P. v. Hernandez
Filed 7/6/12 P. v. Hernandez CA2/4
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSE
HERNANDEZ,
Defendant and Appellant.
B234574
(Los
Angeles County
Super. Ct. No.
NA085048)
APPEAL
from judgment of the Superior
Court
of
Los
Angeles County, James B. Pierce, Judge. Affirmed and remanded with directions.
Law
Offices of Russell S. Babcock and Russell S. Babcock, under appointment of the
Court of Appeal, for Plaintiff and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Michael C. Keller, Deputy Attorneys General for Plaintiff and
Respondent.
______________________________
Appellant
Jose Hernandez appeals from the judgment of conviction of
premeditated murder under Penal Code sections 187 and 664, subdivision
(a). The only issue on appeal is whether
there is sufficient evidence to prove deliberation and premeditation. We find sufficient evidence and affirm the
judgment.
On
February
28, 2010, at about 4:00 a.m., Raul
Lopez was awakened by loud voices in an alley next to his residence. He looked out his window at the alley and saw
appellant and another man. Appellant was
talking on his cell phone while drinking a beer. When appellant apparently ended his cell
phone conversation, he approached a fence in the alley and began talking to
Galdino Diaz. There was a cinderblock
wall, approximately four and a half feet high, and a wooden fence,
approximately six and a half feet high between appellant and Diaz. From his vantage point, Lopez saw appellant
but could not see Diaz.
Appellant repeatedly told Diaz to “come here,†and they
argued loudly for two to three minutes.
cinderblock wall and fire a handgun about five times towards Diaz. Two shots hit Diaz in the neck. Lopez heard Diaz scream and saw appellant and
another man in the alley run away.
Jose
Medina, who lived nearby also was awakened by the loud voices. He heard one of the persons tell the other to
come over the fence or wall. He believed
they knew each other because one said, “I brought you into this
neighborhood.†Medina
looked out his window but did not see anyone.
When he turned around to go to his daughter’s room, he heard four
gunshots and heard someone scream.
Officers Ibarra and Lopez responded to the scene and
found Diaz bleeding from his neck. Diaz
underwent emergency surgery
and survived. The doctor noted that if
surgery had not been immediately performed, Diaz would have died.
In May 2010, appellant was charged in count one with
attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187,
subd. (a)); in count two with assault with a firearm (Pen. Code, § 245, subd.
(a)(2)); and in count three with possession of a firearm by a felon (Pen. Code,
§ 12021, subd. (a)(1)). The information
alleged as to count one that appellant had personally and intentionally
discharged a firearm, causing great bodily injury and death (Pen. Code,
§ 12022.53, subd. (d)); that appellant personally and intentionally
discharged a firearm (Pen. Code, § 12022.53, subd. (c)); and that
appellant personally used a firearm (Pen. Code, § 12022.53,
subd. (b)). It was alleged as to
all counts that appellant had suffered prior felony convictions with a prison
term (Pen. Code, § 667.5, subd. (b)), and a prior serious or violent
felony conviction within the meaning of the “Three Strikes†law (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), and 667, subd. (a)(1)).
A jury convicted appellant on all counts and found the
allegations to be true. Appellant
admitted his prior convictions. The
court sentenced appellant to life imprisonment with the possibility of parole
for count one, plus 25 years to life for the firearm enhancement and eight
years for the prior convictions. The
sentences for the other two convictions were stayed under Penal Code section
654. Appellant filed a timely
I
Appellant
challenges his conviction of attempted murder alleging there was insufficient
evidence that he committed the crime with premeditation and deliberation. He contends the evidence demonstrates that he
acted on a rash emotional impulse.
A court reviewing an appeal based on insufficiency of
evidence views the record in the light most favorable to the judgment to
determine if there is substantial evidence from which any reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. (People
v. Castaneda (2011) 51 Cal.4th 1292, 1322.)
The testimony of a single witness is sufficient to support a
conviction. (
535, 585, citing People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘[I]f the circumstances reasonably justify
the jury’s findings, the reviewing court may not reverse the judgment merely
because it believes that the circumstances might also support a contrary
finding.’†(People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 295 (Gonzales and
Soliz), quoting People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
“An intentional killing
is premeditated and deliberate if it occurred as the result of reflection
rather than unconsidered or rash impulse.
[Citation.]†(
213 (Nelson).) “‘Deliberation’ refers to careful weighing of
considerations in forming a course of action; ‘premeditation’ means thought
over in advance. [Citations.]†(People
v. Booker (2011) 51 Cal.4th 141, 172.)
