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People v. Hernandez

California Court of Appeals, Fourth District, Second Division
Jul 22, 2008
No. E043468 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County .No. FVI019418, Stephan G. Saleson, Judge.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

Gaut, J.

Defendant Ralphael Hernandez appeals from judgment entered following jury convictions for first degree murder (Pen. Code, § 187, subd. (a) ; count 1); voluntary manslaughter, as a lesser included offense of murder (§ 192, subd. (a); count 2), and involuntary manslaughter, as a lesser included offense of murder (§ 192, subd. (b); count 3). The jury also found true as to each count allegations that defendant personally and intentionally discharged a firearm, causing death (§ 12022.53, subd. (d). The court sentenced defendant to a total of 67 years 4 months to life in prison.

Unless otherwise noted, all statutory references are to the Penal Code.

Defendant contends the trial court erred in rejecting his request for accomplice instructions. We conclude the court properly rejected the accomplice instructions since there was no evidence that Brittany Powell was an accomplice. The judgment is affirmed.

1. Facts

Defendant’s friend and distant cousin, Katie Espinoza, trafficked drugs from her home. On July 8, 2004, Espinoza complained to defendant that Dillon Keyes and others were stealing things from her home and had stolen from defendant’s friend, Ray. Defendant agreed to spend the night of July 8, 2004, at her home to try to stop the stealing. Brittany Powell, defendant’s girlfriend, came with him to Espinoza’s house.

The parties have not provided Ray’s last name.

During the evening, Jerald Svec and his girlfriend, Christine Koscielniak, arrived at Espinoza’s house to buy drugs. Defendant and Espinoza told Svec that Svec’s brother, Keyes, was stealing from Espinoza. Svec said he did not believe it but would go get Keyes so he could clear things up.

Before Svec and Koscielniak left to get Keyes, they overheard defendant on the phone with Robert Rubalcava, also known as “Sneaky.” Defendant told his friend, Rubalcava, that defendant might need Rubalcava to come over to Espinoza’s house that night. Koscielniak testified that she and Svec heard defendant say on the phone to Rubalcava, “[I]t is about time to smoke somebody.” Svec told defendant, “There is no need for that.” Svec and Koscielniak then left to pick up Keyes and bring him to Espinoza’s house.

After Svec and Koscielniak left, defendant again called Rubalcava and asked him and another friend, Jesse, also known as “Droopy,” to come spend the night at Espinoza’s house because there had been problems there.

The parties have not provided Jesse’s last name.

Defendant and Powell then went outside but, before doing so, defendant handed Powell his gun to put in her pocket so it would not be visible while they were outside. Powell did so. After they stood outside for about 10 minutes, they went back inside Espinoza’s house and Powell gave the gun back to defendant. Defendant and Powell then went to the garage where they were going to spend the night. Shortly thereafter Rubalcava and Jesse arrived.

Within 10 minutes after Rubalcava and Jesse arrived, Svec returned with Keyes. While they were all in the garage, including Powell, defendant and Espinoza confronted Keyes about the thefts and Keyes said he wanted to call Ray and clear up everything.

Defendant called Ray on his phone and then handed Keyes the phone. After talking to Ray on the phone for a few minutes, Keyes handed the phone back to defendant. Defendant or Rubalcava then asked Keyes why he had his hands in his pockets. Keyes conceded he had a gun and removed his hands from his pockets. Rubalcava hit Keyes over the head with a flashlight, knocking him down. Espinoza ran over to Keyes to tend to his bleeding head.

Defendant began firing his gun at Keyes. One of the bullets entered Keyes’s head and killed him. Defendant accidentally fatally shot Espinoza, who was next to Keyes. Svec, who also was shot and lying on the ground, pleaded, “Please not my brother.”

Defendant asked Brittany if he had shot Espinoza and if Keyes was dead. Brittany said “yes” to both questions. Defendant then walked up to Svec, who was crying, and fatally shot him in the chest. Defendant, Brittany, Rubalcava and Jesse all fled in defendant’s car.

Svec’s girlfriend, who did not witness the shooting but was in Espinoza’s house, heard the gunshots and ran to the garage. Upon discovering the victims, she called 911. The police arrived shortly thereafter and found the three victims in the garage. Keyes and Espinoza appeared to be dead. The police found a handgun under Keyes’s head. Its magazine was full.

Svec was still alive and screaming for help. Svec told the police there were three Hispanic perpetrators. He also denied shooting anyone. Svec was transported to the hospital, where he later died.

According to a criminalist, the fired bullets recovered from the crime scene and from the victims were all from the same gun.

