Opinion
E052031 Super.Ct.No. RIF140378
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER HERNANDEZ, Defendant and Appellant.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Ronald A. Jakob, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Francisco Javier Hernandez of first degree murder (Pen. Code, § 187, subd. (a)) and found true an allegation that defendant personally used a deadly weapon (§§ 12022(b)(1), 1192.7(c)(23)). The court sentenced defendant to an indeterminate term of 25 years to life on count 1 and a determinate, consecutive year on the personal use enhancement. On appeal, defendant contends insufficient evidence supports the jury's finding that defendant's commission of the murder was willful, deliberate, and premeditated. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
In November 2007, Homero Mota was homeless; he had been living on the east side area of Riverside for approximately two months. Mota met the victim on November 24, 2007, at the bus station downtown where the victim had been dropped off; the victim had no money to get home to Hemet. Mota befriended the victim, teaching him how to make money by recycling cans and bottles so he could eventually raise enough money to get home. He also told the victim he knew a place they could camp out overnight, dubbed "[T]he [S]pot." The Spot was a fenced-in yard adjacent to a church, where there were several abandoned pews and an abandoned van. Mota and the victim slept there the night of November 26, 2007.
On November 27, 2007, Mota and the victim went out, collected cans and bottles, turned them in at a recycling center, bought beers, and went to the local park. Defendant was sitting at one of the tables with several other younger individuals. Mota had previously seen defendant both at the park and at The Spot. Defendant was a "youngster," a member of a group of young locals who kept to themselves; Mota was a member of the older generation who likewise kept to themselves: "To us, anybody younger than us were youngsters. We're in our late 40s at the time." Mota overheard defendant boasting that he had a knife strapped to his wrist.
Mota and the victim later made their way to The Spot where they intended to spend the night. They were met outside by Vicente, an older homeless man who ran The Spot. Vicente told them not to go into the yard because there were already two guys and two girls inside. Vicente had been complaining about the presence of minors using drugs in The Spot; defendant was one of those against whom he had such complaints. Vicente "had already chastised the defendant and his brother and had asked him to leave, because they had overstayed their welcome." The pastor of the church had given a man named Sergio permission to stay at The Spot. Sergio had also confronted the youngsters about smoking pot and bringing girls into the yard. Sergio was worried the police would believe the adults had supplied the minors with drugs. Vicente was worried the presence of minors using drugs would draw attention to the area and result in everyone being asked to leave. Thus, there was tension and friction between the youngsters and the older homeless staying at The Spot.
Approximately 30 minutes to one hour after they arrived, Mota saw two girls leave the church yard. He and the victim then entered the yard through a hole in the fence. They sat down in one of the pews and drank their 40-ounce beers. Defendant and at least one other individual were inside the abandoned van. Later, defendant and his brother walked by them; the victim asked to buy a cigarette from one of them but they ignored him.
The pastor of the church came outside and informed Mota and the victim that they could not be smoking and drinking in the churchyard; he gave them five minutes to leave. Mota and the victim left through the hole in the fence. The victim stopped to tie his shoes; Mota was approximately 10 to 15 feet away from him. Defendant came up behind the victim and appeared to punch him in a downward motion twice in the back. Defendant then went back into the yard through the hole in the fence. The victim asked "'Why? What did I do to you?'"
Mota told the victim they should leave. The victim staggered toward him. Defendant then came back through the hole in the fence and walked toward the victim again. Mota told the victim to watch his back. The victim asked defendant "'Why are you doing this?'" Defendant then grabbed the victim and slung him to the ground. The victim asked "'What have I done?'" Defendant kicked him in the chin. The victim looked as if he had been knocked unconscious; he was laying prostrate on the ground with his arms splayed out. Defendant squatted next to the victim and hit him in the chest three times; that was the first time Mota noticed the "glint" of a knife: "I figured he was stabbing him." The blade of the knife appeared to be about eight-inches long. Defendant then started dragging the victim's body away.
Mota left to look for Vicente at a nearby fast food restaurant, where he informed him that one of the youngsters had stabbed the victim. At Vicente's urging, Mota called 911; Vicente gave Mota all defendant's information including his name and his mother's and father's names so Mota could relay it to the police. Mota returned to The Spot. The victim's body was not where it was when he had left; rather, it was up a little further in a little wooded area. Sometime later, at an in-field identification, Mota indicated defendant was the person who had attacked the victim.
During an interrogation the next morning, defendant's brother, Victor, informed officers that defendant had been smoking speed on the day of the murder. Defendant had a knife; after the attack Victor took it from him. He wrapped up the knife and placed it in his father's car.
Detective James Brandt was assigned to investigate the case. A search of defendant's father's car turned up a knife wrapped in a white cloth. Detective Brandt interviewed defendant the next morning. Defendant admitted kicking defendant and stabbing him three times. Defendant informed Detective Brandt that Victor took the knife from him and put it in the car.
Mark Fajardo, a forensic pathologist, testified that he conducted an autopsy of the victim's body. The victim had sustained two exterior stab wounds to the back and one to the abdomen. One of the back wounds entered the chest cavity and nicked the victim's aorta; the left side of his chest was filled with one and one-half liters of blood. The second back wound hit the victim's spine. The wound to the abdomen injured the victim's pancreas. Fajardo determined the cause of death was multiple stab wounds to the victim's torso.
Mey Tann, a senior criminalist for the California Department of Justice, testified that she conducted a DNA analysis comparing blood samples obtained from the victim and the knife. The samples matched.