There is no time requirement for reflection as “[t]houghts
may follow each other with great rapidity, and cold, calculated judgment may be
arrived at quickly.†(Nelson,
v. Harris (2008) 43 Cal.4th 1269, 1286–1287 (Harris).) In People v. Anderson (1968) 70
Cal.2d 15, 26–27 (Anderson), the
California Supreme Court identified three types of evidence–planning
activity, preexisting motive, and manner of killing–that assist in reviewing the sufficiency of evidence supporting a finding
of premeditation and deliberation. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) While
the Anderson factors can assist a reviewing court in determining whether there
is sufficient evidence of deliberation and premeditation, “‘[u]nreflective
reliance on Anderson for a definition of premeditation is
inappropriate.’†(Gonzales and Soliz, supra,
52 Cal.4th at p. 294.) Therefore, while
we address the Anderson factors in
the analysis, they are not necessarily dispositive.
Appellant argues
there is no evidence of planning activity prior to the shooting. We disagree. Carrying a weapon to the scene of the crime
makes it ‘“reasonable to infer that [the appellant] considered the possibility
of homicide from the outset.’ [Citation.]†(People
v. Steele (2002) 27 Cal.4th 1230, 1250.)
In People v. Morris (1988) 46 Cal.3d 1, 23, overturned on another
ground in In re Sassounian (1995) 9
Cal.4th 535, the court found that “[d]efendant’s possession of a weapon in
advance of the killing, and his rapid escape to a waiting car moments
afterwards, amply support an inference of planning activity.†In our case, appellant possessed a gun before
initiating contact with Diaz. He
instructed Diaz to come closer to him before the argument. Medina’s testimony that he heard one of the
men say, “I brought you into this neighborhood,†supports the inference that
appellant and Diaz knew each other prior to the argument. Viewing the record in the light most
favorable to the judgment, we conclude a reasonable jury could find appellant
took planning action and at least considered the possibility of murder prior to
the shooting.
There
also was sufficient time during the argument for appellant to plan. As we have discussed, there is no time
requirement for deliberation and premeditation as “[t]houghts may follow each other with great rapidity, and cold,
calculated judgment may be arrived at quickly.†(Nelson, supra, 51 Cal.4th
at 213.) In Nelson, the court upheld the defendant’s conviction for deliberate
and premeditated murder after he “took up a firearm, climbed out of a
moving car, sat on the window frame, reached across the roof, braced himself,
and aimed at [the intended victim].†(
The court stated in performing these actions, the defendant “had ample
time to premeditate and deliberate.†(
Similarly, the court in Harris,
supra, 43 Cal.4th at 1269, upheld a
deliberate and premeditated murder charge when the defendant waited until the
victim’s daughter walked from a door to a service window at a restaurant before
attacking the victim. (
[victim’s daughter] to go from the door to the service window, and to take and
prepare defendant’s order, there was ample time for him to deliberate and
premeditate before attacking [the victim].â€
(Id. at p. 1287)
In
our case, appellant had at least two to three minutes during the argument to
deliberate and premeditate. Here, after
this time elapsed, appellant climbed the fence separating him from Diaz, either
after or before he took out his gun, and fired multiple shots directly at
Diaz. This is about the same amount of
time, or more, than in Nelson, who
grabbed his gun, climbed out of a car, aimed, and fired. As in Harris,
a reasonable jury could find that while appellant waited to attack during the
argument, he had sufficient time to deliberate and premeditate. We therefore conclude a reasonable jury could
find appellant undertook planning activity during the argument.
Appellant next contends
the nature of the crime in this case demonstrates that he shot Diaz as a result
of a sudden emotional outburst. We
disagree. In Gonzales and Soliz, the
defendants approached the victims and argued with them before shooting them at
close range. There, the court found that
a close range shooting without any provocation or evidence of a struggle
supports an inference of premeditation and deliberation. (Id. at
p. 295) Here, appellant approached Diaz,
instructed him to come closer to the fence, argued with him for two to three
minutes, climbed the wall, and then shot him multiple times at
close range. There is no evidence of
provocation or of a struggle during the argument. As in Gonzales
and Soliz, we conclude a reasonable jury could infer appellant’s actions
support a conviction of premeditated and deliberate attempted murder.
After examining the
evidence in the light most favorable to the judgment, we find sufficient
evidence to support appellant’s conviction for deliberate and premeditated
attempted murder.
II
While not raised by either party, we
note that the abstract of judgment does not list the enhancements for which the
court sentenced appellant. We direct the
trial court to amend the judgment to reflect the sentences imposed for these
enhancements.
The
conviction is affirmed. The trial court
is ordered to correct the errors in the abstract of judgment and send a copy to
the Department of Corrections and
Rehabilitation.
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
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[1] The
substance of the argument is unknown because appellant and Diaz were speaking
English and Lopez only understood Spanish.
