Opinion
E078498
11-16-2022
THE PEOPLE, Plaintiff and Respondent, v. CHARLIE STEVE HERNANDEZ, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF1406285. Emma C. Smith, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Charlie Steve Hernandez appeals from the trial court's denial of his request for diversion following a return on remittitur under Penal Codesection 1001.36. For the reasons forth post, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
STATEMENT OF THE CASE
A. PROCEDURAL HISTORY
On October 13, 2016, a jury convicted defendant of three counts of attempted, willful, deliberate, and premeditated murder under Penal Code sections 664 and 187, subdivision (a) (counts 1-3); assault with a firearm under Penal Code section 245, subdivision (a)(2) (count 4); possession of a short-barreled shotgun under Penal Code section 33215 (count 5); evading a marked police vehicle with willful and wanton disregard for the safety of persons and property under Vehicle Code section 2800.2 (count 6); unlawful driving or taking a vehicle under Vehicle Code section 10851, subdivision (a) (count 7); and two counts of misdemeanor resisting, delaying, and obstructing a peace officer under Penal Code section 148, subdivision (a)(1) (counts 8, 9). The jury also found the following firearm enhancements to be true: (1) Penal Code section 12022.53, subdivisions (c) and (d) for count 1; Penal Code section 12022.53, subdivision (b) for counts 2 and 3; and Penal Code section 12022.5, subdivision (a) for count 4.
On October 5, 2017, the trial court sentenced defendant to a 24-year determinate term, three consecutive life terms (seven years to life), and a consecutive term of 25 years to life.
On October 2, 2019, in an unpublished opinion, we conditionally reversed the judgment and remanded the case to the trial court to conduct a mental health diversion hearing under the guidelines set forth in section 1001.36. (People v. Hernandez (Oct. 2, 2019, E069364) [nonpub. opn.], at p. 25.) We also ordered the abstract of judgment to be corrected to reflect that the sentence on count 4 was stayed. (Ibid.)
The People filed a petition for review with the California Supreme Court, Case no. S258929. On December 11, 2019, the Supreme Court granted review and deferred further action pending consideration and disposition of a related issue in People v. Frahs, S252220. In People v. Frahs, the following two issues were presented: (1) whether section 1001.36 applies retroactively to all cases in which the judgment is not final; and (2) whether the Court of Appeal erred by remanding for a determination of the defendant's eligibility under section 1001.36. (See, People v. Frahs, S252220.)
On August 26, 2020, the Supreme Court dismissed case No. S258929: "Dismissed and remanded to Court of Appeal, Fourth Appellate Division Two. Review in the above-entitled matter, which was granted and held for People v. Frahs (2020) 9 Cal.5th 618, is hereby dismissed."
On August 28, 2020, we issued a remittitur in the direct appeal.
On or about March 3, 2021, criminal proceedings in this case were suspended when doubt was declared as to defendant's competency. On June 24, 2021, the parties submitted on the reports of Dr. Carmen and Dr. Berg. The court then found defendant competent and reinstated the criminal proceedings.
On June 29, 2021, the trial court appointed Dr. Valle to examine defendant under Evidence Code section 1017 and to provide a written report.
On October 26, 2021, defendant filed a "prima facie showing of his eligibility for mental health diversion pursuant to Penal Code section 1001.36," (all caps. and boldface omitted) which included a report by Dr. Valle dated September 26, 2021, regarding the doctor's evaluation of defendant. On November 4, 2021, the People filed an opposition, to which defendant replied the following day.
On November 9, 2021, the trial court indicated that it had read the papers filed by the parties, and had met in chambers with counsel. The court found that defendant had met his burden with respect to proving prongs one and two, but it was reserving its ruling as to prong six, dangerousness, as well as to "the remaining prongs, and also to suitability," and referred the matter for a treatment plan.
