Opinion
F071911
09-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE FILIBERTO HERNANDEZ, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CM2076)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On May 20, 2015, a jury found appellant Jose Filiberto Hernandez guilty of personally using a knife to commit first degree murder (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)), and misdemeanor child endangerment (§ 273a, subd. (b)). On June 30, 2015, the court sentenced Hernandez to an aggregate term of 26 years to life, consisting of an indeterminate term of 25 years to life for murder plus a consecutive term of one year for the knife enhancement. The court did not impose custodial time for the child endangerment conviction.
Unless otherwise stated, all statutory references shall be to the Penal Code.
Hernandez raises nine separate claims in this appeal. Specifically, Hernandez alleges the following: (1) that the trial court erred in failing to sua sponte instruct on the lesser included offense of involuntary manslaughter based on voluntary intoxication, (2) that the prosecution committed misconduct by presenting the jury misleading argument regarding Hernandez's blood-alcohol content (BAC) (or, alternatively, that trial counsel was ineffective for failing to introduce evidence of Hernandez's BAC), (3) that the trial court erred in refusing Hernandez's request to provide instructions on the lesser included offense of heat of passion voluntary manslaughter, (4) that there was insufficient evidence of premeditation and deliberation, (5) that the trial court committed error by failing to exclude certain statements from the minor victim's previously taped interview, (6) that the prosecutor committed misconduct by misstating the minor victim's testimony, (7) that there was insufficient evidence to support the theory of child endangerment presented at trial, (8) that the trial court erred in failing to sua sponte instruct on the elements of indirect child endangerment, and (9) that the trial court erred in failing to provide Hernandez presentence credits for time spent in the hospital.
Upon review, we find this to be a close case with regard to Hernandez's fourth claim that there was insufficient evidence of premeditation and deliberation to support the first degree murder conviction. All of the relevant events relating to premeditation and deliberation occurred during a brief argument occurring directly before the murder. A different jury viewing the same evidence may have reached a different conclusion. However, applying the appropriate standards of appellate review, we are constrained to find that substantial evidence supports the jury's finding. While we affirm Hernandez's murder conviction, we find Hernandez's seventh claim meritorious and vacate his misdemeanor conviction for child endangerment.
FACTUAL BACKGROUND
Miguel and Nashey Ramos lived with their two children on their property in Kings County. The property was a single family residence along with an attached guest house connected by a 10- to 15-foot breezeway. Nashey's mother, Maria Mejia, lived with Hernandez (her partner), and their 10-year-old son, J.H., in the guest house.
We refer to Miguel and Nashey Ramos by their first names to prevent confusion. No disrespect is intended.
On July 12, 2014, the Ramos family hosted a party for Nashey's birthday. The party started at 6:00 p.m. and went late into the next morning. About 10 adults and three children attended the party including Hernandez, Mejia and J.H. By the time the party was winding down in the early morning, many attendees had left and the children were asleep.
J.H. went to bed around 10:00 p.m., but Hernandez and Mejia remained at the party until early the next morning. Hernandez and Mejia drank beer throughout the night. Everyone appeared to be getting along and having a good time at the party, and no one witnessed any problems between Hernandez and Mejia. Hernandez was playing Ping-Pong with Roger Martinez, Miguel's uncle. Martinez thought Hernandez was very polite, and did not notice him act inappropriately or have signs of intoxication such as slurred speech. Further, Miguel recalled Hernandez and Mejia typically got along, and did not remember them ever arguing, let alone arguing that evening.
In the early morning, Hernandez and Mejia left the party and retired to their room. No one noticed anything out of the ordinary with Hernandez and Mejia as they left. Hernandez turned on some music upon entering the room. Mejia began to argue with Hernandez. She told him to turn off the music and come to bed. During the argument, Hernandez grabbed a knife and held it behind his back. Mejia threatened to call the police, and Hernandez blocked the door. He tried to apologize to Mejia, but she continued to argue. Hernandez told J.H. to get out of the room and began stabbing Mejia. He told Miguel and the others remaining at the party that his dad was harming his mom. Miguel, Alejandro Cazarez and Cazarez's girlfriend went to the guest house to check on Hernandez and Mejia. They observed Hernandez and Mejia lying side by side on the bed. Mejia was unresponsive with a large amount of blood on the mattress under her back and shoulders. As other family members and friends entered the room, Hernandez grabbed a knife and began cutting his neck. Miguel tried to stop Hernandez, who was yelling "'No, just let me die already. I don't have nothing to live for no more. Just let me die.'" Cazarez recalled Hernandez saying, "'I killed her, and then I kill myself.'" He also told the men to take care of J.H. Miguel struggled to get the knife out of Hernandez's hands and asked others to help him. Hernandez was trying very hard to harm himself, and the men had to nearly break his fingers to get the knife out of his hands. The men struggled but managed to take the knife from Hernandez, and Miguel found a towel to try to stop the heavy bleeding from Hernandez's neck. Martinez similarly recalled Hernandez grabbing the knife and cutting his neck; however, he thought that Hernandez had also cut his neck prior to everyone entering the room.
Kings County Sherriff's Deputies Miguel Cortez and Christopher Guild responded to the scene. They were immediately led to the guest house where Mejia was lying on the bed bleeding from her head and neck. She was not breathing and the deputies were unable to locate her pulse. They also observed Hernandez lying on the floor bleeding from his neck. Hernandez was unresponsive and going in and out of consciousness. He was taken from the scene and transported by helicopter to Fresno for medical care.
A pathologist found stab wounds on the right side of Mejia's neck, upper back and right shoulder. The stab wounds to the back and shoulder were superficial, but the stab wound to the neck was fatal. The neck wound severed Mejia's carotid artery, causing massive hemorrhaging leading to her death.
Defense
Hernandez testified that on the day before the murder, he was not feeling well, left work early and took a nap for a couple of hours. Mejia woke him to get ready to go to the party. Hernandez had not eaten that day and felt dizzy after drinking six beers. Hernandez did not recall returning to his room at the end of the party or stabbing Mejia. He only recalled gaining consciousness at the hospital. When he woke up in the hospital, he asked for Mejia and was told that she was not there.
DISCUSSION
1. Instructional Error
Hernandez presents three separate claims of instructional error. He claims that the trial court failed to sua sponte provide instructions on the lesser included offense of involuntary manslaughter based on unconsciousness caused by voluntary intoxication, that the trial court erred in refusing his request for instruction on heat of passion voluntary manslaughter, and that the trial court failed to sua sponte provide instructions on all of the elements of misdemeanor child endangerment.
These claims were presented as claims one, three, and eight of Hernandez's opening brief, respectively. Further, as the court finds there was insufficient evidence to convict Hernandez of child endangerment, that conviction is vacated and his instructional error with respect to that charge is rendered moot.
a. Legal Standard
If a charged offense includes lesser offenses, the trial court has a sua sponte duty to instruct the jury on the lesser included offenses "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Eid (2014) 59 Cal.4th 650, 656 (Eid); People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Without instruction on lesser included offenses a jury might be tempted to convict the defendant "'"of a greater offense than that established by the evidence"' or acquit the defendant of the charged offense even though the "'"evidence is sufficient to establish a lesser included offense."'" (Eid, supra, at p. 657; Breverman, supra, at p. 155.) Providing instruction on lesser included offenses protects the jury's "'"truth-ascertainment function"'" by avoiding presenting the jury with "'an "unwarranted all-or-nothing choice,"'" thereby protecting against a verdict contrary to the evidence. (Eid, supra, at p. 657; Breverman, supra, at pp. 155, 161.) The "'obligation to instruct on [lesser included] offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.'" (People v. Valdez (2004) 32 Cal.4th 73, 115 (Valdez); Breverman, supra, at p. 154.)
Thus, "a trial court errs if it fails to instruct, sua sponte, on lesser included offenses that find substantial support in the evidence." (Valdez, supra, 32 Cal.4th at p. 141 (dis. opn. of Chin, J.).) "[S]ubstantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense." (Id. at p. 116; Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence is evidence deserving of consideration, "'"'that is, evidence that a reasonable jury could find persuasive.'"'" (Valdez, supra, at p. 116; People v. Cunningham (2001) 25 Cal.4th 926, 1008 (Cunningham).)
On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. (People v. Smith (2013) 57 Cal.4th 232, 239-240; Breverman, supra, 19 Cal.4th at p. 162.) In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. (Breverman, supra, at p. 162; People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel).)
b. Unconsciousness Caused by Voluntary Intoxication
Hernandez contends that he was unconscious at the time of the killing due to the combined effect of illness and alcohol. Despite any request from trial counsel for the instruction, Hernandez asserts that the trial court should have provided instruction on the lesser included offense of involuntary manslaughter. (See CALCRIM No. 626.)
Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. (§ 192; People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) Section 192 establishes three kinds of manslaughter: voluntary, involuntary, and vehicular. (Elmore, supra, at p. 133.)
Section 192 defines involuntary manslaughter as "the unlawful killing of a human being without malice" during "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection" (id., subd. (b)). "Voluntary intoxication can prevent formation of any specific intent requisite to the offense at issue, but it can never excuse homicide." (People v. Boyer (2006) 38 Cal.4th 412, 469.) "'When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.'" (People v. Rangel (2016) 62 Cal.4th 1192, 1227; People v. Ochoa (1998) 19 Cal.4th 353, 423 (Ochoa).)
