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People v. Hernandez

California Court of Appeals, Second District, First Division
Feb 3, 2011
No. B217868 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. TA094589, John J. Cheroske and Allen J. Webster, Jr., Judges.

Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.


ROTHSCHILD, Acting P. J.

Tony June Hernandez appeals from the judgment entered after a jury convicted him of first degree murder and possession of a firearm by a felon. Hernandez contends (1) the trial court erred by failing to conduct an in camera review of police officer personnel files as requested in his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (2) he was prejudiced by the exclusion of evidence regarding the defense allegation that Detective Donovan Nickerson of the Los Angeles Police Department (Department), who was assigned to this case, had lied in connection with another criminal matter; (3) the prosecutor committed prejudicial misconduct; and (4) the evidence is insufficient to support the jury’s “true” finding on the criminal street gang enhancement under Penal Code section 186.22, subdivision (b)(1). The People contend the convictions and the “true” finding on the criminal street gang enhancement should be affirmed, but the matter should be remanded for resentencing because the trial court did not account for Hernandez’s admitted prior serious felony conviction in sentencing him and the abstract of judgment should be modified to reflect the court security fee imposed by the court.

Statutory references are to the Penal Code unless otherwise specified.

We agree with Hernandez that the trial court erred by denying his Pitchess motion. Accordingly, we conditionally reverse the judgment and remand the matter for the court to reconsider the motion and review in camera the necessary documents. We also conclude that, if the judgment is reinstated after the Pitchess hearing on remand, the court must resentence Hernandez to account for his admitted prior serious felony conviction and the abstract of judgment must reflect the imposed court security fee.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An information dated March 18, 2008 charged Hernandez with the murder of Robert White (§ 187, subd. (a)) and with possession of a firearm by a felon (§ 12021, subd. (a)(1)). As to the murder count, the information specially alleged that Hernandez had personally and intentionally used and discharged a firearm causing death (§ 12022.53, subds. (b)-(d)) and committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The information also specially alleged as to both counts that Hernandez had a prior serious felony conviction for discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a)) that subjected him to a five-year enhancement under section 667, subdivision (a)(1), sentencing under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a one-year enhancement under section 667.5, subdivision (b).

2. The People’s Evidence

On the afternoon on May 18, 2004, White was shot in the back while running from the perpetrator near the intersection of 115th Street and Grape Street in Los Angeles, close to the Imperial Courts Housing Project (Project). While on the way to the hospital, White, who was addicted to cocaine and often bought drugs in the Project, told Officer Ryan Smith that a member of the Project Crips, a criminal street gang whose territory included the Project, had shot him and that he and the perpetrator were in a dispute over drugs and that White’s girlfriend had a verbal disagreement with the perpetrator’s girlfriend also regarding drugs. White died from his injuries five days later.

Approximately one week after the shooting, Selessia (also known as Denise) Sanders, who grew up in the Project and spent a significant amount of time there because her mother still lived there, called the Department and spoke with Officer Mark Arenas. Sanders eventually told Officer Arenas that she was at her mother’s house and saw Hernandez holding a gun shortly before the shooting and that after the shooting Hernandez rode by on a bicycle and motioned to her to keep quiet. Sanders also said that her 14-year-old daughter, Lacristen Johnson, witnessed Hernandez shoot the victim as Johnson was walking to her grandmother’s house in the Project after school. Both Sanders and Johnson knew Hernandez, as he lived just outside the Project across the street from Sanders’s mother.

Sanders reluctantly agreed to have her daughter meet with Officer Arenas at a neutral location. On June 9, 2004, Sanders and Johnson met with Officer Arenas, along with Detectives Nickerson and Kevin Jolivette, the detectives assigned to the case, at a park in Gardena. During the meeting, Detective Nickerson presented Johnson with a photographic six-pack lineup. She circled Hernandez’s photograph, said she saw him shoot the victim and signed a written statement to that effect.

Other witnesses gave the police descriptions of the shooter, which the prosecutor argued to the jury matched that of Hernandez, but Johnson was the only witness who identified Hernandez as the perpetrator either at trial or to the police.