At a hearing on February 8, 2022, the trial court stated that it had read and considered the papers filed by both parties, the proposed treatment plan submitted by Behavioral Health, and documents filed by the People regarding a case filed in Orange County involving defendant. After argument, the trial court found that defendant was not suitable for mental health diversion. The court explained:
"I have reviewed everything, I cannot find that [defendant] is suitable for Mental Health Diversion. There is no treatment plan that I could contemplate that would satisfy the Court's needs in terms of the amount of supervision that would be required under Mental Health Diversion. However, I did review the plan and believe that RUHS Behavioral Health has formulated the most intensive treatment plan that they could possibly formulate, including Residential Recovery Residence, which is a sober living environment thereafter and an ongoing treatment. So it's my belief that they did everything they could to develop a treatment plan. It is still not suitable; the underlying offenses in this instance, I do not find to be suitable. [¶] I agree with [defense counsel], he is not precluded in terms of the Penal Code Section alleged ultimately under which [defendant] suffered a conviction; however, there were three of them. The incidents involved that were alleged and ultimately he was convicted of do appear to this Court to constitute dangerousness as contemplated by the Code and further supported by case law. But I agree with you. So I'm going to deny based on eligibility and suitability at this time."
On February 8, 2022, defendant filed a notice of appeal from the "Denial of PC 1001.36 Diversion following return on remittitur." On February 9, 2022, an amended abstract of judgment was filed.
The facts are taken from this court's unpublished opinion in defendant's direct appeal, People v. Hernandez, case No. E069364.
"1. COUNT 7: VEHICLE THEFT
"On December 11, 2014, Michael McCarty lived on Landin Lane in Riverside. He came outside of his home that morning around 5:00 a.m. and discovered that his white Jeep Cherokee with grey interior had been stolen. McCarty kept the spare keys in a small compartment inside the vehicle. On December 27, 2014, he was contacted by the Riverside Police Department and advised that his Cherokee had been found. When McCarty was given back the Cherokee, the license plates were inside and there were several items missing. He did not keep firearms or a ski mask in the Cherokee.
"2. COUNTS 1 THROUGH 6: ATTEMPTED MURDERS, ASSAULT WITH A FIREARM AND POSSESSION OF A SHORT-BARRELED SHOTGUN
"At approximately 5:30 a.m. on December 26, 2014, Jose Silva was in his truck, which was parked on the street in front of his house in Riverside; he was getting ready to drive to work. He observed headlights approaching him. The vehicle, which he described as a white or gray Jeep Cherokee, stopped near the driver's side of his vehicle. The driver of the Cherokee exited the vehicle carrying a sawed-off shotgun. He came to Silva's driver's side door. The person was wearing a dark-colored sweatshirt with a hood and a ski mask. The person lifted the gun and Silva heard a 'click.' The shotgun was aimed at his head; it sounded like defendant had pulled the trigger. The person lowered the gun, appeared to cock the gun, and then pointed it at Silva a second time. Silva did not hear any noise and the gun did not fire. The person jumped back into the Cherokee and drove away. Silva followed the Cherokee to get a license plate number but it had no plates. Silva's wife called the police two hours after the incident.
"On December 26, Alfredo Diaz was living on Geranium Place in Riverside. He got into his truck, which was parked in his driveway facing the street, around 5:45 a.m. and intended to drive out of his driveway. He observed a white Cherokee pull up and partially block his driveway. A man exited the driver's side of the Cherokee and ran up the driveway pointing a sawed-off, double-barrel shotgun at Diaz. The man was wearing a ski mask. He was holding the shotgun with two hands. He was rapidly approaching Diaz's vehicle. Diaz drove over the curb and fled. After a few blocks, he remembered his family was in the house and returned. The Cherokee was gone. Diaz did not want to call the police because he did not want any problems, but his children convinced him to call the police several hours later.
"Arturo Conde was working at the Cardenas Market located at Van Buren Boulevard and Arlington Avenue in Riverside on December 26. Around 6:00 a.m., he was outside the back of the store collecting plastic recyclables. He saw a white Cherokee pull up to within 38 feet of him. He went back to his work. The man in the Cherokee, who Conde identified as defendant, said something to him but Conde did not understand him. He looked up and saw that defendant had something in his hand. He then heard a gunshot and a flash coming from defendant, who was now 20 feet from him. Defendant was pointing a gun at Conde's head.
"Conde fell down thinking he may have been shot. He got back up and observed defendant 'bending' the weapon. Conde got up and asked defendant why he was shooting at him. Defendant did not answer and he kept the gun pointed at Conde. Conde ran and fell down again. He heard another gunshot. He was not hit by either gunshot. He was able to get inside the store. Conde described the weapon as a shotgun.
