Opinion
B231348
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. DENA ROSE HERNANDEZ, Defendant and Appellant.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA091599)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Dena Rose Hernandez appeals from the judgment entered following a jury trial which resulted in her conviction of carjacking (Pen. Code, § 215, subd. (a)), committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)) and her admission that she previously had been found guilty of robbery (§ 211), a serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). She was sentenced to 28 years in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution's case.
At approximately 7:30 p.m. on August 10, 2010, Hector Flores went to the Baldwin Avenue Mini Park in El Monte to play basketball. He parked his car across the street from the park and turned off the car, but left the keys in the ignition. While he was sitting in the parked car, Flores was approached by two people, one man and one woman. In addition, he "felt like someone hit or knocked on the [passenger's side] window" of his car and, when he looked in that direction, he saw a woman he knew as "Brianna." When he then began to turn in the seat of the car to face Brianna, the man walked over to the driver's side of the car and hit Flores on the left side of his face through the open window. The man hit Flores "many times" on the left side of his forehead. He also hit Flores behind his left eye and over his left ear and cheekbone.
The man was approximately five feet nine inches tall, had a shaved head and was wearing blue jeans and a white shirt with an " 'F' " on the front. As he was hitting Flores, the man, in an angry tone of voice, said that he was " 'El Monte Flores,' " that the street belonged to him and that he wanted Flores's car. As he continued to hit Flores, the man stated, " 'Mother fucker, this is my street[.]' 'This is my barrio, El Monte Flores.' "
Flores attempted to ward off the blows by raising his left hand. He tried to start the car with his right hand however, at this point, the woman who had approached with the man reached into the car from the right side, hit Flores on the hand and "removed the keys" from the ignition. Flores identified the woman as the appellant, Dena Rose Hernandez. He had seen Hernandez at the park with El Monte Flores gang members a number of times. Although he had never spoken to Hernandez, in general Flores did not like her. It had something to do with the look she had on her face whenever he saw her.
With a closed fist, Hernandez began hitting Flores on the right side of his face. She "punched" Flores many times and repeated what the man had said: that they "were from El Monte Flores, that it was their street, their turf, [and their] barrio." As she continued to hit Flores, Hernandez yelled out four or five times in an angry voice, " 'El Monte Flores.' "
Flores was frightened. He was afraid "that something might happen" to him because the man and Hernandez were hitting him so hard. Flores was "afraid for [his] life." He had seen El Monte Flores gang members in the streets of El Monte and in the park. He recognized them by their tattoos, which said " 'El Monte Flores,' " and their clothing which consisted of shirts which had an " 'F' " on them.
Hernandez and the man continued to hit Flores and, as they did so, began taking things from the car. As Hernandez hit Flores with one hand, she took coins and a camera from the glove compartment with the other. Then, the woman Flores knew as Brianna got into the back seat of the car and she, too, began to take things.
Flores finally managed to get out of the car. As he did so, the man who had been attacking him stepped back and put his hand beneath his shirt in a way which made Flores believe he had a gun. Flores "r[a]n to call the police." As he was leaving the area, Flores heard Hernandez say, " 'Let's go in the car.' " When the man indicated that he did not have the keys, Hernandez told him that she had them. Hernandez then asked the man if he could drive because the car had a standard transmission. After the man told Hernandez that he could drive, they got into Flores's car and drove off. Brianna, who was already in the back seat, went with them.
As a result of his encounter with the man and Hernandez, Flores suffered a bloody nose, swollen eyebrows, redness and swelling on both sides of his face, a large scratch on his left forehead, swelling on the back of his head at the base of his skull, a bump in the center of the back of his head and a swollen ear. Flores, who had been living in El Monte at the time his car was taken, moved out of El Monte the following day. He believed that the man and Hernandez knew where he lived and he was afraid they would come looking for him.
Sometime between 8:00 and 8:30 p.m. on August 10, 2010, Gregorio Zambrano was driving down Baldwin Avenue in the City of El Monte. As he passed by the Baldwin Mini Park, he saw "a young man hitting [Flores]"while Flores was sitting in the driver's seat of a car. Zambrano stopped his car and realized that there was also "a woman on the passenger side" whose body was half inside the car. The woman, who Zambrano identified as Hernandez, was also hitting Flores. When Zambrano realized what was happening, he put his car in reverse and backed up. As he got closer, the man who had been hitting Flores while screaming "puto," or "asshole," apparently made eye contact with Zambrano and backed away from the car. Flores, who was then able to get out of the car, did so and ran across the street. As he ran by, Zambrano asked Flores "what had happened to him." Flores responded, "[T]hey have just stolen my car." As he watched the man and Hernandez get into Flores's car and drive away, Zambrano told Flores to get into his car and that he would take him to the 7-Eleven store where there was a phone from which he could call the police. When they arrived at the store, there was a patrol car there.
Flores's car was recovered on August 21, 2010 in Temple City.