Unconsciousness does not mean that the actor lies still and unresponsive. (People v. Haley (2004) 34 Cal.4th 283, 313.) Instead, a person is deemed "'unconscious'" if he or she committed the act without being conscious of acting. (Ibid.; Ochoa, supra, 19 Cal.4th at pp. 423-424.)
Hernandez contends that there was substantial evidence that he was unconscious from the combined effect of illness and drinking at the time he committed the offense. He came home early from work that day because he was not feeling well, and took a nap before the party. Hernandez did not eat, drank throughout the night and felt dizzy after drinking six or seven beers. Finally, Hernandez did not remember anything after he left the party, and when he awoke at the hospital he asked for Mejia but was told that she was not there.
The People counter that while there was evidence Hernandez had been drinking and possibly not feeling well, there is no evidence he was unconscious or otherwise unaware of his actions. Hernandez recalled and testified regarding many specific details about the party that indicate he was aware of his surroundings. He remembered playing Ping-Pong, what type of food was served, the amount of beer served at the party, which party members were not drinking and that there was a fight on the television. Further, witnesses that attended the party did not notice Hernandez act intoxicated.
Hernandez argues his case is similar to People v. Wilson (1967) 66 Cal.2d 749 (Wilson) and People v. Bridgehouse (1956) 47 Cal.2d 406 (Bridgehouse). In Wilson, the defendant and his wife separated. (Wilson, supra, at p. 752.) His wife decided to throw a party with three men. The defendant was invited to the party but during his prior interactions with the men he felt terrorized and aggravated. (Id. at p. 754.) He drove to his wife's apartment, forcibly entered with a shotgun and shot his wife and two of the men. (Id. at p. 755.) The defendant was arrested, but did not remember the events surrounding the shootings. (Id. at pp. 755-756.) Based on his testimony that he did not remember committing the acts and was distraught and mentally exhausted by the events leading to the shooting, it was error not to instruct the jury on the legal effect of unconsciousness. (Id. at pp. 762-763.) In Bridgehouse, likewise, the defendant testified his recollection of speaking with the victim just before the shooting was "'very hazy.'" (Bridgehouse, supra, at p. 410.) He had a "'very vague memory'" of the victim springing from the couch, and the next thing he remembered was pulling the trigger of his gun on empty cartridges. (Ibid.) He characterized his action as "'distorted by a haze of mental void'" and had made similar statements to the police when he was arrested. (Ibid.) The court found that an instruction on unconsciousness should have been given. (Id. at p. 414.)
There are two important distinctions between Wilson and Bridgehouse and the instant case. First, both cases were decided using a more liberal standard for determining whether sufficient evidence warranted instructions on unconsciousness. The courts were required to provide instructions even if "'[t]he fact that the evidence may not be of a character to inspire belief ....'" (People v. Carmen (1951) 36 Cal.2d 768, 773 ["'However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.'"].) However, the California Supreme Court in Flannel established a higher standard that instructions are only required upon a showing of substantial evidence. (Flannel, supra, 25 Cal.3d at p. 684, fn. 12 ["To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved."]; see Breverman, supra, 19 Cal.4th at p. 162 ["'any evidence, no matter how weak' will not justify instructions on a lesser included offense"].)
More recent California Supreme Court cases have found that a defendant's inability to recall the event was not sufficiently substantial to deserve consideration and warrant an unconsciousness instruction. (People v. Rogers (2006) 39 Cal.4th 826, 888, relying on People v. Froom (1980) 108 Cal.App.3d 820, 829-830 [evidence the defendant was forgetful and told a psychiatrist he "'awakened'" after the crime was committed did not entitle the defendant to an unconsciousness instruction]; People v. Heffington (1973) 32 Cal.App.3d 1, 10 [there is no "ineluctable rule" that a defendant's inability to remember supplies an evidentiary foundation for an unconsciousness instruction]; cf. People v. Coston (1947) 82 Cal.App.2d 23, 40 ["a defendant's mere statement of forgetfulness, unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of performing a particular act"].)
Second, the factual scenarios of Wilson and Bridgehouse are different than that of this case. Neither of those cases involved voluntary intoxication, whereas here, Hernandez presented evidence that drinking, sickness, failing to eat and sleep deprivation may have combined to cause unconsciousness. We must determine whether the evidence was sufficiently substantial so as to persuade a reasonable juror that Hernandez was unconscious.
Hernandez testified to the fact, and the other witnesses corroborated, that he was drinking alcohol throughout the night. Other factors, including Hernandez not feeling well, failing to eat food and sleep deprivation could exacerbate the effects of alcohol and provide some support that his drinking led to unconsciousness. Finally, Hernandez provided consistent testimony that he did not remember the events of the stabbing and his attempted suicide. Based on the totality of the circumstances surrounding the stabbing, there was substantial evidence he was unconscious or otherwise unaware of his actions. Even if Hernandez's testimony was not credible, it was not the province of the trial court to evaluate the credibility of Hernandez's testimony and deny providing instructions on such grounds. (Breverman, supra, 19 Cal.4th at p. 162; Flannel, supra, 25 Cal.3d at p. 684.) Based on substantial evidence of unconsciousness presented by Hernandez, the trial court had a duty to instruct the jury on the defense and allow the jury to reach its verdict in light of the evidence presented. The court erred in failing to sua sponte instruct the jury under CALCRIM No. 626 regarding voluntary intoxication.
c. Heat of Passion Voluntary Manslaughter
Hernandez also contends that the trial court erred in refusing his request for instructing the jury with CALCRIM No. 570 on heat of passion voluntary manslaughter. Hernandez concedes that a dispute arising over playing music alone would not warrant support for a heat of passion instruction. Instead, Hernandez argues that it was Mejia's comment that she was going to call the police that incited Hernandez to act and was sufficient provocation to support providing the instruction. Hernandez contends that an "astute juror" could have surmised that Hernandez was not a United States citizen, and that Mejia's threat to call the police could have been interpreted as an attempt to have him removed from the country.
Hernandez concedes that the jurors were not made aware that he was an undocumented alien, but only that they may have "inferred as much."
i. Procedural History
During jury instruction discussions, the trial court declined defense counsel's request to instruct the jury with CALCRIM No. 570 for voluntary manslaughter based on heat of passion. However, the arguments presented by counsel regarding the instruction were made in chambers and not preserved on the record. The prosecution specifically commented on the record that it did not request to have the instruction withdrawn, but that it was the court's decision to withdraw the instruction. The trial court reiterated its finding made in chambers for the record that the dispute over turning off the music was not sufficient provocation to warrant giving the voluntary manslaughter instruction.
Despite not providing the requested provocation instruction for voluntary manslaughter, the court did instruct the jury how provocation could reduce murder from first degree to second degree. (CALCRIM No. 522.)
ii. Legal Standards
As previously stated, voluntary manslaughter, a lesser included offense of murder, is an unlawful killing without malice. (§ 192; People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas).) Punishment is mitigated for this offense, which the law deems less blameworthy than murder, because of the attendant circumstances and their impact on the defendant's mental state. (Elmore, supra, 59 Cal.4th at p. 133.) Heat of passion is recognized by statute as a mitigating factor. (§ 192, subd. (a); Elmore, supra, at p. 133.)
Voluntary manslaughter is the unlawful killing of a human being without malice "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) An unlawful killing is voluntary manslaughter only "'if the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an "'ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.'" [Citations.]'" (Thomas, supra, 53 Cal.4th at p. 813; Breverman, supra, 19 Cal.4th at p. 163.) "'The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation ... must be affirmatively demonstrated.'" (Thomas, supra, at p. 813; People v. Lee (1999) 20 Cal.4th 47, 60.)
In a related vein, the existence of provocation is relevant to determining whether the offense is premeditated murder in the first degree or unpremeditated murder in the second degree. (People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi); People v. Wickersham (1982) 32 Cal.3d 307, 329 (Wickersham).) Provocation that is not adequate to reduce the class of the offense from murder to manslaughter may nevertheless raise a reasonable doubt and negate a finding of deliberation and premeditation, reducing the offense from premeditated murder in the first degree to unpremeditated murder in the second degree. (Carasi, supra, at p. 1306; Wickersham, supra, at p. 329.) "First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment, including one arrived at quickly [citation], and is evidenced by planning activity, a motive to kill, or an exacting manner of death." (Carasi, supra, at p. 1306.) Such state of mind "is manifestly inconsistent with having acted under the heat of passion—even if that state of mind was achieved after a considerable period of provocatory conduct ...." (People v. Wharton (1991) 53 Cal.3d 522, 572.) The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance. (Wickersham, supra, at p. 329.)
iii. Analysis
Hernandez argues that Mejia's threat of calling the police resulted in him reacting with a sudden outburst of passion. In support, Hernandez contends that the threat of calling the police had potentially severe repercussions, and that Hernandez's attempt to commit suicide directly thereafter indicates that the passion quickly wore off and he regretted the actions he had taken. Hernandez also argues that the prosecutor recognized that there was substantial evidence to support providing the instruction based on heat of passion voluntary manslaughter and "vigorously opposed" the court's refusal to provide the instruction.
The People counter that Hernandez failed to meet his burden to present sufficient evidence to support his theory that the threat to call the police would have aroused such passion, and that the totality of the events surrounding the killing do not support a finding that Hernandez's reasoning was so obscured as to warrant providing the instruction.