"Conde indicated that defendant was wearing a sweater or a sweatshirt. He was wearing brown or beige pants. He had jeans on under the pants. His face was not completely covered but his sweater was pulled up over his chin and he had a beanie that was pulled down over his hairline. The Cherokee had no license plates.
"One of Conde's coworkers, and another person sitting in her car in the parking lot at the Cardenas Market, observed the Cherokee and a man shooting at Conde. One of them described the gun as a long gun, and the other a shotgun. The Cherokee had no license plates.
"Riverside Police Officer James Payne was working patrol on December 26 and responded to the Cardenas Market. Later during his patrol, at around 11:30 p.m., he observed a white Cherokee with no license plates. Officer Payne drove behind the Cherokee, which took off at a high rate of speed. Officer Payne activated his overhead lights when the Cherokee, later determined to be driven by defendant, ran a stop sign. Defendant continued to run stop signs and drove through a park, driving on the grass and over curbs. He went the wrong way down a street then traveled over the median to the correct lane. Defendant was driving between 70 to 80 miles per hour on surface streets. Defendant turned down a street and stopped the Cherokee. Officer Payne pulled out his gun and ordered defendant to stop. Defendant jumped over a fence and ran into a backyard.
"A police dog was sent to locate defendant. The dog found defendant behind an air conditioning unit and attempted to drag defendant from his hiding place. Defendant was wearing grey sweatpants over jeans and a grey sweatshirt with a hood. Defendant yelled at the officers to 'get the fuck away' from him. He told the officers that he was going to kill them if they did not get away from him. Defendant was bleeding from the police dog biting him but did not want medical attention. Defendant was transported to the hospital. He had to be restrained because of his violent behavior. Defendant was released from the hospital and taken to the police station. Once there, defendant had to be restrained by several officers.
"The Cherokee was searched. The license plates were inside the vehicle. Spent shotgun shell casings were also found in the vehicle; one round of ammunition appeared to have been used but did not fire. A blue bandana was found. A .410-caliber shotgun was found under the rear passenger's seat. A double-barrel sawed-off shotgun was found on the floorboard of the passenger's side of the Cherokee. Live shells were in the shotgun. Marijuana was found on the floorboard of the driver's seat. Fingerprints taken from the Cherokee matched defendant. Fingerprints on the sawed-off shotgun found in the Cherokee matched defendant. Underneath the rear passenger seat, a beanie with cutout eyeholes was found.
"Conde was taken to the location where defendant had been apprehended. Conde identified the Cherokee as the same vehicle that had been involved in his shooting. He also identified a weapon found in the Cherokee as one used to shoot at him. Conde was taken to the hospital for an in-field lineup. He was outside defendant's room and heard defendant talking. Conde got scared and said it was the same voice as the person who shot him and he did not want to go into the room to identify defendant. He was shown the clothes worn by defendant at the time of defendant's arrest; Conde identified them as the clothes worn by the shooter. In court, Conde identified defendant and stated he would never forget defendant's face. After the shooting, Conde had trouble hearing out of his left ear and his left knee was injured. He still could not walk well and used a cane.
"Diaz was also taken to the area where defendant had been apprehended. Diaz told police the Cherokee was the same make and model as the vehicle that drove up to his house. He was shown a shotgun on the passenger's side floorboard of the Cherokee; it was similar to the one used against him. He also stated that defendant had the same build as the person who approached him, but since the assailant was wearing a mask, he could no identify his face.
"Silva was taken to view the Cherokee and identified it as being the same as the one involved in the incident at his house. He also recognized the sawed-off shotgun that was on the floorboard of the passenger's seat. He was taken to the hospital and recognized a sweatshirt and pants shown to him as belonging to the shooter."
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:
1. "Did the superior court abuse its discretion by finding appellant was not eligible for mental health diversion because he would pose an unreasonable risk of danger to public safety if treated in the community?"
2. "Was appellant denied his state and federal constitutional right to effective assistance of counsel with regard to the remanded proceedings to determine his eligibility for mental health diversion?"
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We are satisfied that defendant's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Id. at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., SLOUGH J.