During defendant’s interview by the police after defendant’s arrest, defendant denied being present in the garage at the time of the shooting. However DNA test results proved that DNA from a beer bottle found at the crime scene matched defendant’s DNA.

Brittany stated during her initial police interview that she thought Keyes might have retrieved his gun and fired first.

Defendant testified he did not intentionally shoot Espinoza. Defendant’s testimony was consistent with other witness testimony as to what occurred before the shooting, with the exception that defendant claimed that, after Keyes talked to Ray on the phone and returned the phone to defendant, Keyes began pulling a gun out of his pocket. Rubalcava then hit Keyes over the head with a flashlight and defendant got into an argument with Svec over why Keyes and Svec had guns.

When defendant saw Keyes removing his gun again and defendant yelled, “Grab the strap.” Defendant grabbed his own gun nearby and fired at Keyes. He saw Espinoza get shot. Defendant heard Svec say, “No. Not my brother.” Defendant testified that Svec charged at him with something in his hand. Defendant fired his gun once at Svec, turned and fired at Keyes, who had a gun, and then turned and fired again at Svec. Defendant claimed that at the time of the shooting he did not hold any animosity toward Svec or Keyes and never discussed with anyone shooting or harming them.

2. Accomplice Instructions

Defendant contends the trial court erred in rejecting the following accomplice instructions, particularly CALJIC Nos. 3.11 (testimony of accomplice must be corroborated) and 3.18 (incriminating testimony of accomplice to be viewed with caution). Defendant claims there was evidence from which a reasonable juror could find Powell was an accomplice and therefore the court should have instructed on the accomplice corroboration rule.

The trial court must instruct the jury on accomplice testimony “[i]f there is evidence from which the jury could find that a witness is an accomplice to the crime charged, . . . (People v. Fauber [(1992)] 2 Cal.4th [792,] 834.) But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony.” (People v. Horton (1995) 11 Cal.4th 1068, 1114.) The critical inquiry is whether there was sufficient evidence to warrant instructing the jury on accomplice liability.

An accomplice is a person who can be prosecuted for the same crime for which the defendant is on trial. (See § 1111.) To be subject to criminal prosecution, a person must be a principal in the commission of the crime, that is, someone who either directly commits the act that constitutes the crime or who aids and abets that person in the commission of the crime. (See § 31.) An accomplice “aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561; see also CALJIC No. 3.01.)

Defendant argues accomplice instructions should have been given because there was sufficient evidence from which the jury could reasonably find that Powell was an accomplice. Such evidence included that Powell was defendant’s girlfriend at the time and was with defendant at the crime scene during the shooting and during the events leading up to the shooting. She also temporarily put his gun in her pocket before the shooting. Defendant adds there was no evidence Powell did not aid and abet in the crimes.

We conclude, based on our review of the totality of evidence, that there was insufficient evidence, if any, that would support a finding by a reasonable juror that Powell was an accomplice in the shootings. The fact that she was defendant’s girlfriend at the time and present in the garage where the shootings took place is not enough for a reasonable juror to find Powell was an accomplice. (People v. Stankewitz (1990) 51 Cal.3d 72, 91.)

Evidence that Powell put defendant’s gun in her pocket while she and defendant were standing outside Espinoza’s house also does not support a finding Powell was an accomplice. The evidence indicates this happened before the shooting and was an unrelated occurrence in which defendant simply asked Powell to put his gun in her pocket while they stood outside Espinoza’s house. Powell did so temporarily and then, when they went back inside, handed the gun back to defendant. At that time, Svec had not yet returned with Keyes, and defendant’s two friends, Rubalcava and Jesse had not arrived. It cannot be reasonably inferred from Powell’s act of putting defendant’s gun temporarily in her pocket that she was an accomplice to the subsequent shootings.

In order to be an accomplice, Powell had to have had knowledge of or intent to aid and abet defendant in committing the shootings or other crimes, the natural and probable consequences of which were the homicide offenses. “[A]s we explained in People v. Beeman (1984) 35 Cal.3d 547, 560: ‘[T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.]” (People v. Stankewitz, supra, 51 Cal.3d at pp. 90 -91.) There was no evidence of this in the instant case as to Powell.

3. Disposition

The judgment is affirmed.

We concur: Hollenhorst, Acting P. J., McKinster, J.


Summaries of

People v. Hernandez

California Court of Appeals, Fourth District, Second Division
Jul 22, 2008
No. E043468 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RALPHAEL HERNANDEZ, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 22, 2008

Citations

No. E043468 (Cal. Ct. App. Jul. 22, 2008)