The full discussion regarding the heat of passion instruction occurred in chambers and is not available for review. It is not possible to determine if Hernandez argued, or if the trial court took into consideration, the theory that the provocation was based on the threat to call the police in not allowing the instruction. The trial court only made the following statement: "The Court does find the evidence presented in the trial was that the victim asked ... Hernandez to turn down the—turn off or turn down the speaker, whether it be a television or music. The Court finds that that is not sufficient provocation to warrant the giving of the [voluntary] manslaughter instruction." When asked directly thereafter if there were any other comments regarding the instructions, Hernandez's counsel did not attempt to challenge the court's finding and mention that the provocation was the threat to call law enforcement, not a dispute over playing music.
Also, a review of the record shows that Hernandez's contention that the prosecutor "vigorously opposed" not providing the instruction is inaccurate. The record does not reflect whether the prosecutor thought there was sufficient evidence to provide the instruction. Instead, the prosecutor wanted the record simply to reflect that she did not request the instruction be withdrawn. The trial court obliged and noted that after discussing the matter in chambers, it found there was not sufficient provocation to warrant the instruction, and ordered it withdrawn. The prosecutor did not make any further comments on the record regarding the instruction. The prosecutor's comments do not support Hernandez's contention that there was substantial evidence that a reasonable jury could find persuasive to support a conviction of the lesser included offense of voluntary manslaughter.
Nevertheless, there is substantial evidence to support providing the instruction. First, the threat of potential arrest could have served to incite a strong passion in Hernandez. As he had armed himself with a knife and was potentially blocking the door, he would have a legitimate fear that he could be arrested for potential criminal conduct, including false imprisonment, assault and criminal threats. The exact sequence of events that occurred during the argument and leading to the stabbing are based solely on J.H.'s testimony and are somewhat unclear. J.H. testified that Hernandez grabbed the knife after Hernandez and Mejia began arguing about playing music. Hernandez paused and, while holding the knife behind his back, attempted to apologize to Mejia. Evidence that Hernandez did not take immediate action and was attempting to apologize supports the defense's theory that Mejia's comments about calling the police aroused strong passion in Hernandez, resulting in the stabbing. On the other hand, the fact that Hernandez grabbed the knife prior to Mejia's threat to call the police could undercut a heat of passion defense. The act of arming himself with the knife creates an inference that he already possessed the intent to stab Mejia prior to her threat to call the police. No matter the competing interpretations of the evidence, there was substantial evidentiary support for providing the instruction.
Hernandez contends that the threat of arrest and criminal conviction was even more severe based on possible immigration consequences.
Additionally, the fact that the court instructed the jury on the effect of provocation in reducing murder from first degree to second degree provides support that there was substantial evidence as to the similar heat of passion provocation instruction. (People v. Castillo (1969) 70 Cal.2d 264, 270 [the trial court's decision to give certain instructions establishes a strong presumption the evidence supports such instructions]; People v. Middleton (1997) 52 Cal.App.4th 19, 33.) The trial court found sufficient evidence to support instruction that provocation could negate premeditation and deliberation creates an inference that there was sufficient provocation to support instruction on heat of passion voluntary manslaughter. It is possible that the court found the evidence of provocation sufficient to support instruction on reducing the murder from first degree to second degree, but not from murder to voluntary manslaughter. To the extent that the trial court was trying to make such a fine distinction, the lack of discussion on the record hinders this court's ability to review the determination.
Based on the record presented at trial, the argument and threat of arrest was sufficient to show provocation that could have resulted in a strong passion causing an ordinary person to act rashly and without due deliberation and reflection, rather than from reason or judgment. A reasonable jury could have found the evidence of the argument and threat to call the police persuasive support for deciding that the stabbing was made in the heat of passion. In conclusion, substantial evidence of provocation existed, and the court erred in not providing instruction on heat of passion voluntary manslaughter.
d. Harmless Error
Even if the trial court failed to provide the instructions on the lesser included offenses, reversal is only required if the error harmed Hernandez.
The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. In Davis v. Ayala (2015) ___ U.S. ___ [135 S.Ct. 2187, 2197], the United States Supreme Court reaffirmed that the standard of review for harmlessness on direct appeal is whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) This is known as the Chapman harmless error standard. (Brecht v. Abrahamson (1993) 507 U.S. 619, 622-623 [comparing Chapman standard to the less onerous standard applicable to federal habeas review whether the error had a substantial and injurious effect or influence in determining the jury's verdict].) Stated differently, reversal is required if there is a reasonable possibility that the error might have contributed to the verdict. (Chapman, supra, at p. 24; People v. Aranda (2012) 55 Cal.4th 342, 367.)
Alternatively, California is free to apply its own harmless error rule to violations of state law that do not implicate federal safeguards. (Cooper v. California (1967) 386 U.S. 58, 62; People v. Blackburn (2015) 61 Cal.4th 1113, 1132 (Blackburn).) California's harmless error rule is set forth in article VI, section 13 of the California Constitution. (Blackburn, supra, at p. 1132.) It states that trial error does not merit reversal of a judgment unless "the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; People v. Lightsey (2012) 54 Cal.4th 668, 699, fn. omitted.) The California Supreme Court has interpreted the standard to require the appellant to demonstrate that it is reasonably probable that a result more favorable to the appellant would have occurred absent the error, and is referred to as the Watson harmless error standard. (People v. Watson (1956) 46 Cal.2d 818, 837 (Watson); Blackburn, supra, at p. 1132.)
With regard to the instant claims, the California Supreme Court has found that "'the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone ...' and, ... 'subject ... to the Watson harmless error test.'" (Blackburn, supra, 61 Cal.4th at pp. 1135-1136; see Breverman, supra, 19 Cal.4th at pp. 165, 171.) Rather than determining whether there was substantial evidence to support giving the instruction, under Watson, the court is to take an entirely different view of the evidence and determine not what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error. (People v. Moye (2009) 47 Cal.4th 537, 556 (Moye).)
The court may compare the relative strength of the evidence supporting the existing judgment to that supporting a different outcome to determine if there is a reasonable probability the error affected the result. Application of the Watson standard of appellate review may "'disclose that, though error occurred, it was harmless.'" (Moye, supra, 47 Cal.4th at p. 556.)
i. Voluntary Intoxication
It was not reasonably probable that Hernandez would have succeeded in convincing a jury he was unconscious had the trial court sua sponte provided the instruction. Hernandez mentioned that he was dizzy after drinking six or seven beers over the course of an hours-long party. Also, Hernandez presented evidence that might have exacerbated the effect of the alcohol, including not feeling well, his failure to eat food and sleep deprivation. He also provided consistent testimony that he was unable to remember the events that occurred once he left the party. However, Hernandez only provided cursory testimony as to why his consumption of alcohol, in light of the above factors, would lead to unconsciousness.
In contrast, jurors likely would not be able to look past the fact that Hernandez presented no outward signs of intoxication or abnormal behavior prior to the stabbing. Witnesses did not observe Hernandez manifest any common, physically observable signs of intoxication (much less extreme intoxication) during the party, such as slurred speech, loss of balance or general lack of motor control. Hernandez was observed playing Ping-Pong during the night, which requires some level of motor control and coordination. One witness described Hernandez as "very polite" and not engaging in any inappropriate behavior.
Hernandez's actions after the party also provide little support for finding voluntarily intoxication. J.H. testified to the details of the dispute between Mejia and Hernandez resulting in the stabbing. While Hernandez may have been insensitive to J.H. and Mejia by turning on music while they were trying to sleep, none of the actions indicate a lack of consciousness. He had the presence of mind to tell J.H. to leave the room and to attempt apologies for the loud music. He admitted he killed Mejia. Even his attempts to slit his own throat after the stabbing are not indicative of unconsciousness. His attempts at suicide and his comments that he had nothing left to live for suggest that he knew and was conscious of the consequences of his actions and immediately regretted what he had done.
Further, the court instructed the jury with CALCRIM No. 625, which provided guidance on how to consider any evidence of Hernandez's voluntary intoxication. The instruction limited the jury's consideration of evidence of voluntary intoxication to deciding whether Hernandez "acted with an intent to kill, or [Hernandez] acted with deliberation and premeditation." Despite the instruction and argument by counsel on how Hernandez's voluntary intoxication could have negated a finding of express malice, the jury still concluded that Hernandez acted with premeditation and deliberation and that Hernandez had engaged in some level of planning and calculation, rather than that intoxication negated his mental state. Based on the same evidence, it is not reasonably probable that the jury would have found that Hernandez was unconscious from voluntary intoxication at the time of the killing and guilty of manslaughter rather than murder. As such, the failure to provide the instruction was harmless.
ii. Heat of Passion
Likewise, it was not reasonably probable that the jury would have found that Hernandez acted in the heat of passion if provided such an instruction. Evidence was presented that he and Mejia were arguing over loud music and she threatened to call the police. However, the argument was not sufficiently provocative to show that he acted in the heat of passion. The fact that he armed himself with a knife and paused to contemplate his actions before stabbing Mejia presented the jury with evidence inconsistent with a theory of heat of passion.