After the meeting, Sanders expressed that she and Johnson were reluctant to testify against Hernandez, given that they both knew him and spent considerable amount of time at Sanders’s mother’s house. Sanders later failed to come to a scheduled meeting with Detective Jolivette and to return his telephone call. Ultimately, the District Attorney’s office rejected filing the case.

In the meantime, Sanders, who since reporting to Officer Arenas regarding the White murder had made other telephone calls to him about the case and criminal activities in the Project, became a paid informant for the Department on October 3, 2005. For a while, Sanders, in her capacity as an informant, reported to Detective Nathan Kouri.

In October 2007, Detective Kouri, no longer Sanders’s “handler, ” transferred to the unit responsible for the White murder and was assigned to investigate the “cold” case. Upon reviewing the file, he recognized Sanders’s name and contacted her. She told him, as she had informed Officer Arenas, that she saw Hernandez with a gun shortly before the shooting and that her daughter, Johnson, witnessed Hernandez shoot the victim. When Sanders expressed safety concerns to Detective Kouri, he promised to help with relocation out of the Project. Detective Kouri then interviewed Johnson, who repeated that she had seen Hernandez shoot the victim and confirmed her identification of Hernandez as the shooter in the same photographic lineup used by Detective Nickerson.

The Department again presented the case to the District Attorney’s office, which this time, on December 26, 2007, filed charges accusing Hernandez of White’s murder. When Detective Kouri informed Sanders of the charges, she became upset, saying she and Johnson did not want to testify against Hernandez and feared retaliation. On January 3, 2008, Sanders spoke with Detective Kouri’s supervisor about relocating, and she received a housing voucher. On January 25, 2008, Sanders and Johnson met with Detective Kouri and the prosecutor. During the meeting, Johnson initially said she had not seen the shooting, but later admitted that she had witnessed Hernandez shoot the victim. Both Sanders and Johnson protested that they did not want to testify, and Sanders said that she would not relocate because her mother was terminally ill.

Before the preliminary hearing on March 4, 2008, Sanders told Hernandez’s counsel that she was an informant for the Department and did not want to testify. Hernandez’s counsel spoke with the prosecutor, who told him not to raise Sanders’s informant status at the preliminary hearing. Nevertheless, at the preliminary hearing, Hernandez’s counsel asked Detective Kouri about the nature of his relationship with Sanders and, after objections were overruled, Detective Kouri testified that Sanders had worked as an informant. Johnson and Sanders both denied their statements to the police implicating Hernandez and suggested misconduct by Detective Nickerson regarding the photographic lineup and by Detective Kouri concerning threats to Sanders if Johnson did not make a statement that she had seen Hernandez shoot the victim.

Based on the revelation of Sanders’s informant status and the accusations of officer misconduct at the preliminary hearing, the prosecutor met with her supervisor and Sanders later that day. At the meeting, the prosecutor reported to her supervisor that Sanders’s safety was in jeopardy because her informant status had been revealed in court and that Sanders had alleged improprieties of Detective Kouri. After speaking with the supervisor, Sanders agreed to let the Department help her relocate.

Soon after the preliminary hearing Sanders’s mother died, and Sanders and Johnson apparently relocated. Hernandez’s counsel was relieved when he revealed that he had given money to Sanders and to the mortuary to help pay for her mother’s burial, and Hernandez obtained new counsel.

At trial, Johnson testified, as she had at the preliminary hearing, that she had not seen the shooting. She saw a crowd on her way home from school and thought there had been a fight. After going into her grandmother’s house, she went back outside with her mother and saw a man lying on the ground. She did not see Hernandez. When Detective Nickerson showed her the photographic lineup at the park in June 2004, Hernandez’s picture already had been circled. Detective Nickerson told her to write that she had seen Hernandez shoot the victim, even though she said she had not. Johnson did what Detective Nickerson told her to do, although it was not true. Later in her testimony, she admitted that in October 2007 (more than three years later), when interviewed by Detective Kouri, she told him that she had seen Hernandez shoot the victim, but she did so only because her mother had instructed her that implicating Hernandez was necessary for their safety. She also testified that, before Detective Kouri said anything about the murder, he asked her whether she had spoken to her mother about what to say. (Nothing resembling this inquiry by Detective Kouri is found on the tape of the interview.)

