Opinion
B196877
8-29-2008
THE PEOPLE, Plaintiff and Respondent, v. ISAIAS HERNANDEZ, Defendant and Appellant.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Appellant Isaias Hernandez was convicted of first degree murder and the special circumstance allegation that he was engaged in kidnapping during the commission of the crime was found true. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(B).) He was also found guilty of one count of kidnapping; the special allegation that he inflicted great bodily injury was found true. (Pen. Code, §§ 207, subd. (a), 12022.7, subd. (a).) He was sentenced to life in prison without the possibility of parole on the special circumstance murder. Sentence was imposed and stayed as to the kidnapping count and the great bodily injury allegation. Hernandez claims the trial court erred in admitting evidence of: (1) a prior uncharged kidnapping and rape; (2) prior statements he made about how he could dispose of a body; and (3) statements made by the victim about her fear of him. Hernandez also contends the evidence was insufficient to support his conviction. We find no error and affirm.
FACTS
I. Prosecution Evidence
a. Evidence of Background, the Uncharged Crimes and the Victims Statements
In May 2005, Andrea A. ended a 10-year relationship with Hernandez. Soon afterwards, he arrived at her office unannounced with a loaded gun and a box of bullets. According to Andrea, he then forced her to leave with him at gunpoint. She drove them to an empty lot near his fathers house, where he told her he wanted to have sex with her one last time. He asked her to perform oral sex on him. Though she did not want to, she had both oral and vaginal sex with him because she was afraid he would shoot her. Afterwards, Hernandez began to cry because he was afraid he would go to jail for kidnapping and raping Andrea. He told her he was unhappy over their breakup and had been hearing voices.
We will refer to Andrea and her sister Mariann without reference to their last names, in light of the fact that Andrea was the victim of a sex crime.
Andrea continued to plead with him to unload the gun and he agreed to do so after about 40 minutes. She then convinced him to meet his father at a nearby restaurant and give him the gun. His father thought it was a toy and put it in his truck, but could not later find it for the police. Although Hernandez no longer had a gun, Andrea was unwilling to attempt escape until he was admitted to the hospital "where [she] knew that they were going to keep him, and then [she] could go to the police." Before arriving at the hospital, Hernandez and Andrea stopped for cash at a grocery store and then for something to eat at Sizzler. Andrea waited with Hernandez for a few hours before he was admitted to Huntington Hospital in Pasadena. She then called her sister, Mariann, to accompany her to report the rape. Hernandez pled guilty to the felony offense of possession of a firearm and was incarcerated for five months as a result. Hernandezs ex-wife later testified he admitted committing the crime to her.
After his release, Hernandez apologized for what he had done and reconciled with Andrea in October 2005. Andrea began to see him again "[b]ecause [she] felt like [she] had no other choice but to stay with him, because nothing was done to him after what he did to [her]." However, she kept the reconciliation from her family because she knew they would not approve. As a result, Andrea celebrated Thanksgiving with her family without Hernandez. He was upset about this when he went to her apartment after everyone had left and told her, "Fuck your fucking family, and fuck your fucking sister Marian[], too. I hate that bitch, because she took you to the police."
During this period, Hernandez also threatened to shoot Andreas ex-husband, Jose Fernandez, with whom she has two children, when he discovered Fernandezs car parked in front of her apartment building. On February 26, 2006, Hernandez saw Andrea with her ex-husband, who delivered something to his son at a store parking lot. Hernandez left a message on Andreas answering machine that day calling her a "fucking slut." Andrea was frightened by Hernandezs reaction and stayed with her ex-husband for a week to hide from him. Hernandez called her several times that week but she refused to return his calls. After she was told what happened, Mariann told some of her family members that she was afraid that Hernandez would "go after" their mother and Mariann herself in order to find Andrea.