Even though the jury was not instructed on heat of passion voluntary manslaughter, they were provided an instruction on provocation as it applies to reducing murder from first degree to second degree. Nevertheless, the jury was unpersuaded and found sufficient evidence of premeditation and deliberation to convict Hernandez of first degree murder. The reasons are likely twofold. First, the jury reviewed all of the evidence and determined the credibility and weight to apply to the testimony of the witnesses. The jury did not find that the argument prior to the stabbing, including Mejia's statement that she was going to call the police, was sufficient provocation to negate finding that Hernandez committed the murder with premeditation and deliberation. Second, during closing argument, Hernandez's counsel did not present a defense based on provocation. Instead, counsel focused on Hernandez's intoxication and argued that the decision to kill was made rashly, impulsively and without careful consideration. Rather than argue that Hernandez had a motive to kill based on provocation, Hernandez's counsel presented a contrary defense that the stabbing occurred without significant thought or motivation.
Upon examining the totality of the evidence presented, including what theories were presented by the defense at closing, we conclude it is not "reasonably probable" Hernandez would have obtained a more favorable outcome at trial had a heat of passion instruction been given. (Watson, supra, 46 Cal.2d at p. 836.) The court's failure to instruct on heat of passion was harmless, and Hernandez's claim lacks merit. 2. Prosecutorial Misconduct
Hernandez contends the prosecutor committed misconduct during rebuttal argument, specifically with regard to comments about how much alcohol Hernandez had in his system and what he was thinking about when he held the knife behind his back. This claim is not cognizable on appeal.
a. Factual Summary
In his closing argument, defense counsel argued that Hernandez's judgment was clouded by his intoxication at the time of the killing. In rebuttal, the prosecutor stated:
"It wasn't really clear from anyone, even [Hernandez], exactly how much he had to drink. And apparently it was over about a 12-hour window, so we don't really know if that was towards the beginning of the evening, or towards the end. There was really no evidence that would show you when the alcohol was consumed. And there was nothing to show what his [BAC] was."
Hernandez contends that the statement misrepresented the evidence, as his BAC was taken later that morning when he was admitted in the hospital.
Hernandez's BAC was 0.178 percent when he was admitted to the hospital, and 0.12 percent when again tested at 10:13 a.m. This evidence was not presented to the jury.
Hernandez also argues that the prosecution misrepresented the testimony provided by J.H. in stating that J.H. could tell Hernandez was thinking about killing Mejia while he was holding the knife. Hernandez contends that the record did not support the inference made by the prosecution that he was thinking about stabbing Mejia, but that he was instead thinking about how he had gotten into an argument over playing music in the first place.
b. Legal Standard
"'A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.'" (People v. Edwards (2013) 57 Cal.4th 658, 734; People v. Avila (2009) 46 Cal.4th 680, 711.) Conduct that falls short of that standard "'may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.'" (People v. Gamache (2010) 48 Cal.4th 347, 371 (Gamache); People v. Panah (2005) 35 Cal.4th 395, 462.)
Prosecutors are given wide latitude during argument. (Gamache, supra, 48 Cal.4th at p. 371.) "'"'"The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom."'"'" (Ibid.) In evaluating such a claim, we determine whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion. (People v. Cash (2002) 28 Cal.4th 703, 733.)
Further, the claim of misconduct must be preserved for review. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) The defendant must make a timely objection and request an admonition. (Ibid.) Only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (Ibid.)
c. Analysis
i. Failure to Preserve Claims
Hernandez neither objected nor sought admonitions for either of the claimed misrepresentations made by the prosecution at trial. The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for admonition in the trial court. (People v. Chatman (2006) 38 Cal.4th 344, 385; Cunningham, supra, 25 Cal.4th at pp. 1000-1001.) Hernandez acknowledges his failure to object to the prosecutor' s comments, but he argues he meets the exception allowing review where an admonition would not have cured the harm caused by the misconduct. (Cunningham, supra, at pp. 1000-1001.)
With regard to the prosecution's comments about Hernandez's alcohol consumption, he asserts that the prosecutor effectively told the jury that Hernandez stopped drinking earlier in the evening, and no longer had alcohol in his system. He alleges that it was unreasonable to think that jurors would disregard the statements, even if instructed to do so. This overstates the prosecutor's comments. The prosecutor said there was no evidence one way or the other regarding when the alcohol was consumed. Hernandez's claim that admonishment was futile is without merit. The jury was instructed that the attorneys' remarks during closing argument are not evidence, and the only evidence was the testimony of the witnesses and exhibits presented at trial. It is presumed that the jury follows the instructions given. (People v. Simon (2016) 1 Cal.5th 98, 130.) Even assuming that the prosecutor's statement misrepresented the evidence presented, there is no reason to believe that an admonishment as to what should be considered as evidence would not have cured the misconduct.
The same argument applies to Hernandez's second claim of misconduct regarding the prosecution's interpretation of J.H.'s statements concerning what Hernandez was thinking prior to stabbing Mejia. Assuming the prosecution's statements misrepresented J.H.'s testimony, had Hernandez objected and the court admonished the jury to rely only on the evidence presented by the witnesses and exhibits, it would be assumed that the jury would do so and no prejudice would result. Having failed to object to the prosecutor's statements, Hernandez has forfeited these claims on appeal.
ii. Comments Regarding BAC
In any event, we find no misconduct occurred. With regard to the prosecution's comments about how much Hernandez had to drink, all but the last sentence was factually accurate. There was no specific evidence provided about how much or when Hernandez was drinking during the course of the night. The prosecutor's comment that there was "nothing to show what his [BAC] was" was factually incorrect as Hernandez's BAC was taken when he arrived at the hospital. Accordingly, there was evidence of Hernandez's BAC, but it was not presented at trial. The prosecutor was addressing the jury about what the evidence at trial showed and she correctly stated that there was nothing in evidence to establish Hernandez's BAC.
Hernandez believes the prosecutor's argument was improper because by stating there was no evidence of his BAC, the jury would assume he was not intoxicated at the time of the stabbing. This argument reads too far into the prosecutor's statements in rebuttal. Even if the jury was misled that Hernandez's BAC was never obtained, he contends that the prosecutor's argument inferred that there was no evidence that he was drunk at the time of the stabbing. There was, however, significant evidence that Hernandez was drinking that night. The prosecutor readily admitted as much, but argued that evidence was lacking regarding when and how much alcohol Hernandez consumed. It is not reasonable to construe the prosecution's argument to infer that Hernandez did not consume alcohol that night. The point being made was that the jury was not presented with evidence of Hernandez's BAC level, and that he could have been less under the influence of alcohol at the time of the stabbing than he was earlier in the night.
This is corroborated by the prosecutor's rebuttal argument as a whole. A significant part of the rebuttal focused on how, despite the evidence that Hernandez had been drinking during the night, there was significant evidence that he did not appear to be intoxicated. The prosecutor described how others at the party did not observe outward signs of intoxication, and that Hernandez personally was able to recall many details from the party. The prosecution also argued that if Hernandez was very intoxicated it would have likely impaired his coordination, making it difficult for him to play Ping-Pong throughout the night. There was no reasonable likelihood that the jury construed or applied the prosecutor's comments about Hernandez's BAC in an objectionable fashion. (People v. Friend (2009) 47 Cal.4th 1, 29.)
Hernandez likewise contends that the prosecutor misstated facts in evidence in describing that Hernandez was playing Ping-Pong "well." The prosecutor was arguing in the abstract that intoxication would affect one's ability to play Ping-Pong, not necessarily that there was evidence that Hernandez was adeptly playing Ping-Pong that night. "Someone really intoxicated, it is probably unlikely they are going to be able to play that very long, if at all, certainly not well." Providing the prosecutor wide latitude, the arguments made and the inferences alleged by the prosecutor were reasonable and do not amount to misconduct. (Gamache, supra, 48 Cal.4th at p. 371.) Reasonable jurors would not consider the argument to mean that Hernandez was playing Ping-Pong well, but rather that if he was intoxicated it would have impaired his ability to play Ping-Pong.
iii. Ineffective Assistance of Counsel
Alternatively, Hernandez argues that trial counsel's failure to present evidence of his BAC constituted ineffective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
A defendant claiming ineffective assistance of counsel must satisfy Strickland's two-part test requiring a showing of counsel's deficient performance and prejudice. (Strickland, supra, 466 U.S. at p. 687.) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) A court must evaluate counsel's performance "from counsel's perspective at the time" without the "distorting effects of hindsight," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Ibid.)
The prejudice prong requires a defendant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) "In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 111-112 (Harrington).)
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." (Strickland, supra, 466 U.S. at p. 697.)
In the interest of judicial economy, we will assume counsel was deficient for not introducing evidence of Hernandez's BAC. However, for the same reasons that the failure to provide instructions regarding voluntary intoxication was harmless, there was not a reasonable probability that the results would have been different if the BAC evidence was admitted. The jury was aware that Hernandez had been drinking beer prior to the stabbing. Even if the jury was provided evidence confirming that Hernandez had alcohol in his system, it would not change the fact that he acted normally and did not display any signs of intoxication during the party. It was not enough to show that Hernandez had alcohol in his system. To reach a different result, Hernandez would have had to convince the jury that due to his intoxication, he was either unable to form the requisite intent to kill or premeditate to commit the murder. The introduction of evidence of Hernandez's BAC, while helpful, does not establish that it was reasonably probable the jury would determine that alcohol so clouded his judgment as to negate or reduce his level of culpability. (Harrington, supra, 562 U.S. 86 at p. 112.)
iv. Comments Regarding Thinking About Committing Murder
Hernandez next contends that the prosecution misconstrued J.H.'s statements that he witnessed Hernandez "thinking" about stabbing Mejia. Hernandez argues that J.H. testified that Hernandez was thinking about the argument that had just occurred, not about what he was going to do next. Upon review, the prosecution did not misconstrue the evidence presented.
