Hernandez v. Super. Ct.

Filed 11/14/08 Hernandez v. Super. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Petitioner Eric Saternino Hernandez petitions for a writ of prohibition or mandate after his Penal Code section 995 motion was denied. Hernandez is charged by information with attempted lewd or lascivious conduct (Pen. Code, 288, subd. (a), 664) and attempted kidnapping to commit a sexual offense (Pen. Code, 209, subd. (b)(1), 664). He maintains that the information should be set aside because the evidence at the preliminary examination was not sufficient to support the magistrates order holding him to answer on these charges. We agree and issue a peremptory writ of prohibition restraining the respondent court from taking any action other than dismissing the information.

I. Evidence Presented At Preliminary Examination

Between 5:00 p.m. and 5:15 p.m. on November 27, 2005, while it was still light outside, 13-year-old S. and her 16-year-old sister M. left their house on foot to pick up a CD from M.s friend.[1] M.s friend lived nearby, and M. and S. were planning to meet him halfway between their homes. The two girls walked up their street, which ran from west to east, on the north sidewalk to the northwest corner of their street and Loma Prieta Drive. A car heading north on Loma Prieta Drive was stopped at the intersection, so the girls waited at the corner for it to pass through the intersection. However, the car was taking a while, so the girls proceeded into the street.

When they were about halfway across the street, the northbound car started to go. The girls stopped, and the car turned to the sidewalk and blocked us [from] finish[ing] crossing the rest of the street. The car stopped right in front of them, and the cars drivers side window was right next to where the girls were walking. The girls turned to walk around the back of the car to get to the other side of the street, but stopped when the male driver of the car asked them for directions. The driver asked where Blossom Hill was. The girls remained at least a foot away from the car, and M. gave the driver really simple directions to Blossom Hill. She told him to go straight, turn right on Calero and then turn left on Blossom, which would lead him to Blossom Hill.

The driver was whispering and sound[ed] confused, like he didnt know where he was going. He was talking low so that you kind of had to step a little bit closer to hear him. M. repeated her directions several times because the driver did not seem to understand her. The driver did not make eye contact with M. but instead made eye contact with S. The driver kept on asking, Go this way? Go this way? but he did not seem interested in the directions M. was providing.

When the driver continued to ask for directions, M. moved closer to the car, but S. indicated to M. to step back. S. was tired of the conversation with the driver and found it weird and kind of annoying. M. finally got, like, fed up, and she moved away from the car. The two girls turned and started to leave. The driver said [t]hank you. You girls are beautiful girls and smiled. The girls started to walk away, but the driver said [o]h, you guys know where the nearest gas station is? Both girls pointed west towards the gas station and said over there. The driver asked them what school they attended. M. said [t]hats none of your business. He said: Oh, Im asking you because Im a teacher. The girls walked away, and crossed behind the car. When they looked back, they saw that the car had proceeded north.

The girls were disturbed by the encounter, and decided to run. They ran down the street and turned north on Chesbro. When they came upon families outside in the vicinity, they stopped running. S. heard a noise behind her, and she looked back and saw the same car they had encountered at the intersection. The driver, who was northbound on Chesbro, stopped the car in the middle of the road adjacent to them and asked for directions again. The girls remained on the sidewalk near a house. M. yelled at him [l]eave us alone. He pointed down the street toward Blossom Hill as if to ask if that was the way to Blossom Hill, and M. yelled [y]es. The car proceeded northbound on Chesbro and turned left at the corner. At no time during either encounter did the driver get out of his car, try to reach for the girls, or suggest that either of the girls to get into his car.

The girls continued on their way, turned right on Calero, and met up with M.s friend. When they returned home, they told their mother about the driver. Their mother called the police. Meanwhile, the girls looked up the Megans Law website and examined photographs of the sex offenders in their area. After looking through a lot of pictures[,] they came upon Hernandezs picture. The girls concluded that Hernandez was the driver they had encountered.

The police went to Hernandezs home that evening, and they found a pornographic DVD playing in a player device under a small television. The television was not displaying the pornographic DVD.