Zambrano did not know Hernandez, but he had seen her walking around the neighborhood and in the park. She was usually with "Cholos" with shaved heads. When he saw her hitting Flores that night, he recognized her as the same woman who, on a number of occasions, had approached his son and asked him for a dollar. When Zambrano's son wouldn't give her any money, she "showed him the finger."
El Monte Police Department Detective Ralph Batres is an expert on El Monte gangs. According to the detective, the primary gang in El Monte is the El Monte Flores gang. It has existed for over 50 years and has over 800 members. Further, gangs have territories and the El Monte Flores claims "everything in the City of El Monte." Gang members generally protect their territory by committing "shootings" and other violent crimes as well as intimidating witnesses. Moreover, the more violent crimes a gang member commits, the more he or she is respected within the gang. The primary activities of El Monte Flores gang members include robbery, drug sales, the intimidation of witnesses, assaults and carjackings.
Batres indicated that the El Monte Flores gang has a "hand symbol which is the letter "F." The letter "F" is significant to El Monte Flores gang members and they wear it on their clothing.
Batres is familiar with Dena Hernandez. He has known her for four or five years and spoken with her on several occasions, on some of which she was in the company of other El Monte Flores gang members. Although during some conversations with the detective Hernandez denied it, he was of the opinion that she "is definitely" a member of the El Monte Flores gang. Hernandez lives "right next to the park," within El Monte Flores gang territory. She has a tattoo which says " 'El Monte' " on her right wrist. In addition, if she were not a gang member and yet claimed to be one during the commission of a crime such as the one committed here, she would be punished by gang members. A "green light" would be placed on her. A "green light" means that the individual is "marked for death."
Batres was of the opinion that the crime committed in this case was "for the benefit of, at the direction of, or in association with the El Monte Flores criminal street gang." Batres continued: "As soon as they said 'Flores,' 'this is our territory,' 'this is our street,' 'this is our barrio,' that changed this crime from your standard carjacking to a gang[-]related crime, that's going to not only benefit the gang, but . . . the people . . . committing the crime[] because it's going to enhance their status within the gang."
Hernandez was found and taken into custody for the present crime on August 11, 2010.
b. Defense evidence.
El Monte Police Officer Victor Polanco wrote a report regarding this case after speaking with Flores and Zambrano. At trial, the officer indicated that, if a witness to a crime tells him that the perpetrator said something in particular to the victim, such as "puto, puto[,]" the officer would usually put it into the report. On the other hand, Polanco indicated that he does not report everything a witness tells him. Moreover, there are times when an officer writing a report misunderstands what a witness is telling him or her.
When he is writing a report, Polanco puts in information which he believes is relevant to the case at hand. In this instance, "the association of the gang . . . was on there." In addition, the officer believed it was important that Flores indicated that Hernandez "punched him several times on the right side of his face with a closed fist[,]" "[s]triking him on the forehead and the right arm[,]" and that Hernandez yelled out " 'El Monte Flores' " several times during the altercation. Also significant was Flores's statement that Hernandez "reached over and grabbed the keys out of Flores'[s] hands . . . or the ignition and took them away[.]"
2. Procedural history.
Following a preliminary hearing, on October 1, 2010, an information was filed charging Hernandez with one count of carjacking, a serious and violent felony in violation of section 215, subdivision (a). It was further alleged that, pursuant to section 186.22, subdivision (b)(1)(C), the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. Finally, it was alleged that Hernandez had previously been found to have committed the serious or violent felony of robbery (§ 211) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On January 4, 2011, the matter was called and a jury was sworn to try the cause. At the same hearing, the trial court granted Hernandez's motion to bifurcate the proceedings. Hernandez indicated she was willing to admit the alleged prior robbery and after waiving her right to a jury or court trial, she admitted having suffered a prior juvenile adjudication in case No. GJ 24784, on or about December 29, 2008, which resulted in a finding she had committed robbery in violation of section 211. The trial court then found that the prior robbery was true "beyond a reasonable doubt."
On January 6, 2011, the jury requested that the testimony of Officer Polanco be read back to them. Within an hour of the read-back, the jury indicated that it had reached a verdict. As read by the court clerk, the verdict indicated: "We the jury in the above-entitled action find the defendant, Dena Rose Hernandez, guilty of the crime of carjacking, in violation of . . . section 215[, subdivision] (a), a felony, as charged in Count 1 of the Information. [¶] We further find the allegation that the above offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of . . . section 186.22[, subdivision] (b)(1)(C) to be true[.]"
At proceedings held on March 3, 2011, counsel for Hernandez made a Romero motion. After hearing argument by the parties, the trial court denied the motion. The court indicated that, although Hernandez was only 19 years old, she had already been found guilty of several "robbery type" offenses and it could not be concluded that she was outside the spirit of the Three Strikes sentencing scheme.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
After noting "the violence with which the . . . carjacking" had been committed and that this was Hernandez's fourth "robbery type offense in a very short number of years," the trial court sentenced Hernandez to the upper term of nine years in prison, then doubled it to eighteen years pursuant to the Three Strikes law. The court then added an additional 10 years for the "gang allegation." Accordingly, Hernandez was sentenced to a total term of 28 years in prison.