At trial, J.H. testified to the following:
"Q. So you said he got the knife and he held it behind his back?
"A. Yeah.
"Q. And then what did he do after that?
"A My dad was right there where the door [is] and started thinking about it.
"Q. He was right there by the door?
"A. Yeah, and thinking about it, what he just did, but now he is trying to apologize to my mom, and my mom started arguing. And my dad started stabbing her."
Hernandez argues that the prosecution committed misconduct by construing J.H.'s testimony to mean that he observed Hernandez thinking prospectively about killing Mejia, when he was in fact thinking retrospectively about the argument that had just occurred. J.H.'s statement lacks clarity, which is understandable coming from a child witness describing a traumatic event. J.H. stated that Hernandez was "thinking about it," but later comments that Hernandez was thinking about "what he just did." J.H. does not describe what the "it" is that Hernandez was thinking about. Further, if construed literally, the comment would imply that Hernandez was thinking about something he had already done, rather than what he was intending to do.
We find that it was not misconduct on the part of the prosecution to more liberally construe the statements and argue that J.H. thought Hernandez was thinking of killing Mejia. Providing the prosecution wide latitude during argument, it was fair for the prosecution to contend that J.H.'s testimony was circumstantial evidence that Hernandez paused to reflect and contemplate whether or not to stab Mejia. Reasonable jurors would understand that J.H. could only observe Hernandez, and could not actually know what he was thinking. The jurors were able to observe J.H., listen to his testimony, and decide whether they agreed with the prosecution's argument that J.H.'s testimony indicated that Hernandez was indeed contemplating stabbing Mejia. Having observed his testimony, the jury was in the best position to determine whether to believe J.H. intended his testimony to mean that Hernandez was thinking about stabbing Mejia. We find that the prosecution's argument regarding what Hernandez was thinking about did not so misrepresent the evidence or make improper argument in light of the evidence to establish prosecutorial misconduct. (Gamache, supra, 48 Cal.4th at p. 371.) 3. Sufficiency of Evidence of Premeditation and Deliberation
a. Standard of Review
A state court conviction that is not supported by sufficient evidence violates the due process guarantees of the federal and California Constitutions and is therefore invalid. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In determining whether a criminal conviction is supported by sufficient evidence for purposes of federal due process, a reviewing court must "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318.) In Jackson, the Supreme Court explained that "this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." (Id. at pp. 318-319, fn. omitted.)
The standard under our state Constitution is "identical." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.) As the California Supreme Court has explained, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) Substantial evidence is evidence that "maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined." (People v. Conner (1983) 34 Cal.3d 141, 149.) The "'whole record'" includes "'the entire picture of the defendant put before the jury'" and is not limited "' to isolated bits of evidence selected by the respondent.'" (Johnson, supra, at p. 577; People v. Medina (2009) 46 Cal.4th 913, 919.) Further, "'[t]he standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.'" (People v. Casares (2016) 62 Cal.4th 808, 823 (Casares); People v. Bean (1988) 46 Cal.3d 919, 932.)
Hernandez alleges the prosecution presented insufficient evidence of premeditation and deliberation to support the first degree murder verdict. "'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. (§ 189 ["willful, deliberate and premeditated killing" as first degree murder].) "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.] '"'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'"'" (Casares, supra, 62 Cal.4th at p. 824.) To prove a killing was "'deliberate and premeditated,'" it is "not ... necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (§ 189.)
"'In the context of first degree murder, premeditation means "'considered beforehand'" [citation] and deliberation means a "'careful weighing of considerations in forming a course of action ...'" [citation].'" (People v. Salazar (2016) 63 Cal.4th 214, 245 (Salazar).) "'"The process of premeditation and deliberation does not require any extended period of time."'" (Ibid.) "'"'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'"'" (Casares, supra, 62 Cal.4th at p. 824.) Even "'assuming a reasonable jury could have found the evidence did not support premeditation and deliberation and returned a verdict of second degree murder, [the defendant's conviction] must stand ... "[i]f the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding."'" (Salazar, supra, at p. 245.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the California Supreme Court "identified three factors commonly present in cases of premeditated murder: '(1) [F]acts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).'" (People v. Koontz (2002) 27 Cal.4th 1041, 1081 (Koontz).)
Our high court has cautioned that Anderson "'did not refashion the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] In other words, the Anderson guidelines are descriptive, not normative. 'The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.'" (Koontz, supra, 27 Cal.4th at p. 1081.) Thus, the Anderson "factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.'" (People v. Stitely (2005) 35 Cal.4th 514, 543.)
b. Analysis
Hernandez contends that there was little to no evidence supporting any of the three Anderson factors—planning, preexisting motive or manner of killing. We will address each in turn.
i. Planning
Hernandez argues that there was no evidence of planning because he did not bring the murder weapon to the scene, that he only grabbed the knife after the argument had begun, that it was unlikely that he provoked the argument to provide an opportunity to stab Mejia, that it was not an isolated location that would have assisted Hernandez in not being detected and there was no evidence of prior threats or suspicious behavior. Hernandez is correct that there is significant evidence that the murder was not particularly well planned. There was no evidence that Hernandez took any actions prior to grabbing the knife that was out of the ordinary or otherwise indicated some strategic steps by him to kill Mejia. The stabbing occurred in their home, and there was no evidence that the knife was otherwise moved or located to an easier, accessible location prior to the stabbing.
To the extent there was evidence of planning, it was not extensive. Despite the lack of extensive planning, "'"the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding."'" (Salazar, supra, 63 Cal.4th at p. 245.) Even reviewing the evidence in the light most favorable to the prosecution, we see no evidence of planning prior to the point at which Hernandez picked up the knife. Nor do the People argue that there was evidence of planning prior to that point. However, the totality of Hernandez's actions after he grabbed the knife provides sufficient evidence of planning. Hernandez grabbed the knife, held it behind his back, blocked the door, and appeared to J.H. to be thinking. While not extensive planning, the fact that Hernandez stood for some period of time with the murder weapon provides significant circumstantial evidence that he engaged in some degree of planning about how to kill Mejia with the knife he was holding. (Casares, supra, 62 Cal.4th at p. 824.)
Hernandez counters that he was thinking about the previous argument over loud music and not about planning to murder Mejia. J.H. testified that he witnessed Hernandez thinking as he held the knife. Although J.H. could not know what Hernandez was actually thinking, his testimony informed the jury that Hernandez appeared to be in thought and, based on the totality of the evidence, the jury would have to determine whether to infer that Hernandez was planning to stab Mejia as he held the knife. Although J.H.'s testimony is circumstantial, if the jury believed that Hernandez was indeed thinking and planning about killing Mejia after he picked up and held the knife, there was sufficient evidence of planning. (Casares, supra, 62 Cal.4th at p. 823.)
ii. Preexisting Motive
Next, Hernandez points out that there was no evidence of preexisting motive or even evidence of relationship problems with Mejia. No evidence was presented as to motive to kill Mejia based on anything but the argument when they entered their room. Although the argument was trivial in nature, it still served as a potential basis or motivation to commit the murder. Viewing the evidence in a light most favorable to the prosecution, Hernandez could have been angered by the argument, leading to his desire to kill Mejia. It matters not whether the motive was either substantial or legitimate, but rather that there was evidence that the killing was based on a given rationale, rather than based on unconsidered or rash impulse or just otherwise inexplicable.
The People also argue that Hernandez stabbed Mejia because he became enraged when she did not accept his apology. This argument does not support the People's theory that the killing was premeditated. Had Hernandez become enraged and made a rash, impulsive decision to kill Mejia, then it would show a lack of premeditation and deliberation. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334.) In closing arguments, the prosecution did not present argument that Hernandez was enraged from the argument or Mejia's failure to accept his apology. Instead, the prosecution focused on how Hernandez had many choices after he picked up the knife and, despite nonviolent alternatives, he chose to stab Mejia. Despite the People's arguments on appeal, and while not overwhelming, there was at least some evidence indicating that Hernandez had a motive to kill Mejia and that he acted after careful thought and weighing of considerations.
iii. Manner of Killing
With regard to the manner of killing, Hernandez argues that it was probably just a matter of chance that the fatal wound struck a major artery in Mejia's neck causing death and that the stabbing was more consistent with a frenzied outburst rather than an execution style murder. However, stabbing someone in a critical area such as the neck creates an inference that Hernandez intended to kill as part of a preconceived design. Further, stabbing someone multiple times until they are critically injured also creates an inference that there was a calculated attempt to kill the victim. When viewed in the totality of the circumstances, there is sufficient evidence that while the period of time was short, Hernandez held the knife and conceived a plan to kill Mejia, which he executed by stabbing her in one of the most critical areas of her body. While not overwhelming, the facts presented here are sufficient to support a verdict of premeditated and deliberate first degree murder.
iv. Conclusion Regarding Premeditation
"[P]lanning activity occurring over a short period of time is sufficient to find premeditation." (People v. Sanchez (1995) 12 Cal.4th 1, 34, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A rational jury could find that Hernandez "rapidly and coldly formed the idea to kill" Mejia while he argued with her as he was holding the knife. (People v. Brady (2010) 50 Cal.4th 547, 563-564.) "[P]remeditation and deliberation can occur in a brief period of time." (Id. at p. 563.) "[L]ack of evidence of extensive planning does not negate a finding of premeditation." (Ibid.)