In her testimony at trial, Sanders denied making the statements attributed to her by the police, including that she saw Hernandez with a gun before the shooting and that Johnson had witnessed Hernandez shoot the victim. She also denied that she had initiated the contact with the Department after the shooting, saying that she called because she received cards at her mother’s house asking that she call the Department. She convinced Johnson to tell Detective Kouri in October 2007 that Hernandez was the shooter because Detective Kouri had threatened to disclose her informant status if Johnson did not make such statement.

Officer Manuel Moreno testified as a criminal street gang expert, stating that Hernandez was a “well-established, well-entrenched” member of the Project Crips, whose primary activity was selling narcotics in the Project. Officer Moreno opined that a shooting of an individual with a cocaine problem on the street in broad daylight by a Project Crimps member when the two had had a dispute over drugs, and their girlfriends had argued about drugs, was “most definitely” committed to benefit the gang because it brought respect to and enhanced the reputation of the gang member and the gang.

3. The Defense Evidence

Deion M. testified that he was playing basketball with friends near the area of the shooting and saw a man on a bicycle come out of the Project and fire shots. He recognized the shooter as “Raymond J.” The shooter had a dragon tattoo on his face. In his statements to officers shortly after the shooting, however, Deion admittedly did not mention that he knew the name of the shooter or that the shooter had a dragon tattoo, and police reports of his interview did not reflect any such statements. Deion said that, if he had seen a Project Crips member commit a crime, he would not tell the police and he would never testify in court against a member of the Project Crips.

A number of officers, including the gang expert, testified they knew of no Project Crips member with a dragon tattoo.

4. The Jury’s Verdict and Sentencing

The jury found Hernandez guilty of murder in the first degree and possession of a firearm by a felon. As to the murder count, the jury found “true” the special allegations on the firearm enhancements under section 12022.53 and the criminal street gang enhancement under section 186.22, subdivision (b)(1). Hernandez admitted that he had a prior conviction under section 246.3, subdivision (a).

The trial court sentenced Hernandez to 50 years to life in state prison, consisting of a term of 25 years to life for the first degree murder conviction, plus an additional term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court imposed the high term of 3 years on the conviction for possession of a firearm by a felon and ordered it to run concurrently with the sentence on the murder count.

Hernandez was not subject to a 10-year term for the criminal street gang enhancement because he received a life term for the murder conviction. (See People v. Lopez (2005) 34 Cal.4th 1002, 1007.)

DISCUSSION

1. The Trial Court Improperly Denied Hernandez’s Pitchess Motion

Hernandez filed a motion pursuant to Pitchess, supra, 11 Cal.3d531, requesting an in camera review of the personnel records of Detectives Nickerson and Kouri to determine if they contained any evidence of dishonesty, improper or coercive interrogation, illegal or false arrest or fabrication of evidence. The trial court (Judge John J. Cheroske) denied the motion without conducting an in camera review to determine if the personnel records contained discoverable information. Hernandez contends the court erred. We agree.

“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225, fn. omitted (Mooc); see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense, and thus to a fair trial, with the peace officer’s reasonable expectation that his or her personnel records remain confidential, the Legislature adopted a statutory scheme requiring a defendant to meet certain prerequisites before a trial court considers his or her request. (People v. Prince (2007) 40 Cal.4th 1179, 1284-1285; Mooc, at p. 1227;see §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].)

A defendant seeking to initiate discovery must file a written motion that includes “[a] description of the type of records or information sought[, ]” supported by “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency indentified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(2) & (3); California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020.) “A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick). The defendant need only present a factual scenario of officer misconduct “that might or could have occurred.” (Id. at p. 1026.)That is because “a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language.” (Ibid.) The defendant, however, must request information with sufficient specificity to preclude the possibility that he or she is “simply casting about for any helpful information.” (Mooc, supra, 26 Cal.4th at p. 1226.)