b. Evidence Underlying the Charges
On March 6, 2006, Hernandez arrived unannounced at Marianns apartment at 9:30 in the morning to talk about Andrea. At approximately 10:45 a.m., Mariann called her other sister, Marcia, to ask for Andreas phone number. Because Marcia had instructed her family to have her paged at work only in case of emergency and because she thought Mariann knew Andreas phone number, Marcia became concerned and asked Mariann if everything was okay. Mariann responded, "No, I got to call Andrea." When Mariann reached Andrea, she told her she was with Hernandez and he wanted to speak to her. She cautioned Andrea not to go to the police but did not respond when Andrea asked if Hernandez had a gun. Hernandez accused Andrea of staying with Fernandez. Andrea drove to the police station while on the phone with Hernandez and continued to beg Hernandez to let Mariann go. He said he would if Andrea would meet him. She offered to meet him at the police station but he refused, believing he would be arrested.
Andrea then called Hernandezs father between 11:00 and 12:00 that morning and asked him to tell Hernandez to release Mariann. Hernandezs father told him, "If you have that young lady, take her back." Hernandez did not deny he had Mariann and told his father he would call him back. Andrea also called Fernandez and told him what had happened. Fernandez called Hernandez to ask him to release Mariann and offered to meet him alone. Hernandez refused and hung up on him.
Sometime after 11:00 a.m., Mariann called her work and told her coworker that she was taking care of a personal problem, but she would be at work later. Around noon, Mariann called her daughter Jennifer and said she was with Hernandez, "that he took her," and that they were driving on a freeway far away. No one has heard from or seen Mariann since.
Sometime in the late afternoon that day, Hernandez called his ex-wife and sounded upset. He told her he was "facing life" and would not see his son for a long time. At midnight that day, Hernandez used his company credit card in Las Vegas. Around 11:00 p.m. the next day, Hernandezs BMW was set on fire with a gasoline accelerant in Fontana. The car was destroyed, with "parts of the vehicle . . . melted down onto the floorboard."
Sometime over the next couple of days, Hernandez appeared at his friends house and stayed for two and a half days. Concerned that Hernandez was in trouble with the police, his friend asked him to leave. Hernandez then hid in his sisters backyard, where his father found him. He was arrested on March 15, 2006 after his father and sister called the police.
II. Defense Evidence
Hernandez testified on his own behalf and denied kidnapping or killing Mariann. He admitted meeting Mariann at her apartment, claimed they had coffee together, walked around the neighborhood and talked on the porch of a strangers home. He said they went their separate ways after their conversation. He then went to Las Vegas to start a new life but changed his mind after one night there.
He denied kidnapping or sexually assaulting Andrea, claimed he never told his ex-wife he had done so and said he did not know Mariann took Andrea to the police.
DISCUSSION
I. Admission of the Prior Act Evidence Was Not An Abuse of Discretion
Before trial, the prosecution moved to admit into evidence testimony of the uncharged kidnap and rape of Andrea under Evidence Code section 1101, subdivision (b). The trial court admitted the evidence, finding, "there is a definite, overwhelming and overriding tendency of the uncharged evidence to demonstrate the existence of . . . common plan, or scheme, motive, and lack of consent." Hernandez contends it was error to admit this evidence because: (1) it lacked probative value in a murder charge with no sexual component; (2) any similarities between the charged and uncharged conduct were too generic to constitute a distinctive plan; and (3) it was so inflammatory that exclusion was required under Evidence Code section 352.
All further references to section 1101 are to the Evidence Code.