Defendant's girlfriend testified defendant used methamphetamine. When he did so, he became "demonic" and abusive. However, when defendant came home after the murder, he appeared less high than usual; defendant was affectionate with her. Dr. Robert Leark, a professor of forensic psychology and a forensic neuropsychologist, evaluated defendant. Dr. Leark determined that defendant performed below average in cognitive ability, scoring slightly above mental retardation in the intellectual range, and below average in executive functioning. He testified that having that level of impairment could affect an individual's ability to "reflect on their activity before they take it." Dr. Leark further testified that methamphetamine use would even further impair such a user's brain function.
DISCUSSION
Defendant maintains the People adduced insufficient evidence that defendant's killing of the victim was willful, deliberate, and premeditated. We disagree.
"When a defendant challenges the sufficiency of the evidence, '"[t]he court 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." [Citation.]' [Citations.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We '"'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" [Citation.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 942-943.)
Murder is defined as "the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [¶] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought." (§ 188.) "All murder which is perpetrated . . . by any . . . kind of willful, deliberate, and premeditated killing . . . is murder of the first degree. All other kinds of murders are of the second degree. [¶] . . . [¶] To prove the killing was 'deliberate and premeditated,' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (§ 189.)
"'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.] '"Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'" [Citation.]' [Citations.]" (People v. Solomon (2010) 49 Cal.4th 792, 812.) "[A] killing resulting from preexisting reflection, of any duration, is readily distinguishable from a killing based on unconsidered or rash impulse. [Citation.]" ( Id. at p. 813.)
"Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially. [Citations.] Consequently, a defendant's actions leading up to the crime may be relevant to prove his or her mental state and intentions at the time of the crime. [Citations.]" (People v. Thomas (2011) 52 Cal.4th 336, 355 [defendant convicted of first degree murder, attempted murder, and second degree murder]; People v. Smith (2005) 37 Cal.4th 733, 741 [defendant convicted of two counts of attempted murder].)
Here, substantial evidence supported defendant's conviction for first degree murder. The manner in which the killing occurred, the events leading up to it, and defendant's statements made thereafter provided ample support for the jury's determination that defendant's act was willful, deliberate, and premeditated. After the pastor told Mota and the victim to leave, the victim had sufficient time to pack up his things and exit through the hole in the fence prior to being attacked by defendant. Defendant waited until the victim was in a compromised position, squatting to tie his shoes with his back to defendant, before attacking him. Moreover, defendant used a folding knife, which required that he unfold the blade and lock it in place prior to using it against the victim. Mota testified defendant looked "determined" as he attacked the victim. After initially attacking the victim, defendant withdrew through the hole in the fence into the churchyard. When defendant saw the victim was still alive, he returned through the hole in the fence, threw the victim to the ground, kicked him, and stabbed him again, inferentially "finishing the job." Thus, the mode of the killing supports the jury's determination that rather than simply an impulsive reaction to some perceived provocation, defendant reflected upon his act, however quickly, before initiating and then completing it.
Defendant focuses on motive, suggesting his lack of a reason to kill the victim is strongly supportive if not, dispositive, of a determination he did not reflect upon the act. However, defendant's focus on motive is both legally irrelevant and contradicted by the record: "[M]otive is not an element of the crime [citation], and a motive to kill a class of people would be probative even if the selected victim is a stranger [citation]." (People v. Solomon, supra, 49 Cal.4th at p. 816.) Thus, defendant's frequent protestations to law enforcement that he did not know why he attacked the victim are irrelevant for purposes of determining whether his act was willful, premeditated, and deliberate. Moreover, there was ample evidence here that defendant did have a motive to kill the victim. First, while there was testimony defendant did not even know the victim, ample evidence was adduced that defendant knew the victim belonged to a group of individuals (the older homeless) against whom defendant bore a grudge. The youngsters and elder homeless were two disparate groups that did not commingle and between which there had been recent "static" and "tension." Both Sergio and Vicente, members of the elder group, had already asked defendant and Victor, members of the youngsters, to leave The Spot and not return. The youngsters took offense to this request. Thus, defendant's motive in killing the victim could have been to avenge himself against the group of elders for attempting to banish him from The Spot. Indeed, Mota's testimony the victim essentially paid tribute to the youngsters by placing a beer on their table at the park earlier that day could be viewed as an unsuccessful attempt by the victim to de-escalate the tension between the groups.
Second, Victor told the police he saw the victim "talking smack" to defendant on the date of the incident; prior to the Pastor's request that the victim leave The Spot, defendant and the victim engaged in a hostile verbal exchange. During that conversation, the victim gave defendant "the hand." Defendant told the police the victim was a clown, who disrespected him, and looked at him wrong. Thus, defendant's motive for killing the victim could very well have been personal.
Third and finally, defendant himself suggested the reason he killed the victim was because he was kicked out of The Spot due to the victim's drinking:
"[Defendant]: He caused problems sir.
"[Brandt]: The pastor came out, right?
"[Defendant]: Yes sir.
"[Brandt]: [Bec]ause that guy was drinking.
"[Defendant]: Yes sir.
"[Brandt]: Alright, and told everybody they had to leave. Right?
"[Defendant]: Yes sir.
"[Brandt]: [Bec]ause they were drinking back there.
"[Defendant]: Yes sir.
"[Brandt]: And that was your spot.
"[Defendant]: Yes sir.
"[Brandt]: And you guys would just kick back and no one would bug you [be]cause no one knows you're back there.
"[Defendant]: You said it sir."
Mota told police he believed defendant was motivated to kill the victim because the youngsters were kicked out due to the victim's drinking. Thus, defendant's motive in killing the victim could have been in retribution for causing defendant to be expelled from the churchyard. Whether defendant's motive was any or all of the above, the evidence was probative and sufficient to support the jury's determination of premeditation and deliberation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.