If the trial court concludes the defendant has made a good cause showing for discovery, the custodian of records must bring to court all documents “‘potentially relevant’” to the defendant’s request. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court then examines the documents in chambers with only the custodian of records and such other persons he or she is willing to have present. (Evid. Code, §§ 915, subd. (b), 1045, subd. (b).) Subject to certain statutory exceptions and limitations, the trial court must disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, at p. 1226; see also Warrick, supra, 35 Cal.4th at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)

The trial court must exclude from disclosure: “(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b); see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)

The Supreme Court made clear in Warrick that, to establish good cause, the defendant’s factual scenario of officer misconduct need only be one “that might or could have occurred” and that assessing credibility or persuasiveness at the Pitchess discovery stage is inconsistent with the statutory language. (Warrick, supra, 35 Cal.4th at p. 1026.) The Court also held that, depending on the circumstances, the defendant’s factual scenario “may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.) A sufficient plausible factual scenario need only present “an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.)

In his Pitchess motion, Hernandez requested examination of the personnel records of Detectives Nickerson and Kouri and submitted two declarations from his counsel, a defense investigator’s report and a transcript of the preliminary hearing as support. Hernandez’s counsel declared, in part, that he believed Detectives Nickerson and Kouri independently had persuaded Johnson to identify Hernandez as the perpetrator, even though she did not witness the shooting, and that she had refuted her identification and exposed the detectives’ misconduct at the preliminary hearing. As to Detective Nickerson, counsel stated that, according to Johnson, Detective Nickerson showed her a photographic lineup with Hernandez’s picture already circled and told her to write on the form that she saw Hernandez shoot the victim. As to Detective Kouri, counsel stated that Johnson had identified Hernandez as the perpetrator in her interview with Detective Kouri because her mother had told her to do so for safety reasons and that Detective Kouri had threatened to expose Sanders as a police informant if Johnson did not say that she saw Hernandez shoot the victim. Moreover, the defense investigator reported, per Sanders, that she did not initiate contact with the police to report that her daughter had seen the shooting, but rather met with them only after the police contacted her to arrange a meeting with Johnson because they had received information that she was a potential eyewitness. It was at that meeting that Detective Nickerson allegedly showed Johnson the already circled photograph of Hernandez and told her to identify him as the perpetrator, despite her assertion that she did not witness the shooting.

In denying the motion, the trial court stated “[t]he plausible scenario as to why Ms. Johnson is recanting her testimony I think is the all too common feign of retaliation of street gangs here in Los Angeles and the unsubstantiated theory that this is somehow a police conspiracy to frame the defendant is not supported. I specifically find there is not a sufficient showing, plausible-I want to emphasize plausible factual scenario showing misconduct by either officer, and [the motion] is denied.”

We agree with Hernandez that, in evaluating his proposed showing of good cause, the trial court improperly assessed the credibility of the witnesses, particularly that of Johnson, and of the proposed defense. Given the minimal burden enunciated in Warrick, the court should have granted the motion and conducted an in camera review of the detectives’ personnel records to determine if they contained any relevant material responsive to allegations of dishonesty, improper or coercive interrogation, illegal or false arrest or fabrication of evidence. Plausibility, not ascertained fact, is the linchpin under Warrick, and it is conceivable, as Hernandez suggests, that Detectives Nickerson and Kouri persuaded Johnson to identify Hernandez as the perpetrator, presenting “a logical link between the defense proposed and the pending charge” and “articulat[ing] how the discovery being sought would support such a defense or how it would impeach the officer’s version of the events.” (Warrick, supra, 35 Cal.4th at p. 1021; see, e.g., People v. Hustead (1999) 74 Cal.App.4th 410, 416-417 [allegations in defense counsel’s declaration sufficient for Pitchess discovery as to whether officer had history of misstating or fabricating facts in police reports].)

