Opinion
B323297
07-23-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN HERNANDEZ, Defendant and Appellant.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA451197, Shelly Torrealba, Judge. Affirmed.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
VIRAMONTES, J.
INTRODUCTION
Appellant Juan Hernandez was charged with the murders of Angel Morales and Adolfo Francisco, and associated firearm offenses. Following a jury trial, he was convicted of the second degree murder of Morales and two related firearm counts. He was acquitted of the charges related to the murder of Francisco. On appeal, Hernandez argues the trial court erred when it denied his motion to sever the trial on the charges arising from the two murders under Penal Code section 954. We conclude the trial court did not abuse its discretion or violate due process in denying the severance motion. We accordingly affirm.
Unless otherwise stated, all further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Charged crimes
In an amended information, Hernandez was charged with the July 25, 2016 murder of Francisco (§ 187, subd. (a); count 1), and in connection with that murder, two counts of unlawful firearm activity (§§ 29815, subd. (a), 29820, subd. (b); counts 2-3). In the same information, Hernandez also was charged with the September 29, 2016 murder of Morales (§ 187, subd. (a); count 4), and in relation to that murder, another two counts of unlawful firearm activity (§§ 29815, subd. (a), 29820, subd. (b); counts 5-6). The information alleged that Hernandez committed each murder willfully, deliberately, and with premeditation under section 189, subdivision (a). As to each murder count, the information further alleged firearm enhancements under section 12022.53, subdivisions (b), (c), and (d).
II. Evidence at trial
A. July 25, 2016 murder of Francisco
On July 25, 2016, Francisco was fatally shot on a street corner in the Rampart neighborhood of Los Angeles. He died from a gunshot wound to the back of the head. The crime occurred on a street claimed by the 18th Street gang. At the time of the shooting, Francisco was an 18th Street gang member, and Hernandez was a member of the rival Rockwood gang.
Shortly before the shooting, Hernandez was a few blocks away on a hilltop controlled by Rockwood. He was with three other Rockwood gang members-Arony Nieto known as Miclo, Giovany Cisneros, and Dany Zandoval. At trial, Zandoval testified that Nieto said he wanted to "take a walk to the other side." Zandoval understood this statement to mean that Nieto was going to look for the gang's enemies.
While Zandoval stayed behind, the other three men left together on foot. A short time later, Zandoval heard gunshots. He then saw all three men running back toward the hilltop. When the group returned, Nieto told Zandoval, "I got that fool." Hernandez added that Nieto "lit that fool up."
The police recovered several spent casings from the scene of the shooting. The casings were later matched to a .45-caliber handgun found in the possession of Jose Tenorio, who obtained the gun from Tony Rosas. In an interview with the police, Rosas said an individual named "Miklo," along with some other men, left the gun in a garbage can behind his residence. While Tenorio did not claim gang membership, Rosas was a member of the Rockwood gang.
The police also retrieved surveillance videos from the surrounding area about the time of the shooting. The videos showed Hernandez, Nieto, and Cisneros walking into a nearby apartment building. Hernandez and Neito then left the building, walked through an alley near where Hernandez's mother lived, and continued toward the location of the shooting. A short time later, Hernandez and Neito ran back, and headed toward the hilltop in Rockwood gang territory. Both before and after the shooting, Neito appeared to be carrying an object consistent with a handgun.
B. September 29, 2016 murder of Morales
On September 29, 2016, Morales was fatally shot in an alley in the same Rampart neighborhood where Francisco was killed. Morales died from a gunshot wound to his back. The alley where the shooting occurred bordered the territories claimed by the 18th Street and Rockwood gangs, and was a disputed area between the gangs. At the time of the shooting, Morales was an 18th Street gang member.
