P. v. Hernandez
Filed 1/23/14 P. v.
Hernandez CA6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL HERNANDEZ,
Defendant and Appellant.
H039090
(Santa Clara County
Super. Ct. No.
C1233989)
I. Introduction
Defendant
Raul Hernandez appeals after a jury convicted him of attempted first degree
burglary (count 1; Pen. Code, §§ 459, 460, subd. (a), 664
with a true finding on the allegation that the attempted burglary was a violent
felony under section 667.5, subdivision (c)(21) because a person other than an
accomplice was present in the residence during its
tools (count 2; § 466), Defendant was
sentenced to a three-year prison term, which included a concurrent term for
count 2.
On
appeal, defendant contends: (1) trial
counsel was ineffective for failing to object to evidence that the victim believed
defendant could hear him during a 9-1-1 call; (2) the trial court erred by
instructing the jury that it could use evidence of defendant’s flight to show
his consciousness of guilt, pursuant to CALCRIM No. 372; (3) the term for possession
of burglary tools (count 2) should have been stayed pursuant to section 654; and
(4) the section 667.5, subdivision (c)(21) allegation must be stricken as it
does not apply to attempted burglary.
We
agree that the term for possession of burglary tools (count 2) should have been
stayed pursuant to section 654 and that the attempted burglary was not a
violent felony under section 667.5, subdivision (c)(21). We will reverse the judgment and remand for
resentencing.
II. Background
A. The
Attempted Burglary
On
Monday, June 4,
2012, Eric Wardell was working from his
home on Porter Lane in San Jose. He was in the master
bedroom, which was above the front door, when he heard the doorbell ring. He looked down from the window, which was
partially open. He saw two men at the front
door. Both men were wearing black pants
and black hooded sweatshirts with the hoods pulled up.
The
men were repeatedly ringing Wardell’s doorbell and knocking on the door. Wardell did not know them, and he was not
expecting any visitors. After about
three to five minutes, he called 9-1-1.
Wardell
told the 9-1-1 dispatcher that he thought someone was trying to break into his
house. He explained that the men kept
ringing the doorbell and that they were “listening very closely against the
door.†He described their “all dark
clothing.†Wardell then told the
dispatcher that the men were also “knocking on the door now.†The dispatcher assured Wardell that deputies
were on the way and asked Wardell to remain on the phone.
Wardell
then saw one of the men pull out a screwdriver and attempt to “jimmy†the door
lock. Speaking more quickly, he told the
dispatcher, “they’re trying to break the door, they’re trying to break the
door†and “they’re breaking the door.â€
The dispatcher instructed Wardell to lock himself in a room in the
house, and Wardell complied by locking his bedroom door.
Wardell
saw the men look up while he was talking to the dispatcher. He then watched them walk down the street and
head north, and he told the dispatcher he thought the men had left. He stated, “They walked away. I think they heard me on the phone.â€
Wardell
testified that there was a “slight
indentation†in the door after the incident. When he first spoke to a sheriff’s deputy, he
had been unsure whether there was any damage to the door. Wardell could not identify defendant at trial.
B. Defendant’s
Arrest
Deputy
Sheriff Richard Rodriguez responded to the area of Wardell’s residence. Just around the corner from Wardell’s house,
on Piazza Way, he saw two individuals matching the reported description: both were wearing black hooded sweatshirts
and black pants. He stopped them and,
along with another deputy, detained them.
Defendant was one of the two individuals.
Deputy
Rodriguez found a screwdriver in the front yard of a residence, about 10 feet
from where he had detained defendant. He
administered the Miranda
warnings to defendant, who admitted he had been knocking on Wardell’s
door. Defendant claimed he had been
looking for a friend who owed him $40. Defendant
was “unsure on what street or what house [the friend] lived at, but he knew it
was a two-story house.†Defendant denied
he or his companion had possessed a screwdriver.
C. Verdicts
and Sentencing
The
jury found defendant guilty of attempted first degree burglary (count 1;
§§ 459, 460, subd. (a), 664) and possession of burglary tools (count 2; §
466), and it found true the allegation that a person other than an accomplice
was present in the residence during the commission of the attempted burglary (§
667.5, subd. (c)(21)).