Section 1101, subdivision (a) generally prohibits "evidence of a persons character or a trait of his or her character" when it is "offered to prove his or her conduct on a specified occasion." Section 1101, subdivision (b), however, carves an exception to this rule by admitting evidence "that a person committed a crime, civil wrong, or other act when [it is] relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
The propriety of admitting this evidence is reviewed by us for abuse of discretion. (People v. Carpenter (1997) 15 Cal.4th 312, 380.) We find the trial court acted well within its discretion to admit the uncharged evidence under section 1101, subdivision (b) to show Hernandezs motive, a common plan and the victims state of mind.
a. Motive
The trial court properly found that "[t]he earlier incident goes directly and dramatically to any motive that the defendant may have had in this case to have confronted the alleged victim, to have kidnapped her, and to have killed her." (§ 1101, subd. (b), see People v. Kipp (1998) 18 Cal.4th 349, 369.) Contrary to Hernandezs view that any similarities were too generic to constitute a distinctive plan, the least degree of similarity between the uncharged act and the charged offense is required in order to prove motive and intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) The probative value of uncharged act evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. (People v. Daniels (1991) 52 Cal.3d 815, 857; People v. Pertsoni (1985) 172 Cal.App.3d 369, 374 (Pertsoni).)
In Pertsoni, for example, the defendant was charged with shooting and killing a man who was thought to be an agent for the Yugoslav secret police. He claimed self-defense, but evidence was admitted of an uncharged prior act in which he shot at a man he believed to be the Yugoslav Ambassador. (Pertsoni, supra, 172 Cal.App.3d at pp. 372-373.) Though the acts were dissimilar in the circumstances of their commission, the other crimes evidence was held admissible to show the defendants motive of "passionate hatred of anyone connected with the Yugoslav government." (Id. at p. 374.) This motive was relevant to show the defendant acted "to kill an agent of the detested government, rather than to protect himself against a perceived danger." (Id. at p. 375.)
Likewise, evidence of the uncharged act was admissible here to show, as the court said, "the lengths [Hernandez] would go in terms of the use of force and violence and threat" in order to preserve and protect his relationship with Andrea. Viewed as motive evidence, the uncharged act linked the two events by showing that Hernandez had the same motive to kidnap and kill Mariann as he did to kidnap and rape Andrea—to force Andrea to talk to him and to preserve their relationship.
Hernandez contends the Supreme Courts opinion in People v. Guerrero (1976) 16 Cal.3d 719, stands for the proposition that "evidence of a prior sexual assault is inadmissible under section 1101(b) to prove motive or intent where the charged offense entailed no sexual assault and shared no distinctive features with the uncharged sex offenses—especially where the real issue is identity." We do not find that Guerrero prohibits evidence of a prior sexual assault to prove motive or intent in every case involving a murder with no sexual component. There, the primary issue at trial was how the victim died—whether by a blow to the head or as a result of jumping or falling from a car. (Id. at p. 723.) The trial court admitted evidence that the defendant had raped another girl six weeks before the charged offense. The Guerrero Court found no direct logical nexus between the prior rape and the charged offense because there was no indication the murder victim had been raped. The prior rape did nothing to resolve the primary issue of how the victim died. (Id. at pp. 726-728.)
Conversely, there is a direct logical nexus here between the kidnap and rape of Andrea and the kidnap and murder of Mariann, as shown above. Further, the evidence here was not admitted to prove Hernandezs identity as the killer, as he contends. In fact, the court twice instructed the jury, in accordance with CALJIC No. 2.50, that it could consider this evidence "only for the limited purpose" of determining "if it tends to show a characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offenses in this case, a motive for the commission of a charged crime in this case and/or the state of mind of the alleged victim in counts 1 and 2." It was further told, "You are not permitted to consider such evidence for any other purpose." Jurors are presumed to follow such instruction. (People v. Hardy (1992) 2 Cal.4th 86, 208.)
b. Common Plan
Hernandezs conduct was also relevant as part of a larger pattern, one that was highly relevant to understanding what happened to Mariann. "[E]vidence of a defendants uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan . . . . [¶] . . . [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Ewoldt, supra, 7 Cal.4th at pp. 401-403.) In Ewoldt, the defendant was charged with molesting his stepdaughter. Evidence was admitted to show the defendant also molested the victims sister when she was about the same age and under the same circumstances. The defendant offered the same excuse when he was confronted with each molestation. (Id. at p. 403.)