The trial court stated that eyewitnesses to the shooting other than Johnson had identified Hernandez as the perpetrator, indicating that it did not believe Johnson’s report as to why at the preliminary hearing she had recanted her prior identifications of Hernandez. As noted, the court’s credibility assessment was improper at the Pitchess stage, and its understanding of the evidence appears incorrect. Although the police had reports from a number of witnesses giving descriptions of the perpetrator, only Johnson in her police interviews specifically identified Hernandez as the shooter, and, according to the police reports, Sanders reported her daughter’s identification to the police shortly after the shooting.

To the extent Hernandez’s motion sought discovery of information from the personnel files concerning improper tactics, unnecessary force, abusive language, entrapment, false imprisonment and illegal search and seizure, it was properly denied.

Because the trial court erred by denying Hernandez’s Pitchess motion in its entirety without the required in camera review, we conditionally reverse the judgment of conviction and remand the matter for the trial court to resolve the issue of prejudice as follows: (1) The court must conduct an in camera inspection of the requested personnel files regarding Detectives Nickerson and Kouri for discoverable information; (2) if the inspection reveals no such information, the court must reinstate the judgment of conviction; and (3) if the inspection reveals discoverable information, the court must order disclosure to Hernandez, allow him an opportunity to demonstrate prejudice and order a new trial if a reasonable possibility exists that the outcome at trial would have been different had the information been disclosed. If Hernandez is unable to show any prejudice, the convictions are to be reinstated. (See People v. Gaines (2009) 46 Cal.4th 172, 183-184.)

2. The Exclusion of Evidence Regarding the Defense Allegation that Detective Nickerson Lied in Connection with Another Criminal Matter Does Not Require Reversal of Hernandez’s Convictions

According to defense counsel, in another criminal matter, Detective Nickerson testified at a hearing that a witness did not make an identification in a live lineup, but documents revealed that the witness indeed had identified someone who was not the defendant. In addition, Detective Nickerson’s explanation that he had stopped a tape recording for a short while before resuming it and capturing the defendant’s confession contradicted evidence demonstrating that the recording had been stopped for a much longer period of time and that defendant’s confession appeared on the tape right after the recording began again. Defense counsel represented that these inconsistencies between Detective Nickerson’s testimony and the documentary and other testimonial evidence led the trial court in the other matter to reject Detective Nickerson’s testimony and to suppress the defendant’s confession. In addition, defense counsel stated his belief that Detective Nickerson had been investigated by the Department as a result of his conduct and demoted. The prosecutor maintained that any findings against Detective Nickerson had been reversed and he had been restored to his prior position. Defense counsel disputed these representations.

On appeal, Hernandez advances a number of evidentiary theories, only some of which were presented in the trial court, as to why the court should have allowed him to present impeachment evidence that Detective Nickerson had lied in the earlier criminal matter, even though Detective Nickerson did not testify at this trial. We need not decide the general proposition whether a party may impeach a person who has not testified at trial because Hernandez does not present any argument or supporting authority that any of the particular evidence he proffered was admissible. (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9 [unless defendant’s brief contains legal argument with citation of authorities on issue, reviewing court may pass on it without consideration].)

In any case, so far as we can understand, Hernandez wanted to call as a witness the defense attorney in the other criminal matter to testify that Detective Nickerson had lied in that case. This he could not do. (People v. Melton (1988) 44 Cal.3d 713, 744 [“Lay opinion about the veracity of particular statements by another is inadmissible on that issue”]; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40 [whether witness was telling the truth on a particular occasion inadmissible as improper opinion testimony and as not relevant].) Moreover, to the extent Hernandez wanted to ask the defense attorney what the witnesses in the other matter testified to regarding the lineup and the tape of the confession, such testimony would be inadmissible hearsay. (Evid. Code, § 1200.)