At
sentencing, the trial court denied
three years for attempted burglary (count 1) and a concurrent six-month term
for possession of burglary tools (count 2).
III. Discussion
A. Ineffective
Assistance of Counsel
Defendant
contends trial counsel was ineffective for failing to object to evidence that Wardell
believed defendant heard him talking to the 9-1-1 dispatcher. He contends effective counsel would have
sought to redact the portion of the 9-1-1 call in
which Wardell stated, “I think they
would have objected to similar evidence that was admitted through the testimony
of Deputy Rodriguez.
1. Proceedings
Below
During
motions in limine, the prosecution sought to introduce the transcript and
recording of the 9-1-1 call based on Evidence
Code sections 1240 (spontaneous statement) and 1241 (
indicated his only concern was having the opportunity to cross-examine Wardell. He indicated that since Wardell would be testifying,
that would not be an issue. The trial
court granted the prosecution’s motion to
introduce the 9-1-1 call.
As
noted above, during the 9-1-1 call, Wardell told the
dispatcher, “I think they heard me on the phone.†Trial counsel did not seek to redact that
statement from the recording or
when the 9-1-1 call was introduced into evidence at trial.
Trial
counsel did object when Wardell testified, “I think they heard my voice coming
from the second floor.†Trial counsel argued
that Wardell’s testimony was speculative.
The trial court sustained the objection and instructed the jury to
disregard the statement.
Trial
counsel did not object when Deputy Rodriguez subsequently referred to Wardell’s
belief that defendant could hear him on the phone. Deputy Rodriguez testified: “[Wardell] did not want to be involved with
the investigation. He was in fear of
retaliation, because he’s the one who called 9-1-1,
and he thought they had heard him talking on the phone from his room.â€
2. Analysis
“To
prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. [Citations.]
Counsel’s performance was deficient if
the representation fell below an objective standard of reasonableness under
prevailing professional norms. [Citation.]
Prejudice exists where there is a
reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.†(People
v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides), citing Strickland v. Washington (1984) 466 U.S.
668, 687-688, 693-694.)
Defendant
contends that Wardell’s statement “I think they heard me on the phone†was
speculative and thus inadmissible under Evidence Code section 702.
his objection to Wardell’s trial testimony on that basis. He asserts that effective trial counsel would
have raised the same objection with respect to the 9-1-1
call and Deputy Rodriguez’s testimony.
The
Attorney General contends that under Evidence Code section 800,
Wardell’s belief that defendant and his companion heard him on the phone with
the 9-1-1 dispatcher was permissible lay witness opinion evidence, and thus
that an objection would not have been meritorious.
Under
Evidence Code section 800, “[a] lay witness generally may not give an opinion
about another person’s state of mind, but may testify about objective behavior
and describe behavior as being consistent with a state of mind. [Citation.]â€
(People v. DeHoyos (2013) 57 Cal.4th 79, 130-131 (
impression of what he or she observes regarding the appearance and demeanor of
another rests on ‘subtle or complex interactions’ between them [citation] or
when it is impossible to otherwise adequately convey to the jury the witness’s
concrete observations. [Citations.]†(Id. at p. 130; see People v. Medina (1990) 51 Cal.3d 870, 887
[witness could give his opinion that the defendant understood what the witness
was saying].)
Here,
it is a close question whether Wardell’s statements would have been admissible
under Evidence Code sections 702 and 800.
At least arguably, it was not “impossible to otherwise adequately
convey†the objective facts that Wardell had observed about defendant and his
companion. (DeHoyos, supra, 57
Cal.4th at p. 130.) However, even
assuming that effective counsel would have successfully objected to all of the
evidence concerning Wardell’s belief that defendant heard him talking on the
phone, there is no “reasonable probability that . . . the result of the
proceeding would have been different.†(Benavides,
supra, 35 Cal.4th at p. 93.)