Hernandez's mother, Martha Libreros, lived in an apartment building next to the alley. Libreros testified that, on the night of the shooting, she was standing in front of her home when Morales and another man approached. Morales walked up to Libreros in an aggressive manner and appeared to be under the influence of alcohol or drugs. He referred to "people with shaved heads" residing in the home, and repeatedly yelled, "Fuck you, Rockwood." Other women from the neighborhood came to assist Libreros in trying to get Morales to leave. The women surrounded Morales, and forced him into a nearby parking lot. At that point, Morales became more aggressive, pushing Libreros and another woman while yelling obscenities about the Rockwood gang. The women were able to chase Morales away, and he left down the alley. Although Libreros denied at trial that Hernandez was visiting her home on the night of the shooting, she told the police in a prior interview that Hernandez was in fact present that night.
Jennifer M. (Jennifer), Libreros's next-door neighbor, also testified at trial. She witnessed part of Libreros's confrontation with Morales through a peephole in her front door. Jennifer saw a group of females, including Libreros, arguing with Morales in an angry tone. Morales appeared to direct his comments at Libreros, and yelled "Fuck Rockwood" and "Cockwood" multiple times. During the confrontation, Jennifer also heard Hernandez's voice coming from inside Libreros's home because their apartments shared a wall. Hernandez was speaking loudly, and said, "That fool's outside." Jennifer then saw Morales walk toward the parking lot as he claimed membership in the 18th Street gang. A short time later, Jennifer heard several gunshots, but did not see Morales again.
When the police responded to the scene of the shooting, they recovered a number of spent casings in the alley near the parking lot. The following week, Zandoval was arrested for possession of a nine-millimeter firearm. The casings found at the scene of the shooting were matched to the firearm seized from Zandoval. At trial, Zandoval testified that he retrieved the firearm from a "stash spot" used by the Rockwood gang to hide guns. According to Zandoval, Hernandez told him that Morales came to his home and harassed him and his family. Hernandez also said that, when Morales took off, Hernandez followed and fired a few shots at him, but he did not know if Morales was killed.
The police obtained surveillance videos of the parking lot and alley where the incident occurred. The video footage showed Morales walking through the parking lot followed by Libreros. Morales appeared to be agitated, throwing up his hands and turning back toward Libreros, who was also animated. After Morales left and went into the alley, Libreros was joined by several other individuals who pulled her back toward her home. Less than a minute later, Hernandez appeared in the parking lot, running from the direction of his mother's home. He stopped at the entrance to the alley for several seconds with his arms extended in a shooting stance. Hernandez then ran back toward his mother's home as Morales moved toward the spot where his body was found.
III. Jury verdict and sentencing
The jury acquitted Hernandez of all charges related to the shooting of Francisco (counts 1-3). The jury found Hernandez guilty of the second degree murder of Morales (count 4) and the two related charges of unlawful firearm activity (counts 5-6). As to the murder of Morales, the jury also found the firearm enhancements alleged under section 12022.53, subdivisions (b) and (c) to be true. The trial court sentenced Hernandez to state prison for 15 years to life, plus a consecutive 10-year term.
Hernandez filed a timely appeal.
DISCUSSION
On appeal, Hernandez argues the trial court abused its discretion when it refused to sever the trial on the charges arising from the murder of Francisco from those arising from the murder of Morales. Hernandez also asserts this alleged error violated his constitutional right to due process and a fair trial.
I. Relevant proceedings
Prior to trial, Hernandez filed a motion to sever the trial on the counts related to the July 25, 2016 shooting of Francisco from the counts related to the September 29, 2016 shooting of Morales. He contended that the evidence in each case was not sufficiently similar to be cross-admissible. He also claimed that both cases were weak, and that the unprovoked shooting of Francisco was more inflammatory than the shooting of Morales, who instigated the incident.
The trial court denied the severance motion. The court found that the charges were properly joined because they were in the same class of crimes. The court also found that gang evidence in each case would be cross-admissible because the prosecution was alleging that Hernandez had a gang-related motive for both shootings. The court further found that neither case appeared to be substantially weaker or more inflammatory than the other, and instead "share the same critical witness, gang allegations and gang motive."