Hernandez also suggests that he should have been allowed to question Officer Arenas and Detective Jolivette regarding their knowledge that the Department had investigated Detective Nickerson for lying in another matter. Hernandez theorizes that, if the two testifying officers were aware that Detective Nickerson was in trouble for lying previously, a reasonable inference can be drawn that, based on officer loyalty, Officer Arenas and Detective Jolivette would lie in this case to protect Detective Nickerson from getting into trouble again. The problem here, however, is that Hernandez never attempted to establish the underlying fact necessary for this scenario-that Officer Arenas and Detective Jolivette believed that Detective Nickerson had been disciplined in connection with the earlier case. After Officer Arenas testified that he “knew that there was something going on with Detective Nickerson” “that was being handled by internal affairs, ” Hernandez changed topics and never followed up to ask whether Officer Arenas believed that Detective Nickerson had been sanctioned or found to have done something wrong. As to Detective Jolivette, when the trial court sustained the prosecutor’s objections to questions whether Detective Jolivette was aware of or testified at a Board of Rights hearing regarding Detective Nickerson, Hernandez never attempted to explain to the court the theory of relevance-officer bias-that he now adopts.

In any event, even if the trial court erred by sustaining objections to Hernandez’s questions to Detective Jolivette, such error was not prejudicial on this record. Hernandez argued to the jury that Officer Arenas and Detective Jolivette were mistaken or lied when they testified that Johnson circled Hernandez’s photograph in the lineup because officers “look out for each other.” Hernandez thus already presented a closely connected version of his theory of bias, which the jury rejected. Nevertheless, in assessing prejudice from any failure to disclose discoverable Pitchess material, the trial court on remand should include in its consideration whether and to what extent such failure also may have hindered Hernandez in his ability to pursue his theory of bias.

3. No Basis Exists to Reverse Hernandez’s Convictions on the Ground of Prosecutorial Misconduct

Before trial, Hernandez moved to recuse the prosecutor on the ground that she had a conflict of interest because he would call her as a witness on the theory that she “might have witnessed” attempts by the police to “suborn perjury or otherwise manipulate evidence” when she met with Detective Kouri, Johnson and Sanders on January 25, 2008 regarding Johnson’s and Sanders’s reluctance to testify against Hernandez. In opposing the motion, the People (represented by the Attorney General’s office) submitted a declaration from the prosecutor in which she stated, “At no time did I witness or observe any improper or illegal act, including but not limited to any act to suborn perjury or dissuade a witness, committed by Detective Kouri. Nor did I commit such an act.” The trial court (Judge Judith L. Meyer) denied the motion, concluding no conflict of interest existed and thus there was no basis for recusal.

On appeal, Hernandez does not challenge the denial of his recusal motion. Rather, he contends the prosecutor committed prejudicial misconduct because she failed to disclose in connection with the recusal motion that at a meeting with her supervisor and Sanders on March 4, 2008, after the preliminary hearing, Sanders accused Detective Kouri of misconduct. According to Hernandez, the prosecutor in her declaration in opposition to the recusal motion had a duty to disclose Sanders’s accusation against Detective Kouri.

The prosecutor did not commit misconduct as Hernandez contends. The motion asserted that the basis for recusing the prosecutor was that she possibly had observed officer misconduct, in particular during a meeting with Detective Kouri, Johnson and Sanders, and thus that the prosecutor had a conflict of interest as a potential trial witness. The prosecutor responded to this charge, saying she had not witnessed officer misconduct. Whether Sanders had accused Detective Kouri of misconduct when she met with the prosecutor and her supervisor was not at issue in the recusal motion, and such an accusation would not have addressed Hernandez’s claim that a conflict of interest existed because the prosecutor had witnessed officer misconduct. No police misconduct could have occurred at the meeting between the prosecutor, her supervisor and Sanders because no officers were present at that meeting. Moreover, when Hernandez moved to recuse the prosecutor, he was well aware that Sanders had accused Detective Kouri of misconduct because she had testified to that effect at the preliminary hearing. Accordingly, no basis exists to reverse Hernandez’s convictions on the ground of prosecutorial misconduct.

Hernandez posits that the prosecutor’s failure to disclose her meeting with her supervisor and Sanders was misconduct because she ultimately called her supervisor as a witness at trial. But, as discussed, the only ground for the recusal motion was a conflict of interest based on the prosecutor’s supposed witnessing of officer misconduct.