At the preliminary examination, the prosecution presented evidence, over Hernandezs objection, that, in December 1982, Hernandez had kidnapped and raped a 17-year-old girl who was walking to school in the morning. The victim was a small, Hispanic female. The 1982 crime occurred just two miles from the location of the November 2005 events. Hernandez, who was 22 years old in December 1982, came up behind the victim, held a weapon to her throat and took her behind some buildings. After blindfolding her, he took her to a nearby apartment, undressed her, forced her to orally copulate him, and then raped her. He dressed her, took her back outside blindfolded, and released her.

II. Procedural Background

Hernandez was initially charged by misdemeanor complaint with two counts of annoying or molesting a child under 18 (Pen. Code, 647.6, subd. (a)). He was subsequently charged by felony complaint with attempted kidnapping to commit a sexual offense (Pen. Code, 209, subd. (b)(1), 664) and attempted lewd or lascivious conduct on a child under 14 (Pen. Code, 288, subd. (a)). The felony complaint also alleged that Hernandez had suffered four prior strike convictions (Pen. Code, 667, subds. (b)-(i), 1170.12). An amended felony complaint added a single misdemeanor count of annoying or molesting a child under 18 (Pen. Code, 647.6, subd. (a)).

The November 2007 preliminary examination resulted in Hernandez being held to answer on both felony counts. The subsequently filed information charged him with the two felony counts and alleged the four prior strike convictions. Hernandez filed a Penal Code section 995 motion seeking to set aside the information on the ground that the evidence presented at the preliminary examination did not provide reasonable cause to believe that he had committed the charged offenses. The motion was denied, and he filed this writ petition and requested a stay of the trial court proceedings. This court stayed the trial court proceedings, issued an order to show cause, and appointed counsel to represent Hernandez.

III. Discussion

A. Standard of Review

When we review a section 995 motion, we disregard [ ] the ruling of the superior court and directly review[ ] the determination of the magistrate. [Citations.] We conduct an independent review of the evidence, but will not substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 654.)

An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citation.] On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated. [Citation.] Neither the trial court in a section 995 proceeding [citations] nor a reviewing court on appeal therefrom [citations] may substitute its judgment as to the weight of the evidence for that of the committing magistrate. Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrates order. [Citation.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. (People v. Hall (1971) 3 Cal.3d 992, 996.)

B. The Elements of An Attempt

An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. (Pen. Code, 21a.) Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. . . . When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime. (People v. Medina (2007) 41 Cal.4th 685, 694, internal citations and quotation marks omitted.)

For an attempt, the overt act must go beyond mere preparation and show that the [perpetrator] is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes [citation], nor need it satisfy any element of the crime. [Citation.] However, as we have explained, [b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made. [Citations.] [I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).) Although a definitive test has proved elusive, we have long recognized that [w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt. (Decker, at p. 8.)

The purpose of requiring an overt act is that until such act occurs, one is uncertain whether the intended design will be carried out. When, by reason of the defendants conduct, the situation is without any equivocality, and it appears the design will be carried out if not interrupted, the defendants conduct satisfies the test for an overt act. (Decker, supra, 41 Cal.4th at p. 13.) Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case. (Decker, at p. 14.)

C. Analysis

The ultimate question before us is whether Hernandezs actions eliminated any uncertain[ty] or equivocality about whether he would actually embark on the commission of kidnapping or lewd conduct if he was not interrupted.[2] (Decker, supra, 41 Cal.4th at p. 13.) Although a magistrate need only conscientiously entertain a strong suspicion that an attempt has been committed, that suspicion must be based on evidence. Our careful examination of the evidence presented at the preliminary examination does not disclose any evidentiary basis for such a suspicion.

The evidence presented at the preliminary examination showed that Hernandez engaged in a series of acts. Initially, he drove his car up beside the two young girls as they were crossing the street, impeding their progress. Hernandez then asked the girls, using a low voice or whisper, for directions to Blossom Hill, a major street that was in the vicinity. A reasonable magistrate could strongly suspect that Hernandez used a whisper to draw the girls closer to his car. However, neither girl came within a foot of his car, and Hernandez never opened the door of his car, asked either of the girls to come closer, or reached out toward either of them. Hernandezs actions in positioning his car in the girls path and whispering to them did not remove any uncertainty about whether he would actually engage in a kidnapping or lewd conduct. His course of conduct made his commission of a kidnapping or lewd conduct possible, but his actions remained merely preparatory and did not amount to the requisite unequivocal overt act that is necessary to constitute an attempt.