II. Governing law
"The law favors trying all charged offenses together." (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 746.) Section 954, which governs the joinder of charges, states in pertinent part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court . . . may in its discretion order that the different offenses or counts . . . be tried separately." (Ibid.) Where the statutory requirements for joinder are met," '[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.'" (People v. Gomez (2018) 6 Cal.5th 243, 275.) We review the denial of a severance motion for abuse of discretion. (People v. Vargas (2020) 9 Cal.5th 793, 817.) A" '" 'defendant must make a clear showing of prejudice'"' by demonstrating that the denial 'exceeded the bounds of reason.'" (People v. Westerfield (2019) 6 Cal.5th 632, 689.)
"In determining whether a trial court's refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1) whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case." (People v. O'Malley (2016) 62 Cal.4th 944, 968.) In evaluating these factors, we consider the record before the trial court at the time it made its ruling. (People v. Vargas, supra, 9 Cal.5th at p. 817.) However," '[e]ven if a defendant fails to demonstrate the trial court's joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that "the joint trial resulted in such gross unfairness as to amount to a due process violation." '" (People v. Gomez, supra, 6 Cal.5th at p. 276.)
III. The trial court did not abuse its discretion in denying the severance motion
In challenging the denial of his severance motion on appeal, Hernandez does not dispute that the statutory requirements for joinder were satisfied. The two shootings were of the same class of offenses because they were"' "assaultive crimes against the person." '" (People v. Vargas, supra, 9 Cal.5th at p. 817.) Rather, he contends the trial court erred in refusing to sever the charges because the evidence in each case was not cross-admissible, the Francisco case was inflammatory, and the joint trial of two weak cases likely altered the outcome in the Morales case. We find no abuse of discretion in the trial court's ruling.
"[W]e first consider 'the cross-admissibility of the evidence in hypothetical separate trials.' [Citation.] If the evidence is cross-admissible, then this 'is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges.'" (People v. Gomez, supra, 6 Cal.5th at pp. 275-276.) Hernadez argues the evidence in each case was not cross-admissible because it constituted improper character evidence under Evidence Code section 1101, subdivision (a). However, evidence of other crimes or conduct is admissible under Evidence Code section 1101, subdivision (b) when offered to prove a defendant's motive or intent. (People v. Vargas, supra, 9 Cal.5th at p. 817.) For this purpose, "[a]ll that is needed is for the crimes to be sufficiently similar to support an inference that the defendant probably had the same intent each time." (People v. Anderson (2018) 5 Cal.5th 372, 389.)
Here, the prosecution's theory was that the shootings of Francisco and Morales were both gang motivated, and that the victim in each case was murdered because he was a rival gang member. While Hernandez focuses on differences in the alleged culpability of the two victims, the shootings themselves shared a number of similarities. They occurred two months apart in the same geographical area near the disputed boundary between the 18th Street and Rockwood gangs. They both involved the killing of an 18th Street gang member who was shot from behind by a rival Rockwood gang member. The shooters in both crimes fired multiple rounds at the victim, and then left the gun in a location where it was retrieved by other Rockwood gang members. One of those gang members, Zandoval, was a key witness in both cases, and provided testimony about Hernandez's words and actions after each killing. On this record, the evidence of Hernandez's gang membership and activity, and the ongoing rivalry between the Rockwood and 18th Street gangs, would have been admissible at separate trials to prove that Hernandez had a gang-related motive in each murder. (See People v. Holmes, McClain and Newborn, supra, 12 Cal.5th at p. 747.)