In finding that there was sufficient evidence to support a finding of premeditation and deliberation, we note that this was a close case. There was evidence of motive based on the argument that had just occurred prior to the killing, but Hernandez rightfully raises the argument that the dispute alone would not have led to him planning the cold and calculated killing of Mejia. Also, the manner of killing may be viewed as an "unconsidered explosion of violence" rather than "a calculated design to ensure death." (People v. Horning (2004) 34 Cal.4th 871, 902-903.) There is no evidence that the stabbing took significant time, and it is possible that it occurred in an outburst of anger, rather than as part of a cold, calculated plan.
The most significant evidence supporting Hernandez's claim that he lacked premeditation and deliberation is his attempted suicide after stabbing Mejia. The jury could reasonably consider Hernandez's conduct after the killing in relation to the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1128 (Perez).) The People argue that it was part of the greater plan of killing Mejia and then himself. At best, it can be stated that the attempted suicide was not well planned or executed. Slitting his neck proved to be a difficult method of suicide, as demonstrated by Hernandez's own failed attempt. Further, had Hernandez planned on committing suicide, he did not provide sufficient time, as J.H. ran to the main house and alerted adults who intervened. Whether the events show a lack of planning or just a lack of execution, it provides support Hernandez did not carefully weigh the considerations beforehand.
Again, we acknowledge the evidence of premeditation and deliberation in this case was not particularly strong, but "the relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that [the] defendant premeditated the murder." (Perez, supra, 2 Cal.4th at p. 1127.) The duration of Hernandez's planning and reflection was unquestionably short. However, "'"'[t]he true test is not the duration of time as much as it is the extent of the reflection.'"'" (Casares, supra, 62 Cal.4th at p. 824.) The jury was presented with circumstantial evidence of Hernandez's premeditation and deliberation. While Hernandez has presented legitimate argument as to why the killing was based on rash impulse, it does not undermine the fact that there was substantial evidence based on reasonable inferences from the testimony provided that support the jury's finding of the essential elements of premeditation and deliberation beyond a reasonable doubt. (Johnson, supra, 26 Cal.3d at p. 578.) For the reasons we have discussed, we conclude the evidence in this case was sufficient to sustain a finding of premeditation and deliberation. 4. J.H.'s Prior Statements
In addition to allowing J.H. to testify at trial, his statements made during an interview four days after the incident were provided to the jury under Evidence Code section 1360. Hernandez does not object to admittance of the entirety of the recorded interview. Rather, he alleges that the trial court abused its discretion in admitting statements during the interview when J.H. described what Hernandez said as he attacked Mejia. Hernandez believes those statements are not reliable under Evidence Code section 1360 because they were made in Spanish. He argues that the evidence shows that J.H. admitted that he did not speak Spanish and, therefore, J.H.'s statements were based on speculation or inference.
Hernandez presents several lines of argument in support of his contention that the statements were improperly admitted under Evidence Code section 1360. He claims that J.H. lacked personal knowledge as required under Evidence Code section 702, that based on that lack of knowledge there was insufficient foundation for the evidence to be provided to the jury, that J.H.'s other statements during the interview were inaccurate and exaggerated, indicating that the statements as to what Hernandez said were mere speculation, and that child witnesses like J.H. are more open to suggestion, altering his ability to accurately recall the events.
The People contend that the claims are waived as Hernandez did not specifically raise such ground in his objections at trial and, regardless, the evidence was properly admitted at trial.
a. Relevant Facts
Four days after the incident, J.H. was interviewed. After J.H. testified at trial, the prosecution moved a recording of the interview into evidence. The trial court found that the "time, content, and the circumstances of this statement provide indicia of reliability" and allowed the tape to be played to the jury in its entirety. In reviewing the taped conversation, the trial court noted that J.H. answered questions in detail regarding the circumstances surrounding his mother's death without prompting and that his descriptions of the events were made in an age appropriate manner.
Defense counsel stipulated at trial that parts of the tape containing prior inconsistent statements should be admitted, but that the remainder of the tape would be cumulative in light of J.H.'s testimony. The court denied the objection and allowed the tape to be played in its entirety. At no time during the discussion of admitting the tapes did the parties discuss J.H.'s proficiency in the Spanish language or his ability to understand Hernandez.
The relevant parts of the interview that Hernandez claims were improperly admitted discussed Hernandez's statements to J.H. during the stabbing:
"[J.H.]: I was, I was (inaudible) I was in my bed and my dad told me to get out.
"[Q]: Your dad told you to get out[?]
"[J.H.]: 'Cause he was gonna kill mom.
"[Q]: How did you know that?
"[J.H.]: I heard him.
"[Q]: You heard him. What did he say?
"[J.H.]: He said get out (inaudible) because umm (inaudible) because he said I'm gonna kill mom in, in Spanish.
"[Q]: He said it in Spanish?
"[J.H.]: 'Cause he, 'cause he doesn't talk English.
"[Q]: Oh he doesn't talk English. Did he say it in Spanish to you?
"[J.H.]: I know what he means.
"[Q]: You know what it means. What was it, what was it that he said? I mean in Spanish.
"[J.H.]: I don't talk Spanish.
"[Q]: You don't talk Spanish[?]
"[J.H.]: I don't know all.
"[Q]: Okay, okay. So what, what part about that when he said that how, how did you know that that's what he was saying, that he was gonna kill your mom? [¶] ... [¶]
"[J.H.]: (Inaudible) like he said umm he said like, like he told me get out because, because he's gonna kill my mom and then when once I'd get out he starts st-..., he (inaudible) he barely starts stabbing her when he told me to get out and she was all crying and then and then when a, when a, uh grownup comes umm she, she died."
At trial, J.H. testified to the same events, but did not recall Hernandez stating that he was going to kill his mom. Rather, he only testified that Hernandez told him to leave:
"Q. Were you in your bed?
"A. Yeah, but this time I stand up, and then my dad told me to get out of there. He started stabbing her. [¶] ... [¶]
"Q. And then did he start doing something with the knife or did he talk to you first?
"A. He just told me to get out of here, and then he started doing it. [¶] ... [¶]
"Q. So he told you to get out?
"A. Yeah.
"Q. Did he tell you anything else?
"A. No."
During J.H.'s direct testimony at trial, Hernandez did not present any objection or question J.H. further regarding his ability to understand or speak Spanish.
b. Legal Framework
Evidence Code section 1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child's statements describing acts of child abuse or neglect. (People v. Brodit (1998) 61 Cal.App.4th 1312, 1327 (Brodit).) Section 1360 safeguards the reliability of a child's hearsay statements by requiring that: (1) the court find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements; and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement. (People v. Eccleston (2001) 89 Cal.App.4th 436, 444-445; People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367 (Roberto V.); Brodit, supra, at p. 1329.) We review a trial court's admission of evidence under Evidence Code section 1360 for abuse of discretion. (Roberto V., supra, at p. 1367; Brodit, supra, at p. 1330.)
A trial court has "broad discretion" in determining whether a party has established the foundational requirements for application of a hearsay exception. (People v. Martinez (2000) 22 Cal.4th 106, 120; accord, People v. Pirwani (2004) 119 Cal.App.4th 770, 788.) The California Supreme Court has identified the following nonexhaustive list of factors as being relevant to the reliability of hearsay statements made by a child witness in a sexual abuse case: (1) spontaneity and consistent repetition; (2) the declarant's mental state; (3) use of terminology unexpected of a child of a similar age; (4) lack of motive to fabricate; and (5) the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity. (In re Cindy L. (1997) 17 Cal.4th 15, 29-30; accord, Idaho v. Wright (1990) 497 U.S. 805, 821-822, abrogated in part by Crawford v. Washington (2004) 541 U.S. 36, 60-62.).)
c. Analysis
Hernandez contends that due to J.H's alleged inability to understand Spanish, his statements were unreliable and should not have been admitted.
Hernandez failed to object on this particular basis at trial and the claim is forfeited on appeal. The general rule in California is that "trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 756; accord, People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214, abrogated in part on other grounds in People v. Rangel, supra, 62 Cal.4th at pp. 1215-1216.) Under Evidence Code section 353, subdivision (a), a reviewing court cannot grant relief on a claim that evidence was erroneously admitted unless a timely objection was made "and so stated as to make clear the specific ground of the objection or motion." "'What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.'" (People v. Geier (2007) 41 Cal.4th 555, 609.)
When provided an opportunity to object to playing the recorded interview of J.H., Hernandez only objected that the testimony was cumulative. He did not present any specific argument as to J.H.'s lack of personal knowledge regarding his ability to comprehend the statements made by Hernandez. Nor did Hernandez argue that J.H. lacked personal knowledge under Evidence Code section 702 based on his inability to speak Spanish. Therefore, there is no fully informed ruling from the trial court on these claims. As described above, there was some discussion during J.H.'s taped interview regarding his ability to speak or comprehend Spanish. J.H. stated that he did not speak Spanish, but he nevertheless could understand what Hernandez said. Had Hernandez presented objections to J.H.'s ability to understand Spanish, the trial court could have developed an appropriate record and issued a ruling specifically addressing the claim at issue. J.H. testified at trial, and there is no reason to believe that, if necessary, he was unavailable to be questioned regarding his personal knowledge of the Spanish language.