4. Substantial Evidence Supports the Jury’s “True” Finding on the Criminal Street Gang Enhancement

The jury found “true” the special allegation under section 186.22, subdivision (b)(1). That section provides, “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished” as specified in the statute.

Hernandez claims that the evidence was insufficient to support the jury’s “true” finding on the criminal street gang enhancement. Specifically, he contends that no substantial evidence demonstrates that the murder was committed (1) for the benefit of, at the direction of, or in association with a criminal street gang and (2) with the specific intent to promote, further, or assist in any criminal conduct by gang members. We disagree.

“In considering a challenge to the sufficiency of the evidence to support an enhancement, [the appellate court] review[s] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [It] presume[s] every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)

Although, as the Supreme Court recently recognized, not every crime committed by a gang member is related to a gang (Albillar, supra, 51 Cal.4th at p. 60), the evidence here is sufficient to support the jury’s finding that Hernandez murdered White for the benefit of his criminal street gang and with the specific intent to promote or further criminal conduct by gang members. According to the evidence, White was addicted to cocaine and often bought drugs in the Project where the Project Crips sold narcotics. When White was being transported to the hospital after the shooting, he told Officer Smith that the perpetrator was a Project Crips member and that White was in a dispute with him and White’s girlfriend and the perpetrator’s girlfriend were in a verbal argument over cocaine. Officer Moreno, the People’s expert on criminal street gangs, testified that Hernandez was a “well-established, well-entrenched” member of the Project Crips, which engaged primarily in narcotics sales, and that Hernandez’s three tattoos were consistent with those that a Project Crips member would have on his body. Officer Moreno also testified that, if a drug addict, like White, were in a dispute with a Project Crips member over narcotics and that member shot White in the back just outside the Projects in the middle of the street in the afternoon, then that crime was “most definitely” committed to benefit the gang. He said that a dispute over narcotics between a Project Crips member and a non-member would likely lead to the beating or killing of the non-member. Officer Moreno opined that a drug addict’s dispute with a gang member over drugs showed disrespect to the gang member and the gang and hurt the individual’s reputation. The shooting in broad daylight brought respect to the gang member and his gang and enhanced his reputation, while also intimidating potential witnesses. Indeed, police reports indicated that Sanders saw Hernandez after the shooting and that he motioned to her that she should keep quiet.

Viewing this evidence in the light most favorable to the judgment, substantial evidence supports the jury’s finding that Hernandez shot White to benefit the Project Crips and that he had specific intent to promote or further criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at p. 63 [substantial evidence supported criminal street gang enhancement when gang expert testified in part that crimes were committed to bolster status and respect of gang members and their gang]; People v. Vazquez (2009) 178 Cal.App.4th 347, 353 [substantial evidence supported criminal street gang enhancement based on gang expert’s testimony that the murder would increase respect for the gang and facilitate its criminal activities, in part by intimidating rival gang members and neighborhood residents]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 [substantial evidence supported criminal street gang enhancement when “qualified [gang] expert testified the participation of a Southside gang member in a Townsend Street retaliation killing would benefit Southside by enhancing its ‘respect’”]; see generally People v. Killebrew (2002) 103 Cal.App.4th 644, 657 [gang expert’s testimony used to prove “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang”].)

Hernandez claims the gang expert improperly assumed without evidentiary support that the dispute between White and Hernandez was witnessed by others and thus that his opinion that the murder was committed to increase respect and enhance the reputation of Hernandez and his gang is not factually sound. We do not agree that the gang expert’s opinion was dependent on an assumption that the dispute between White and Hernandez was witnessed by others. In any event, according to the evidence, Hernandez’s girlfriend and White’s girlfriend also were involved in an argument over drugs, and Hernandez’s brother was nearby when the shooting occurred. It, therefore, is a reasonable inference that others knew about the drug dispute between Hernandez and White and thus could understand from Hernandez’s shooting of White that Hernandez individually and the Project Crips as a gang would take action against someone who disrespected and challenged them in their activity of narcotics sales.