Hernandez was awarded presentence custody credit for 102 days actually served and 15 days of good time/work time, for a total of 117 days. She was ordered to pay a $5,600 restitution fine (§ 1202.4, subd. (b)), a $5,600 stayed parole revocation restitution fine (§ 1202.45), a $40 security fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment fee (Gov. Code, § 70373), a $10 contribution to the crime prevention fund (§ 1202.5) and an El Monte Police Department booking fee in the amount of $136.86. Hernandez was also ordered to make restitution to the victim and the trial court retained jurisdiction over the matter until the question of the amount could be accurately determined. Finally, Hernandez was ordered to register as a street gang participant with the local law enforcement agency within 10 days of her release from custody.
On August 10, 2011, counsel for Hernandez made a motion in the superior court to correct the number of presentence custody credits awarded from a total of 117 days to a total of 235 days.
Hernandez filed a timely notice of appeal on March 3, 2011.
This court appointed counsel to represent Hernandez on June 1, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed August 31, 2011, the clerk of this court advised Hernandez to submit within 30 days any contentions, grounds of appeal or arguments she wished this court to consider. On September 26, 2011, this court granted Hernandez a 30-day extension within which to file her supplemental brief. She filed her brief on October 3, 2011.
Hernandez first asserts that her trial counsel was ineffective for having failed to have her mother testify that she, Hernandez, is not a gang member and for having failed to call as a witness a member of the El Monte Flores to verify that she is not a member of that gang.
"In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v.Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)
A review of the record indicates that Hernandez's counsel was not incompetent. Had counsel called Hernandez's mother to testify, the prosecutor would simply have argued that she was biased. The same would have been true for a member of the El Monte Flores gang. Instead, counsel thoroughly cross-examined each of the prosecution's witnesses and succeeded in making Officer Polanco admit that there are times when an officer writing a report misunderstands what a witness is telling him or her. In addition, counsel artfully argued the case. For instance, she pointed out that, after Flores had told a police officer that he had no feelings one way or another for Hernandez, he later admitted, with a "frown on his forehead," that he did not like her.
Neither did Hernandez suffer any prejudice as a result of counsel's representation. Hernandez argues that, had counsel more diligently "attacked" the gang enhancement, the jury would not have found her guilty of the alleged crimes. She asserts "the state did not prove the charge[s] nor establish the elements necessary to substantiate the charge[s.]" A reading of the record indicates otherwise. The prosecutor presented more than sufficient evidence to show, not only that Hernandez committed the carjacking, but that she did so for the benefit of and in association with a member of a criminal street gang. We note that " '[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citation.]' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, the jury believed Flores, Zambrano and Detective Batres. Their testimony was reasonable, credible and of solid value. Under these circumstances, the jury properly found the evidence supported a finding Hernandez was guilty of the charged offenses, including the allegation she committed the carjacking for the benefit of a criminal street gang. There is nothing counsel could have done to change that.
Hernandez next asserts the prosecutor failed to properly prove her prior robbery adjudication. The contention is completely without merit. After waiving her right to a court or jury trial, Hernandez admitted having suffered a prior juvenile adjudication which resulted in the finding she committed robbery in violation of section 211.
Hernandez, relying on Berger v. United States (1935) 295 U.S. 78, next asserts the prosecutor committed misconduct by knowingly charging her with a gang enhancement which the prosecutor knew had no basis in fact. In Berger, the defendant was charged with participating in a conspiracy to "utter counterfeit notes purporting to be issued by designated federal reserve banks." (Id. at pp. 79-80.) However, due to evidence presented by the prosecutor of a second, disconnected conspiracy testified to by the witnesses, Berger was found guilty, not only of the primary conspiracy with which he had been charged, but a second conspiracy as well. The appellate court determined that Berger had been wrongfully found guilty of the second conspiracy in part because he had not been properly charged with it. (Id. at p. 80.)
Hernandez's case is not like Berger's. Prospective witnesses Flores, Zambrano and Detective Batres all indicated they believed Hernandez was a member of the El Monte Flores gang and had committed the carjacking in association with and for the benefit of the gang. Batres, in particular, noted that Hernandez had been seen in the company of other El Monte Flores gang members, lived next to the park in El Monte Flores territory and had a tattoo on her right wrist which read "El Monte." Based on this evidence, Hernandez was properly charged with, and found guilty of, committing the carjacking for the benefit of, in association with and at the direction of a criminal street gang.
Finally, Hernandez contends the prosecutor committed misconduct when, during her closing argument, she referred to Hernandez as a gang member. "A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom." (People v. Harrison (2005) 35 Cal.4th 208, 244.) Given the testimony of the witnesses at trial indicating that Hernandez was associated with the El Monte Flores gang, the prosecutor's comments indicating that she was a gang member were appropriate. (Ibid.) Hernandez's contention is without merit.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
Hernandez's request to relieve her appellate counsel is denied.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.