Further, the same evidentiary concerns would have been present with regard to J.H.'s statements made during direct testimony. At trial, J.H. testified that Hernandez told him to get out of the room as he started to stab Mejia. Hernandez did not raise objections based on lack of personal knowledge or hearsay to those comments. The fact that defense counsel did not object on lack of personal knowledge grounds to J.H.'s statements either during direct testimony or to the statements made during the interview confirms that trial counsel did not raise the ground of evidentiary error presented in this claim. (Dykes, supra, 46 Cal.4th at p. 756.) Having not presented challenges based on these evidentiary grounds at trial, the record is not properly developed, and Hernandez's evidentiary error claims are forfeited.
Even if the claims are not considered forfeited, Hernandez has not shown that the trial court abused its discretion based on the available evidence. First, the trial court reviewed the interview and found that based on a totality of the evidence surrounding the statements made, there was sufficient indicia of reliability as required by Evidence Code section 1360. (Brodit, supra, 61 Cal.App.4th at p. 1329.) The court noted that there was no evidence that J.H. was interviewed in a manner that was leading or that would suggest what answers were being sought. J.H. provided information regarding the stabbing without any prompting regarding the circumstances and events that occurred. The trial court noted that J.H. provided significant detail regarding the events that unfolded and that his responses were age appropriate. Based on the following, the trial court found the contents of the interview sufficiently reliable to be admissible under Evidence Code section 1360. If the trial court had concerns regarding the reliability of the statements, it did not mention them in its decision admitting the interview into evidence.
Further, the record does not clearly indicate that J.H. was unable to understand what Hernandez said. J.H. stated during the interview that he knew what Hernandez meant, although he did not speak Spanish. J.H.'s statement, "I don't know all," could be interpreted in several ways. It is possible he knew what Hernandez said despite not speaking Spanish, as his statement could be interpreted to mean that he was able to comprehend Spanish even though he was unable to speak the language. On the undeveloped record, we are unable to find that the trial court abused its discretion in finding the statements reliable and based on personal knowledge. The trial court reviewed the interview of J.H. and was in a position to determine from his statements whether J.H. understood what Hernandez stated in Spanish. The trial judge mentioned other details from the interview that provided indicia of reliability. The absence of any mention from the trial court that J.H. lacked personal knowledge as to the statements made by Hernandez creates a strong inference that the court found that J.H. understood Hernandez and, therefore, had personal knowledge of what Hernandez said based on his personal observations. (People v. Rodriguez (2014) 58 Cal.4th 587, 631 [testimony is not speculative and the court did not abuse discretion in permitting testimony based on the witnesses' personal observations].)
Next, Hernandez argues that J.H.'s statements as to what Hernandez said were not reliable because many of the other statements made by J.H. in the interview were not accurate. Hernandez contends that J.H. made statements regarding Mejia being stabbed everywhere, including her heart, and that Hernandez cut himself in the bathroom with a wire prior to stabbing Mejia. He argues that memory of child witnesses, such as J.H., can be influenced by events occurring after the event, thereby augmenting and making his testimony unreliable. Once again, these arguments were not raised by trial counsel and we lack a developed record to review. Despite any inconsistencies in J.H.'s testimony, or his unartful description of the events that took place, the trial court found his testimony sufficiently reliable to be admitted under Evidence Code section 1360. Based on his age and the traumatic nature of the events, inconsistencies in J.H.'s statements would not have served to show that they were so unreliable as to not be worthy of admission under Evidence Code section 1360.
Hernandez next argues that the statements were not admissible on alternative grounds, including as prior inconsistent statements or as a party admission. (Evid. Code, §§ 770, 791, 1220, 1235-1236.) The People claim that because Hernandez's claim of error under Evidence Code section 1360 fails, there is no need to address the other theories of admissibility raised by him. We agree. Further, as these grounds were not raised or addressed by the trial court, it is unclear what relief Hernandez seeks in presenting such challenges. Any review of these claims would be based on speculation.
Finally, even if the claims were not waived and there was error, Hernandez's claims that the admission of the evidence was prejudicial are without merit. Hernandez argues that the prosecution relied on J.H.'s recorded statements that Hernandez told him to get out of the room because he was going to kill Mejia to prove premeditation and intent to commit the murder. In reviewing the claim for prejudice, it is important to consider that J.H.'s statements at trial that Hernandez told him to get out of the room were properly admitted. Accordingly, the only additional testimony was the statement made by Hernandez that he was going to kill J.H.'s mom. There is not a reasonable probability that the result would have been different without statements from the interview. Even without the statements that he was going to kill Mejia, Hernandez's actions, particularly holding a knife behind his back and stabbing Mejia in an extremely critical area created an inference that he both deliberated and possessed the intent to kill. Even his statements to J.H. to get out of the room create an inference that he intended to take violent action against Mejia that he did not want J.H. to witness. The prosecution did rely on the statements made by J.H. that Hernandez said that he was going to kill Mejia to show premeditation and intent; however, other evidence was sufficient to prove the premeditated killing. This other evidence, including holding a knife behind his back, blocking Mejia's access to the door and pausing to think about killing Mejia was significant evidence to show premeditation and intent to kill. Even if the trial court erred in admitting the statements that Hernandez stated that he was going to kill Meija, it is not reasonably probable that the error might have contributed to the verdict and the error is harmless. (Watson, supra, 46 Cal.2d at p. 837; Roberto V., supra, 93 Cal.App.4th at p. 1373.) 5. Child Endangerment
Hernandez argues that if the claims were waived, counsel was ineffective for failing to object at trial to preserve the claims. Even if counsel was ineffective, Hernandez has not shown that the error was prejudicial for the same reasons set forth above. (Strickland, supra, 466 U.S. at p. 694.) --------
Hernandez asserts that there was insufficient evidence to support the conviction for direct child endangerment, and, in the alternative, asserts that the trial court erred in not sua sponte instructing the jury regarding an indirect theory of child endangerment.
a. Legal Standards
Section 273a, subdivision (b), provides: "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor." (See People v. Sargent (1999) 19 Cal.4th 1206, 1215 (Sargent).) Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct. (People v. Smith (1984) 35 Cal.3d 798, 806; accord, People v. Valdez (2002) 27 Cal.4th 778, 784 ["'"[T]he definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect."'"].)
When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. (People v. Valdez, supra, 27 Cal.4th at p. 786; Sargent, supra, 19 Cal.4th at pp. 1215-1216, 1222, 1224 [general criminal intent is the intent to do the proscribed act].) When that harm is indirectly inflicted, the requisite mental state is criminal negligence. (People v. Valdez, supra, at pp. 781, 786-791.)
With regard to a challenge of the sufficiency of the evidence on appeal, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Johnson, supra, 26 Cal.3d at p. 578.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
b. Relevant Facts
At trial, the prosecution only proceeded on a direct endangerment theory. The relevant jury instruction for misdemeanor child abuse under section 273a, subdivision (b), allows for instruction with four different grounds for abuse. (CALCRIM No. 823.) The prosecution requested, and the jury was instructed, on the following theory: "[T]hat: [¶] ... [t]he defendant willfully inflicted unjustifiable physical pain or mental suffering on a child." The jury was not provided with any instruction regarding Hernandez indirectly taking actions that would cause or permit J.H. to suffer harm.
However, in closing argument, the prosecution relied on language from the indirect theories of child endangerment to argue that Hernandez caused J.H. to endure mental suffering. Specifically, the prosecution stated:
"What do you know from the testimony? Well, [Hernandez] told [J.H.] that he was going to kill Mary his mother, and then he went and stabbed her right in front of [J.H.] And ... he caused the child, or permitted the child to suffer.... It almost seems too obvious to even argue this child witnessed his mother murdered in front of his eyes has mental suffering in front of his eyes. [Hernandez] is guilty of that." (Italics added.)
c. Analysis
Hernandez argues that the prosecution has attempted to erase any distinction between direct and indirect endangerment, and that there is not sufficient evidence to support a conviction based on direct endangerment.
The People admit that the prosecution relied exclusively on the theory of child endangerment based on directly inflicting emotional distress and, therefore, there was no error in instruction. Further, the People assert that there was sufficient evidence of direct infliction as Hernandez "was directing his unlawful conduct towards J.H., was directly inflicting mental suffering upon the child as he was attacking the mother, was acting willingly, and was actively engaged in directly inflicting mental suffering on the child contemporaneously with this attack on the mother." Finally, the People failed to address the prosecution's use of terms during closing argument relating to indirect theories of endangerment such as permitting the child to suffer.
The facts supporting the claim of child endangerment are the same underlying facts supporting the murder, and do not bear repeating here. Additionally, Hernandez readily acknowledges that the events were extremely traumatic and easily could have resulted in mental suffering by J.H. Even assuming that Hernandez's actions caused J.H. to suffer emotionally based on his action of stabbing Mejia, we must determine whether there is sufficient evidence that the harm was directly inflicted and if Hernandez had the requisite intent to commit the offense on J.H.