Even if cross-admissibility alone did not justify the trial court's denial of the severance motion, the remaining factors fail to show an abuse of discretion. Hernandez contends the shooting of Francisco was inflammatory because it was "an unprovoked attack that was both senseless and brutal," whereas the shooting of Morales "was a response to significant provocation" by the victim. But both crimes were "senseless and brutal" in that they involved a gang member firing multiple shots at a rival, who was unarmed and appeared to be walking away from his assailant when he was killed. While there was evidence that Morales instigated a confrontation with Hernandez's mother prior to his shooting, this is not a case where "an inflammatory offense [was] being joined to one that is not inflammatory 'under circumstances where the jury cannot be expected to try both fairly.'" (People v. Westerfield, supra, 6 Cal.5th at p. 690.) We likewise reject Hernandez's claim that the joinder of the charges was improper because it could persuade the jury that he had a propensity for violence. "The fact that evidence of two violent crimes might lead a jury to infer that a defendant is violent does not establish that any of the charges were unusually likely to inflame the jury." (People v. Landry (2016) 2 Cal.5th 52, 78.) In this case, neither of the murder charges was more likely than the other to inflame the jury if they were tried together.
Hernandez also asserts that trying the charges together "joined two weak cases, unfairly enhancing the likelihood that the jury would find that the Morales homicide was murder." We disagree. In each case, there was compelling video and eyewitness evidence that placed Hernandez at the scene of the shooting. The central disputed issue before the jury in both cases was whether Hernandez had the requisite state of mind for murder. Hernandez suggests that the evidence in the Morales case was stronger because video footage captured him firing his gun at Morales, while none of the evidence showed him actually participating in the shooting of Francisco. However," 'a mere imbalance in the evidence between the joined crimes does not signal a risk that one charge will be prejudicially bolstered.'" (People v. Gomez, supra, 6 Cal.5th at p. 277.) In assessing the risk of prejudice," '[t]he danger to be avoided is "that strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case" on another crime.'" (People v. Westerfield, supra, 6 Cal.5th at p. 691.) Here, the record fails to demonstrate that any disparity in the relative strength of the two cases required that they be severed. Because Hernandez has not made a clear showing of prejudice, the trial court did not abuse its discretion in denying his severance motion.
IV. Joinder of the charges did not violate Hernandez's constitutional rights
Hernandez argues that, even if the trial court's ruling on his severance motion was proper when it was made, the joint trial on the murder charges deprived him of his constitutional right to due process and a fair trial. He asserts that there was substantial evidence at trial that the shooting of Morales was a heat-of-passion killing, but the jury likely found him guilty of murder based on its knowledge that he was present at the prior shooting of Francisco. We conclude this claim lacks merit.
In evaluating Hernandez's constitutional claim," 'we must . . . inquire whether events after the [trial] court's ruling demonstrate that joinder actually resulted in "gross unfairness" amounting to a denial of [the] defendant's constitutional right to fair trial or due process of law.'" (People v. O'Malley, supra, 62 Cal.4th at pp. 969-970.) "[A] judgment will be reversed on this ground only if it is reasonably probable that the jury was influenced by the joinder in its verdict of guilt." (People v. Simon (2016) 1 Cal.5th 98, 129-130.) In this case, there is nothing in the record to suggest that the jury was unable to weigh the evidence in each shooting and to decide each count separately. Indeed, the jury found Hernandez not guilty of the counts related to the murder of Francisco. The jury also found Hernandez not guilty of the first degree murder of Morales, and instead returned a verdict of second degree murder. Where, as here, "the jury returns a guilty verdict of a lesser crime, or . . . fails to convict at all on some charges, we are confident the jury was capable of, and did, differentiate among defendant's crimes." (People v. Jones (2013) 57 Cal.4th 899, 927; accord, People v. Simon, at p. 130.)
Moreover, contrary to Hernandez's contention, there was strong evidence supporting the jury's verdict of second degree murder in the Morales case. The evidence at trial showed that Hernandez was aware of Morales's presence outside his mother's home as Morales shouted obscenities about Hernandez's gang. As Morales was leaving the scene, Hernandez followed him into an alleyway that was a disputed area between their gangs. Hernandez then fired multiple shots at Morales, striking him in the back as he was walking away. Considering the totality of the record, it is not reasonably probable that the jury was influenced by the joinder of the charges in its verdict of guilt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.