First,
considering Wardell’s admissible testimony, the jury likely would have reached
the exact same conclusion: that
defendant had heard Wardell talking on the phone. Wardell testified that defendant and his
companion had been knocking on the door and listening at the door. He testified that he was talking to the 9-1-1 dispatcher from a bedroom right above the front door, and that the
window was partially open. He testified
that he saw the two men look up while he was talking to the dispatcher about
the men trying to break in, and that the men subsequently left. Based on this testimony, a reasonable juror
would have concluded that defendant and his companion heard Wardell talking to
the 9-1-1 dispatcher.
Further,
even without Wardell’s statement, the evidence of defendant’s guilt was very
strong. Since defendant and his
companion had been knocking on the door and listening at the door, it was clear
that they were concerned about the presence of someone in the house. They left the Wardell residence right after
Wardell began telling the dispatcher that the two men were “breaking the doorâ€
and after Wardell – who was in a bedroom right above the front door, with a
partially open window – saw the men look up.
Defendant was detained soon afterwards, very close to Wardell’s
residence, with a screwdriver found just 10 feet away. Defendant admitted he had been knocking on
Wardell’s door. His story about trying
to find a friend was not credible, since he admitted not knowing where his
friend lived. Considering these facts, even
if the jury had not heard Wardell’s stated belief that defendant heard him
talking on the phone, there is no reasonable probability that it would not have
convicted defendant of attempted burglary or possession of burglary tools.
B. Flight
Instruction
Defendant
contends the trial court erred by instructing the jury that it could use
evidence of his flight to show a consciousness of guilt, pursuant to CALCRIM
No. 372.
1. Proceedings
Below
Defendant
objected to the flight instruction below. He argued there was no evidence that he had
fled, noting that Wardell had testified that the two men had not walked
hurriedly away nor looked back at the house.
Defendant further noted that he had not fled when approached by Deputy
Rodriguez.
The
prosecutor argued that it was a reasonable inference that defendant had left
Wardell’s residence after hearing Wardell speak in an urgent voice to the 9-1-1 dispatcher. The trial court
found the issue was “a question of fact for the jury†and ruled that the flight
instruction would be given.
During
argument to the jury, the prosecutor asserted that defendant had stopped trying
to enter Wardell’s house either because of the “interrupt[ion]†by Wardell or
because of his “lack of success.†He
argued that defendant had walked away either because he knew the police were
coming or because he was “going somewhere else.†Defendant argued that he had not fled.
Pursuant
to CALCRIM No. 372, the trial court instructed the jury: “If the defendant fled immediately after the
crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is
up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled
cannot prove guilt by itself.â€
2. Analysis
“Penal
Code section 1127c requires that whenever evidence of flight is relied on to
show guilt, the court must instruct the jury that while flight is not
sufficient to establish guilt, it is a fact which, if proved, the jury may
consider.†(People v. Pensinger (1991) 52 Cal.3d 1210,
1243.) An instruction on flight is
appropriate if there is substantial evidence the defendant departed the crime
scene under circumstances suggesting the movement was motivated by a
consciousness of guilt. (People v.
Howard (2008) 42 Cal.4th 1000, 1020.)
The law does not require the physical act of running, only a purpose to
avoid being detained. (People v.
Abilez (2007) 41 Cal.4th 472, 522.) “To
obtain the instruction, the prosecution need not prove the defendant in fact
fled, i.e., departed the scene to avoid arrest, only that a jury could
find the defendant fled and permissibly infer a consciousness of guilt from the
evidence.†(People v. Bonilla
(2007) 41 Cal.4th 313, 328 (Bonilla).)
Defendant
claims the “circumstances of departure†in his case “do not indicate
consciousness of guilt in any way.†We
disagree. As the prosecutor argued, the
evidence was susceptible of two reasonable inferences: that defendant and his companion left because
they heard Wardell talking on the phone and wanted “to avoid being observed or
arrested†(see People v. Crandell (1988) 46 Cal.3d 833, 869, abrogated on other grounds by People
v. Crayton (2002) 28 Cal.4th 346, 364-365), or that defendant and his
companion left because they were unsuccessful in gaining entry. As the trial court found, it was the jury’s
function to determine which of these two inferences to draw. Thus, the flight instruction was properly
given. (See Bonilla, supra, 41
Cal.4th at p. 329 [flight instruction proper where the jury “could attribute an
innocent explanation†to the defendant’s conduct “but it could also infer that
his departure and the circumstances thereof were consistent with and supported
the prosecution’s theoryâ€].)