Hernandez contends the case is similar to People v. Burton (2006) 143 Cal.App.4th 447 (Burton). In Burton, the defendant attacked his girlfriend in the presence of their eight-year-old son, permanently disfiguring her face. (Id. at p. 451.) The defendant was charged under both the direct and indirect theories of child endangerment for the resulting mental suffering of his son that resulted from his physical attack of the child's mother. The court found that there was insufficient evidence of direct infliction based on the following reasoning:
"Here, there is no suggestion that [the] defendant intended to directly inflict suffering on his older son. As [the] defendant points out, his older son was not physically injured or threatened during the attack on [his girlfriend], nor was the minor near enough to be in danger of physical injury. The record suggests, as [the] defendant asserts, that the minor did not see the actual attack. Based on these facts, [the] defendant argues the attack did not occur in his older son's presence and was not directed at him. However, the minor was on the scene while the attack took place and witnessed its bloody immediate aftermath." (Burton, supra, 143 Cal.App.4th at p. 454.)
Like the defendant in Burton, the primary objective of Hernandez's actions was not to harm the observing bystander, but to injure the victim that was the focus of his physical attack. In addition to the primary result of the attack, which was the death of Mejia, it is probable that a secondary result was emotional trauma to J.H. To consider incidental or ancillary results of a physical attack as the basis of liability under a direct liability theory is untenable, and misconstrues the plain meaning of the term direct. "Direct" is legally defined as, "[i]mmediate; proximate; by the shortest course; without circuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect." (Black's Law Dict. (6th ed. 1990) p. 459.)
There are cases of direct child endangerment based on emotional trauma. In People v. Hamlin (2009) 170 Cal.App.4th 1412 at page 1443, the court found sufficient evidence of direct child endangerment where the defendant falsely told his children that their grandfather was a child molester and leader of a satanic cult and was threatening to kill the defendant and molest and kill the children. Compared to the instant case, the defendant in Hamlin intentionally made the comments directly to his children.
The People attempt to argue that both Mejia and J.H. were the direct victims of the attack, and that Hernandez was directly inflicting mental suffering on J.H. contemporaneously as he was attacking Mejia. However, the only action of Hernandez that was directed at J.H. was telling him to leave the room. The People do not elaborate on what actions Hernandez took while stabbing Mejia that would show he was contemporaneously attempting to inflict emotional suffering on J.H. One could conceive of such actions, such as preventing J.H. from leaving or forcing him to watch as Hernandez stabbed Mejia. But, as set forth ante, it appears that the mental suffering of J.H. was an indirect result of witnessing Hernandez's attack on Mejia.
Compounding the problem was the prosecution's statements during closing that could easily have created confusion with the jury and allowed them to convict based on an indirect theory of child endangerment. During closing statements, the prosecutor argued that stabbing Mejia in front of J.H. caused or permitted him to suffer emotionally, rather than directly inflicting the harm to J.H. Reviewing the record on appeal, we are not able to determine why the prosecution chose to only proceed on a direct theory of child endangerment, rather than argue direct and indirect endangerment in the alternative. There was significant evidence to support an indirect theory of child endangerment, especially in hindsight as Hernandez readily admits that his actions resulted in emotional suffering to J.H. Had the direct and indirect theories been presented to the jury in the alternative, the prosecution could have relied on the indirect theory if there was insufficient evidence of direct child endangerment. By only asserting a direct child endangerment theory, "the People pleaded themselves into an unnecessary corner." (People v. Mabini (2001) 92 Cal.App.4th 654, 658.) Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury. (McCormick v. United States (1991) 500 U.S. 257, 270, fn. 8.) We are bound to determine whether there was sufficient evidence to support a conviction of direct child endangerment as it was the only theory presented to the jury.
Reviewing the evidence presented in the light most favorable to the judgment, there is not substantial evidence to support a finding that Hernandez directly inflicted unjustifiable mental suffering on J.H. (Johnson, supra, 26 Cal.3d 557 at p. 578.) Hernandez did not direct his actions towards J.H., and J.H.'s mental suffering was a collateral effect of Hernandez's deadly assault on Mejia. There is no evidence, let alone substantial evidence presented that Hernandez took actions directly against J.H. to inflict mental suffering. The conviction for child endangerment cannot stand. (Chiarella v. United States (1980) 445 U.S. 222, 236 ["we cannot affirm a criminal conviction on the basis of a theory not presented to the jury"].)
Lastly, Hernandez contends that if the conviction is not reversed, the trial court erred in not sua sponte instructing the jury regarding the indirect infliction theories of child endangerment. However, in finding that the claim lacked sufficient evidence, double jeopardy bars a retrial. (Burks v. United States (1978) 437 U.S. 1, 15-18; People v. Seel (2004) 34 Cal.4th 535, 544.) Having provided Hernandez relief, his claim regarding instructional error with regard to the child endangerment charge is rendered moot. 6. Presentence Credits
In his final claim, Hernandez alleges that he was denied four days of presentence credits for the time spent in the hospital. After the incident, Hernandez was transported to the hospital and treated for his injuries. Hernandez contends that he was not free to leave the hospital and was guarded by law enforcement during his stay. Upon his release from the hospital, Kings County Sherriff's deputies arrested and transported Hernandez to the Kings County Jail. Hernandez requests 353 days of presentencing custody credits, rather than the 349 days provided by the court.
Hernandez misconstrues what amounts to custody for determining presentence credits. Section 2900.5, subdivision (a), provides, "when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant ... shall be credited upon his or her term of imprisonment ...." "The statute addresses a '"dual legislative purpose of 'eliminat[ing] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts' [citation] and equalizing the actual time served in custody for given offenses. [Citation.]"' [Citations.] This 'reflect[s] the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration.'" (People v. Ravaux (2006) 142 Cal.App.4th 914, 920 (Ravaux).) "The plain language of section 2900.5 addresses only residential custody arrangements and makes no mention of detention, seizure or arrest by the police as being the type of custody included in the calculation of custody credits.... It is clear from the plain language of the statute that custody credits are to be given for time spent within a residential detention facility, not for merely being in the custody of police." (Id. at pp. 919-920.) "Being arrested and detained by the police, though certainly onerous, is not incarceration until the subject has been booked into jail." (Id. at p. 920.) Accordingly, "a defendant is not in custody within the meaning of section 2900.5 prior to being processed into a jail or similar custodial situation as described in section 2900.5, subdivision (a)." (Id. at p. 919.) "The crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected 'is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.'" (In re Watson (1977) 19 Cal.3d 646, 651; § 2900.5, subd. (b).)
Consistent with these standards, the trial court calculated Hernandez's presentence credits based on the date he was released from the hospital and arrested and booked into jail. The time spent in the hospital does not constitute custody under section 2900.5 as Hernandez had not been arrested and booked. The police did not confine him in the hospital. He was there to receive treatment for his self-inflicted wounds and his time in the hospital was not attributable to the charges for which he was convicted. (People v. Mendez (2007) 151 Cal.App.4th 861, 865 ["the defendant would have spent time in the facility irrespective of confinement on a current charge"].) Additionally, the fact that section 2900.5 lists hospitals as a type of facility in which a defendant can receive credit is not dispositive. Read in context, hospitals were listed in the statue of the one of many "similar residential institution[s]" in which a defendant would receive custody credit. (§ 2900.5, subd. (a).) It stands to reason that hospitals referred to in the statute are state facilities created to house inmates and detainees rather than general medical facilities. (People v. Pottorff (1996) 47 Cal.App.4th 1709, 1719 ["Through enactment of [section 2900.5] and its amendments, 'the Legislature addressed situations where defendants were confined to a facility (be it penal or rehabilitative) by court order.'"].)
The fact that one or more sheriff's deputies were present at the hospital does not establish that Hernandez was in custody under section 2900.5. Distinctions exist between the definition of custody to establish the right to receive warnings under Miranda v. Arizona (1966) 384 U.S. 436, and for determining custody credits at sentencing. Under Miranda, a person is in custody if a reasonable person in the same situation would believe the degree of the restraints on his or her movement were those associated with formal arrest. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, fn. 1.) That definition of custody, however, "is not compatible with the language or the purpose of [section 2900.5]. The custodial interrogation situations Miranda was meant to address are radically different than the type of residential custody that is the subject of section 2900.5. In Miranda custody was defined so that suspects who are detained by police for questioning would be advised of their rights. Section 2900.5 defines custody so that those who are incarcerated receive credit for the time they serve. Applying the Miranda standard in this context does not further the policy advanced in either." (Ravaux, supra, 142 Cal.App.4th at p. 921.) Even if the presence of law enforcement at the hospital was sufficient to invoke custodial interrogation protections under Miranda, appellant is not entitled to custodial credits for that time.
"[T]he booking of a suspect into jail represents a bright line for trial courts to begin counting credits." (Ravaux, supra, 142 Cal.App.4th at p. 921.) In contrast, the alternative would create ambiguity by virtue of a court having to review in detail the circumstances surrounding the detention of a defendant in order to determine at what time or times he was placed into custody and whether that custody was related to the offense for which he was convicted. "By contrast, the booking of a suspect into jail represents a bright line for trial courts to begin counting credits." (Ibid.) Hernandez is not entitled to an additional four days of custody credits.
DISPOSITION
The judgment as to the misdemeanor conviction of child endangerment is reversed and vacated. The judgment is otherwise affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
GOMES, J.