5. If Hernandez’s Convictions Are Reinstated, the Trial Court Must Resentence Him to Account for His Admission of a Prior Serious Felony Conviction

As noted, the information specially alleged that Hernandez had a prior serious felony conviction for discharging a firearm in a grossly negligent manner that subjected him to sentencing under section 667, subdivision (a)(1), the Three Strikes law and section 667.5, subdivision (b). Waiving his right to a jury trial, Hernandez admitted that he had a prior “strike” conviction under section 246.3 and that he qualified for a one-year enhancement under section 667.5, subdivision (b). In sentencing Hernandez, however, the trial court did not refer to Hernandez’s prior serious felony conviction, nor did it sentence Hernandez in accordance with the Three Strikes law or section 667.5, subdivision (b). Accordingly, if on remand the judgment of conviction is reinstated, then the court should resentence Hernandez and either impose sentence under the Three Strikes law (People v. Jefferson (1999) 21 Cal.4th 86, 96 [when current felony is punishable by an indeterminate term, trial court must double minimum parole eligibility date for sentencing under the Three Strikes law]; People v. Morales (2003) 106 Cal.App.4th 445, 454-455 [subordinate term doubled for sentencing under Three Strikes law]), or dismiss the prior serious felony conviction pursuant to section 1385, subdivision (a), as to one or both of the convictions (People v. Garcia (1999) 20 Cal.4th 490, 503-504 [trial court may exercise its discretion to dismiss a prior strike conviction as to one count but not as to another]). (See People v. Delgado (2010) 181 Cal.App.4th 839, 854-855 [remand for resentencing when People raise issue of unauthorized sentence on appeal].) In addition, the trial court must either impose or strike the one year enhancement pursuant to section 667.5, subdivision (b). (People v. Langston (2004) 33 Cal.4th 1237, 1241 [one-year enhancement under § 667.5, subd. (b), is mandatory unless stricken].)

Although the information specially alleged that the prior serious felony conviction qualified Hernandez for a five-year enhancement under section 667, subdivision (a)(1), the People did not mention or refer to this special allegation in taking Hernandez’s plea. Accordingly, the People appear to have waived their pursuit of the special allegation under section 667, subdivision (a)(1). (People v. Howard (1992) 1 Cal.4th 1132, 1175 [defendant’s “plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances”].)

6. If Hernandez’s Convictions Are Reinstated, the Abstract of Judgment Must Be Corrected to Reflect a Court Security Fee on the Count for Possession of a Firearm by a Felon

In sentencing Hernandez, the trial court, pursuant to section 1465.8, imposed a total court security fee of $40-$20 per count. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328.) The abstract of judgment, however, reflects only a $20 court security fee on the murder count but no court security fee on the count for possession of a firearm by a felon. If the convictions are reinstated, then the abstract of judgment shall reflect a $20 court security fee as to each count. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [trial court’s oral pronouncement of sentence controls].)

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the trial court with directions to conduct an in camera review of the requested officer personnel records, as identified in this opinion, for discoverable information. If that review reveals such information, the court must order disclosure, allow Hernandez an opportunity to demonstrate prejudice and order a new trial if a reasonable possibility exists that Hernandez would have obtained a better outcome at trial had the information been disclosed. If the review reveals no discoverable information, or that discoverable information exists but Hernandez cannot establish that he was prejudiced by denial of the information, the court must reinstate the judgment of conviction, resentence Hernandez in accordance with this opinion and forward a new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, Hernandez’s convictions are affirmed.

We concur: CHANEY, J., JOHNSON, J.


Summaries of

People v. Hernandez

California Court of Appeals, Second District, First Division
Feb 3, 2011
No. B217868 (Cal. Ct. App. Feb. 3, 2011)
Case details for

People v. Hernandez

Case Details

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

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

Date published: Feb 3, 2011

Citations

No. B217868 (Cal. Ct. App. Feb. 3, 2011)