The remainder of Hernandezs first encounter with the girls did not eliminate uncertainty about whether he would actually engage in the commission of kidnapping or lewd conduct. Although M. repeatedly provided him with simple directions, Hernandez acted confused, kept repeating his request for directions, and looked only at her younger sister. When the girls began to walk away, Hernandez told them they were beautiful, asked them where they went to school, and sought directions to the nearest gas station. A reasonable magistrate could strongly suspect that Hernandezs expressions of confusion and his repeated requests for more information were part of a nefarious ruse intended to prolong his encounter with the girls. Hernandezs visual focus on the younger girl and his comment on their physical appearances could have caused a reasonable magistrate to strongly suspect that Hernandez had a sexual interest in one or both girls. While Hernandezs acts prolonged the encounter, thereby providing an opportunity for him to put his plan into action, Hernandez did not act upon this opportunity. He did nothing that demonstrated without any equivocality that he would actually embark on, rather than merely contemplate, commission of kidnapping or lewd conduct. Hence, his conduct failed to cross the line between preparation and action.

Nor did the requisite overt act occur during Hernandezs final encounter with the girls. After the girls walked away from him, Hernandez contrived to encounter them again. He drove around the area until he relocated them. He then stopped his car in the middle of the street, while the girls were on the sidewalk near a house, and he repeated his request for directions. The girls were nowhere near his car, and Hernandez did nothing directed at making physical contact with them. He did not move his car closer to them or get out of his car. Hernandez did not ask the girls to come closer or even revert to whispering. A reasonable magistrate could have strongly suspected that Hernandez pursued and renewed his encounter with the girls with illicit intent. However, Hernandezs acts, like his earlier acts, did not cross the line that separates preparation from an overt act toward commission of a crime. His briefly renewed encounter with the girls, while providing another opportunity for him to put his plan into action, did not result in his utilization of this opportunity to take action on his plans.

The evidence presented at the preliminary examination was devoid of any indication that Hernandezs acts had crossed the line between preparation for the commission of kidnapping or lewd conduct and an overt act that without any equivocality demonstrated that a kidnapping or a lewd or lascivious act would be carried out if not interrupted. (Decker, supra, 41 Cal.4th at p. 13.)

We do not make this decision lightly, but we are bound by Decker. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Hernandez never engaged in an act that removed uncertainty and equivocality from his course of conduct. His conduct never showed that he had actually embarked on the commission of kidnapping or lewd conduct, rather than merely prepared for the possible commission of such offenses. He neither verbally nor physically made the slightest move toward actually accomplishing a touching or an asportation, and there was no indication that such acts would unequivocally or certainly occur if he was not interrupted. Had Hernandez reached out for or touched one of the girls, exited his car and approached the girls, or encouraged one of the girls to enter his car, we would have no difficulty in concluding that his acts had gone beyond preparation into action. The evidence discloses that Hernandez never took any such unequivocal action. Since the evidence presented at the preliminary examination is not sufficient to support the magistrates findings, Hernandez could not be held to answer on these charges, and the superior court erred in denying his Penal Code section 995 motion.

IV. Disposition

Let a peremptory writ of prohibition issue restraining respondent court from taking any further action against Hernandez based upon the information in the above-entitled action, other than vacating its March 7, 2008 order denying Hernandezs Penal Code section 995 motion to set aside the information and entering a new order granting such motion.  This opinion is made final as to this court seven days from the date of filing.  (Cal. Rules of Court, rule 8.264(b)(3).)  The temporary stay order shall remain in effect until finality of this decision.

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Mihara, J.

WE CONCUR:

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Rushing, P.J.

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McAdams, J.

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Hernandez v. Superior Court (The People)

H032743

[1] No testimonial evidence was presented at the preliminary examination of the ages of the two girls. However, Hernandez does not dispute that the girls were 13 and 16 years old in November 2005.

[2] We will assume that a reasonable magistrate could have concluded that Hernandezs 1982 offenses supported a reasonable suspicion that he harbored the requisite specific intents for the charged attempt offenses.