Similarly, the evidence here revealed that each incident occurred under similar circumstances—Andrea had just ended her relationship with Hernandez, refused to talk to him, and he was in danger of losing her. The trial court found the prior uncharged crime against Andrea "involved very specific alleged activities on the part of the defendant in terms of confronting a woman with whom he had an intense relationship, for whom he obviously had very strong, perhaps obsessive, feelings. It demonstrated the [lengths] to which he would go to preserve and protect that relationship, the lengths he would go in terms of the use of force and violence and threat in order to achieve the desired result."
c. Victims State of Mind
The evidence was also admissible because, as the trial court stated, "the prior incident gives direct meaning to any state of mind and lack of consent on the part of the alleged victim in this case." Hernandez argues it is the defendants state of mind that is material to the case, not the victims. However, lack of consent is an element of the kidnapping charge in count 1 and the special circumstance allegation in count 2, which placed this victims state of mind squarely at issue. (People v. Hill (2000) 23 Cal.4th 853, 855; Pen. Code, § 207, subd. (a).) Evidence of what Mariann knew about the kidnap and rape of her sister was relevant to show she would not willingly spend an extended amount of time with Hernandez or walk around the block with him as he testified.
Hernandezs contention that the trial court could have limited the testimony to vague references of a "prior incident with [Andrea] entailing violence" rather than detailing the rape would have stripped the evidence of its probative value. The court did not abuse its discretion to allow testimony of the details of the uncharged kidnap and rape.
Having affirmed the trial courts determination that evidence of the uncharged sexual assault against Andrea tends to prove several material facts relevant to the case, we must now "examine whether the probative value of the evidence of defendants uncharged offenses is `substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)" (Ewoldt, supra, 7 Cal.4th at p. 404.) "Evidence of uncharged offenses `is so prejudicial that its admission requires extremely careful analysis. [Citations.] `Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value. [Citations.]" (Ibid.) Again, this determination lies within the discretion of the trial court. (People v. Kelly (2007) 42 Cal.4th 763, 783.)
According to Hernandez, the primary risk of prejudice from the admission of uncharged crimes evidence is that the jurys verdict on the charged crime will be influenced by the impulse to punish him for the uncharged conduct. (Ewoldt, supra, 7 Cal.4th at p. 405.) However, that risk is mitigated if the uncharged crime is less inflammatory than the charged crime and the jury is properly instructed on the role of the uncharged crimes evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1150-1151.)
Here, both mitigating factors were present. The sexual assault in this case was less inflammatory than the murder of a mother of two. (See People v. Kipp, supra, 18 Cal.4th at p. 372 [evidence of uncharged rape and murder was not significantly more inflammatory than charged attempted rape and murder]; People v. Walker (2006) 139 Cal.App.4th 782, 807.) Further, as has been noted, the court twice instructed on the limited ways the jury could consider this evidence. Because the two events were separate in time and involved separate victims, we find no basis for believing that the jury might have been misled or confused the issues. We therefore find no abuse of discretion in the trial courts conclusion that the evidence was more probative than prejudicial.
Hernandezs contention that admission of this evidence violated his Federal Constitutional rights lacks merit. The evidence did not violate his right to due process (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920) and he was not prevented from cross-examining Andrea.
II. Hernandezs Own Statements Were Properly Admitted Against Him
Hernandez also contends the court erred in admitting statements he made to Andrea while watching a television show about crime scene investigators. On a number of occasions, he stated, "that he could get away with a murder, that he knew how to make a body disappear, that he could burn it, put acid on it, cut it up in pieces . . . take it to Tijuana, Mexico, and get rid of it there, and that nobody would ever find it." According to Hernandez, "he made this remark flippantly, while watching a TV show, long before Mariann[] disappeared, and no evidence brought the actual victim within the scope of the statement." As a result, his remark was inadmissible hearsay not subject to any hearsay exceptions. In this assertion, he is mistaken.
