horsing around when he pulled out the gun, started putting bullets downrange, or did he mean to do them harm?" Placing the court's instruction in the context of the prosecutor's argument, we see no error. C. "Kill Zone" Instruction
The trial court instructed the jury with CALJIC 8.66.1 on the "kill zone" principle involving a defendant's concurrent intent to kill multiple victims. The instruction applies to a defendant charged with multiple counts of murder or attempted murder arising from the defendant's attack of his intended victim and everyone else who might be in harm's way because of their proximity to the victim. (People v. Stone (2009) 46 Cal.4th 131, 138; People v. Bland (2002) 28 Cal.4th 313, 329-330.)
The instruction states: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the 'kill zone.' The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a 'kill zone' zone of risk is an issue to be decided by you."
Appellant contends the court erred because he was charged with a single count of attempted murder. Because he was not charged with murdering (or attempting to murder) multiple victims, he asserts the instruction did not apply. We conclude the court's error, if any, in giving the instruction was harmless beyond a reasonable doubt. First, if a court gives a legally correct, but inapplicable instruction, it is generally harmless error. (People v. Cross (2008) 45 Cal.4th 58, 67; People v. Rollo (1977) 20 Cal.3d 109, 123.) Second, the court instructed the jury that not all instructions necessarily applied, but instead applied to the extent the instructions rested on facts as the jury found them. Given those cautionary instructions, we see no reasonable possibility that the jury convicted appellant for trying to kill Luna based on the "kill zone" instruction. D. No Instruction on Sudden Quarrel or Heat of Passion
The court instructed the jury on self-defense, defense of another, and voluntary manslaughter arising from imperfect self-defense. The court did not, however, instruct on voluntary manslaughter arising from a sudden quarrel or heat of passion. Appellant contends the court's omission of a sudden-quarrel or heat-of-passion instruction was error. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162 [trial court has sua sponte duty to instruct on lesser included offenses supported by substantial evidence].) We disagree.
Gomez testified that moments before appellant and Luna purportedly exchanged mutual gunfire one of the Grande Bassett gang members tried to open the car's back door where Gomez's infant daughter was sitting.
"Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 201.) The defense rests on a subjective element and an objective element; the defendant must have acted while in the heat of passion (the subjective element), and the provocation triggering the defendant's response must have been sufficient to make an average reasonable person act with homicidal rage (the objective element). (People v. Moye (2009) 47 Cal.4th 537, 550; People v. Koontz (2002) 27 Cal.4th 1041, 1086.) Substantial evidence did not support these elements.
Appellant's defense was Luna fired first, and he fired in response to protect himself and, possibly, his girlfriend Gomez, and her infant daughter. No witness testified appellant acted in a rage or fury. To the contrary, Gomez's description of the shooting suggested appellant maintained his composure in the face of Luna's taunts and verbal insults. Gomez testified four Bassett Grande gang members walked in front of her car in which appellant was a passenger. The Bassett Grande gang members flashed gang signs and yelled at the car, shouting "Fuck peanuts [a derogatory term for La Puente]. Fuck you. Big Bassett gang or don't bang." According to Gomez, appellant got out of the car and told the Bassett Grande gang members "My daughter's in the car. You know, I don't want no problems." Appellant's conduct suggests someone acting to diffuse a situation, not someone suffering an out of control, homicidal rage. Gomez testified she then heard four gun shots, followed a few seconds later by four or five different sounding gun shots. Gomez did not see who fired which shots. Appellant returned to the car and they sped away. The foregoing sequence of events offers no evidence, other than speculation, that appellant acted in the heat of passion.
The private security guard who testified for the prosecution saw only two pedestrians near Gomez's car: Luna and one companion.
In addition to the lack of substantial evidence that appellant acted while in the heat of passion, the record lacks substantial evidence that appellant's purported homicidal rage arose from a provocation that would have led an average, reasonable person to lose all self-control. (People v. Humphrey (1996) 13 Cal.4th 1073, 1087 [objective element for heat of passion is measured against the average "reasonable person," not the average "reasonable gang-member"].) Evidence showed the Bassett Grande gang members flashed gang signs and tattoos and taunted appellant with derogatory terms, insults, and profanity. Although we need not decide the issue, we find it unlikely that an average, reasonable person would explode into a homicidal rage in those circumstances. (See generally 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2010 Supp.) Crimes Against the Person, § 216, p. 331 [discussing cases analyzing when words and taunts may or may not constitute sufficient provocation].)
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Finally, the court's error, if any, in omitting a heat-of-passion or sudden-quarrel instruction was harmless. The jury found appellant's attempted murder of Luna was willful, deliberate, and premeditated. With that finding, the jury necessarily resolved against appellant his claim that he acted in the heat of passion. (People v. Wharton (1991) 53 Cal.3d 522, 572 [finding of deliberation and premeditation "manifestly inconsistent" with acting in the heat of passion.)
Appellant's citation to our colleagues' decision in People v. Ramirez (2010) 189 Cal.App.4th 1483, 1488 for a contrary proposition is unavailing. Ramirez stated the "Supreme Court has held that the erroneous omission of an instruction on heat of passion voluntary manslaughter is not rendered harmless by a jury determination that the defendant was guilty of first degree murder rather than second degree murder." (Ramirez at p. 1488.) In support, Ramirez cited People v. Berry (1976) 18 Cal.3d 509. Berry did not, however, have before it the precise question framed by Ramirez but which is before us. In Berry, the defendant-husband was convicted of first degree murder for strangling his newlywed wife after she sexually taunted and ridiculed him. (Id. at pp. 512-514; see People v. Cole (2004) 33 Cal.4th 1158, 1216.) The Berry court concluded that the jury's determination that the murder was first degree did not necessarily mean the jury had resolved the question of provocation against the husband, which is the proposition for which our colleagues in Ramirez cited Berry. (Berry at p. 518.) The Berry court did not discuss the evidentiary or legal basis supporting the murder's degree. Thus, Berry, unlike our case here, did not involve (or at least the Berry opinion gives no indication of) an express jury finding that the murder was willful, deliberate, and premeditated. Accordingly, we find distinguishable the proposition for which our colleagues in Ramirez cited Berry, and we instead embrace the more recent observation by our Supreme Court in People v. Wharton, supra, 53 Cal.3d at page 572 that deliberation and premeditation are "manifestly inconsistent" with acting in the heat of passion.
DISPOSITION
The judgment is affirmed.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.