Opinion
D073859
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. PABLO HERNANDEZ, JR., Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1305608) APPEAL from a judgment of the Superior Court of San Bernardino County, Dwight W. Moore, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Pablo Hernandez, Jr. guilty of one count of second degree murder (Pen. Code, § 187, subd. (a)), one count of attempted murder (§§ 187, subd. (a), 664), and one count of misdemeanor child endangerment (§ 273a, subd. (b)). As to the murder and attempted murder counts, the jury further found that Hernandez personally used a dangerous or deadly weapon. (§ 12022, subd. (b)(1).) The trial court sentenced Hernandez to prison for an 11-year determinate term followed by an indeterminate term of 15 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The sole argument Hernandez raises on appeal is a challenge to the jury instruction on voluntary intoxication. Specifically, he contends that the trial court should have instructed the jury that voluntary intoxication may be considered in determining whether Hernandez acted in imperfect self-defense. As Hernandez's position is foreclosed by our Supreme Court's recent opinion in People v. Soto (2018) 4 Cal.5th 968 (Soto), we conclude that the appeal lacks merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of December 28, 2013, Hernandez kicked in his mother's bedroom door and killed her by stabbing her numerous times all over her body and suffocating her with a drawer from a dresser that he placed over her face and chest. As Hernandez was exiting the bedroom, his sister arrived home, and Hernandez attacked her with a knife. After Hernandez stabbed his sister in the neck several times, the knife blade broke off in her neck, and she was able to flee to a neighbor's house.
Hernandez took his sister's one-year-old child with him outside of the house, threw the child into the bed of a passing pick-up truck and hopped into the truck himself. The driver of the truck turned in Hernandez to the police officers who had already arrived on the street, and Hernandez was taken into custody.
Hernandez told the police that he was a methamphetamine user, and he killed his mother because she had turned into a monster and was going to hurt him. He also stated that his sister was the devil, and the women in his family were possessed.
A sample of Hernandez's blood taken the morning of his arrest was positive for methamphetamine, amphetamine and cannabinoids. The jury heard testimony that, among other things, methamphetamine can cause paranoia, delusions, psychosis and pseudo-hallucinations. A psychologist who evaluated Hernandez concluded that at the time of the stabbings, Hernandez was psychotic, experiencing delusions and was in an irrational and unstable mental state, with his methamphetamine use being the likely cause of the psychosis.
Hernandez was charged with (1) first degree murder, along with a weapon-use allegation (count 1); (2) attempted murder, along with a weapon-use allegation, and an allegation that he acted with premeditation and deliberation (count 2); (3) kidnapping of the child (§§ 207, subd. (a), 208, subd. (b); count 3); and (4) felony child endangerment (§ 273a, subd. (a); count 4).
On the first count, the jury found Hernandez guilty of the lesser included offense of second degree murder (§ 187, subd. (a)) and made a true finding on the weapon-use allegation (§ 12022, subd. (b)(1)). On the second count, the jury found Hernandez guilty of attempted murder (§§ 187, subd. (a), 664) and made a true finding on the weapon-use allegation (§ 12022, subd. (b)(1)), but did not find that Hernandez acted with premeditation and deliberation. On the third count, the jury found Hernandez not guilty. On the fourth count, the jury found Hernandez guilty of the lesser included offense of misdemeanor child endangerment. (§ 273a, subd. (b).)
Hernandez was sentenced to prison for an 11-year determinate term followed by an indeterminate term of 15 years to life.
II.
DISCUSSION
The sole argument raised by Hernandez on appeal is a challenge to the jury instruction on voluntary intoxication pertaining to the murder and attempted murder counts.
On the issue of voluntary intoxication with respect to the murder and attempted murder counts, the jury was instructed with CALCRIM No. 625, as adapted for this case. As relevant here, the jury was informed, "As to Counts 1 and 2, you may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [¶] Voluntary intoxication may negate an element of the crime which must be proven by the prosecution. Voluntary intoxication may negate whether a person actually forms a required specific intent, premeditation, deliberation, or harbored express malice aforethought."
Hernandez contends that the instruction was erroneous because it "precluded the jury from considering evidence of voluntary intoxication in deciding whether defendant had an honest but unreasonable belief in the need for self-defense." As Hernandez argues, "[b]y statute, voluntary intoxication is admissible on the question whether the accused acted with express malice. Section 29.4 expressly provides that '[e]vidence of voluntary intoxication is admissible . . . on the issue of whether . . . the defendant . . . harbored express malice aforethought.' (§ 29.4.) Because imperfect self-defense is a component of malice, section 29.4 requires that voluntary intoxication may be considered in determining imperfect self-defense, that is, to decide if appellant may have actually but unreasonably held a belief that would preclude a finding of malice." According to Hernandez, in not allowing the jury to consider voluntary intoxication in assessing whether Hernandez acted in imperfect self-defense, the trial court deprived him of his rights to due process and a fair trial, to present a complete defense, and to a jury determination of guilt, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
The People contend that Hernandez has forfeited his ability to seek reversal based on the voluntary intoxication instruction because defense counsel did not object to it in the trial court. As the resolution of this appeal adverse to Hernandez is clearly required based on our Supreme Court's recent opinion in Soto, supra, 4 Cal.5th 968, we will, for the sake of judicial efficiency, decide this appeal based on the merits instead of entertaining the forfeiture issue. We note, moreover, that a defendant does not forfeit the right to obtain a reversal based on an instructional error when the defendant establishes that his substantial rights have been affected by the error. (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50, 64; People v. Franco (2009) 180 Cal.App.4th 713, 719.) Accordingly, even were we to consider the forfeiture issue, we would nevertheless be required to consider the merits to the extent of determining whether Hernandez's substantial rights were affected. --------
Hernandez's appellate briefing acknowledges that the legal issue presented in this appeal was pending before our Supreme Court. After the appellate briefing in this matter was complete, the Supreme Court decided Soto, supra, 4 Cal.5th 968, expressly rejecting the position that Hernandez advances.
In Soto, our Supreme Court held that ". . . CALCRIM No. 625 correctly permits the jury to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense." (Soto, supra, 4 Cal.5th at p. 970, italics added.) Examining the statutory language of section 29.4, subdivision (b), Soto concluded that "the statute is best understood as not allowing evidence of voluntary intoxication to establish unreasonable self-defense." (Soto, at p. 978, italics added.) Further, Soto stated that by examining the legislative history, "we can fairly discern a legislative intent not to permit evidence of voluntary intoxication to support a claim of unreasonable self-defense." (Soto, at p. 980.)
In sum, when expressly presented with the argument advanced by Hernandez in this appeal, namely that CALCRIM No. 625 is flawed because, pursuant to section 29.4, the jury should be permitted to consider voluntary intoxication when assessing whether the defendant acted in imperfect self-defense, Soto squarely rejected that argument. Therefore, we conclude that, based on Soto, Hernandez's challenge to CALRIM No. 625 is without merit.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: HALLER, Acting P. J. GUERRERO, J.