Evidence Code section 1220, provides that "[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . ." These statements were made by Hernandez, who is a party to this action, and were offered against him. Accordingly, the hearsay rule does not make the statements inadmissible. (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) In addition, the statements were highly relevant to the case given that Marianns body has not been found and he burned his car. It is thus clear their probative value outweighed any undue prejudice. (People v. Karis (1988) 46 Cal.3d 612, 638.)
Because we find that Hernandezs statements are admissible under Evidence Code section 1220, we need not address his arguments about Evidence Code section 1250.
If Hernandez made the statements in passing or if they were remote and not related to Marianns disappearance, as he contends, that was something he could present in his defense for the jury to consider, but it was not a barrier to admissibility.
Hernandez also objects to the statements under section 1101, arguing "it suggested a propensity to commit murder and encouraged conviction on this basis." However, section 1101 does not address itself to statements, it addresses prior acts. (People v. Robinson (2000) 85 Cal.App.4th 434, 446.) The trial court acted within its discretion in admitting Hernandezs prior statements. (People v. Thompson (1980) 27 Cal.3d at 303, 315.)
III. Marianns Statements That She Feared Hernandez Were Properly Admitted
Hernandez further objects on hearsay grounds to the admission of evidence that Mariann was afraid of him. At trial, Marcia and Marianns two daughters testified that Mariann feared Hernandez. Evidence Code section 1250, subdivision (a) creates an exception to the hearsay rule for evidence of a declarants statements regarding his or her then existing state of mind or emotion, when the declarants state of mind or emotion is at issue in the case, or when the evidence is offered to prove or explain the declarants acts or conduct. Marianns state of mind was at issue here, as previously noted, to show she was taken either forcibly or by fear and to disprove she did not willingly accompany Hernandez. The evidence that she feared Hernandez showed she would not have willingly gone along with Hernandez. This was germane to the prosecutions case-in-chief (cf. People v. Waidla (2000) 22 Cal.4th 690), contrary to appellants contention. It was also relevant to rebut Hernandezs own testimony that Mariann went willingly with him during the telephone calls and immediately thereafter.
Hernandezs reliance on People v. Noguera (1992) 4 Cal.4th 599 and People v. Ruiz (1988) 44 Cal.3d 589 is misplaced. Unlike the facts of this case, the victims state of mind was not at issue in either of those cases.
Hernandezs final claim is that admission of this evidence violated his federal constitutional right to confrontation as interpreted by Crawford v. Washington (2004) 541 U.S. 36. However, the statements Mariann made to her daughters clearly were not testimonial in nature. Instead, they were informal statements made to her family members, which have been found not to violate the Confrontation Clause. (See, e.g., People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19; People v. Smith (2005) 135 Cal.App.4th 914, 924.)
Because the statements are so clearly nontestimonial in nature, we need not address the issue of whether they were also forfeited by Hernandezs own wrongdoing. (See, Giles v. California (2008) __ U.S. __ [128 S.Ct. 2678, 171 L.Ed.2d 488].)
IV. Sufficient Evidence Supports the Convictions
Hernandez further contends the evidence was insufficient to support his conviction for first degree murder and kidnapping, and to support the special circumstance findings. He is mistaken.
To determine the sufficiency of the evidence, 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. [Citation.] The same standard of review applies when the evidence of guilt is circumstantial and to special circumstance allegations. [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 901.) We find the mountain of evidence presented against Hernandez was more than sufficient to support each of the jurys verdicts.
Mariann was last seen with Hernandez the morning of her disappearance. Family members testified she would not simply abandon her two daughters, her job or her life without notice. Hernandez believed Mariann stood in the way of his relationship with Andrea. Moreover, a jury could reasonably infer guilt from his actions and his statements to his father, his ex-wife, and Andrea.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J.
FLIER, J.