C. Section 654
Defendant
contends the term for possession of burglary tools (count 2) should have been
stayed pursuant to section 654 because it was committed as part of the same
course of conduct, and with the same objective, as the attempted burglary
(count 1).
1. Legal
Principles
Subdivision (a) of section 654 provides that
“[a]n act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. . . .†The purpose of the statute is to ensure that
the punishment is commensurate with the defendant’s culpability. (People v. Perez (1979) 23 Cal.3d 545,
550-551 (Perez).)
“The proscription against double punishment in
section 654 is applicable where there is a course of conduct which violates
more than one statute and comprises an indivisible transaction punishable under
more than one statute within the meaning of section 654. The divisibility of a course of conduct
depends upon the intent and objective of the actor, and if all the offenses are
incident to one objective, the defendant may be punished for any one of them
but not for more than one. [Citations.]â€
(People v. Bauer (1969) 1 Cal.3d
368, 376.) “On the other hand, if the
evidence discloses that a defendant entertained multiple criminal objectives
which were independent of and not merely incidental to each other, he [or she]
may be punished for the independent violations committed in pursuit of each
objective even though the violations were parts of an otherwise indivisible
course of conduct.†(Perez, supra, 23
Cal.3d at p. 551, fn. omitted.)
“Whether
section 654 applies in a given case is a question of fact for the trial court,
which is vested with broad latitude in making its determination.†(People v. Jones (2002) 103 Cal.App.4th
1139, 1143.) On appeal we defer to
express or implicit determinations that are based upon substantial evidence. (Cf. People v. Osband (1996) 13 Cal.4th
622, 730-731.)
2. Analysis
In
the context of firearms, courts have held that if the evidence demonstrates
only that “fortuitous circumstances put the firearm in the defendant’s hand only
at the instant of committing another offense,†section 654 bars separate
punishment for illegal possession of a firearm. (People v. Ratcliff (1990) 223
Cal.App.3d 1401, 1412; see People v. Venegas (1970) 10 Cal.App.3d 814, 821
[section 654 prohibited punishment for both assault and being a felon in
possession of a firearm where there was no evidence that the defendant had
possessed the gun before the shooting took place].) However, “section 654 is inapplicable when
the evidence shows that the defendant arrived at the scene of his or her
primary crime already in possession of the firearm.†(People v. Jones (2002) 103 Cal.App.4th
1139, 1145.)
Unlike
possession of a firearm by a convicted felon, possession of a screwdriver is
not illegal absent the contemporaneous intent to use the screwdriver to commit
a burglary. (People v. Kelly (2007)
154 Cal.App.4th 961, 968 [section 466 applies to tools “that the evidence shows
are possessed with the intent to be used for burglaryâ€]; People v. Southard
(2007) 152 Cal.App.4th 1079, 1084-1085.)
Thus, defendant’s antecedent possession of the screwdriver is not the
sole criterion for determining whether section 654 applies in this case. Rather, we must determine whether the
evidence supported a finding that defendant possessed the screwdriver for the sole
purpose of burglarizing Wardell’s home, in which case he had only one intent
and objective and section 654 would prohibit multiple punishment, or a finding
that defendant possessed the screwdriver with the intent to burglarize other
homes, in which case section 654 would not apply.
The
evidence here shows that defendant possessed the screwdriver with the intent to
use it to commit the instant attempted burglary. There is no evidence that he had used the
screwdriver to commit or attempt any prior burglaries or that he intended to commit
future burglaries with the screwdriver. Thus, the evidence shows that defendant’s
possession of the screwdriver was incidental to his commission of the attempted
burglary in this case. Without
substantial evidence that defendant harbored multiple criminal objectives in
possessing the screwdriver, multiple punishment is prohibited by section 654.
(See Perez,
supra, 23 Cal.3d at p. 551.)
D. Violent
Felony Allegation
Defendant
contends the section 667.5, subdivision (c)(21) allegation must be stricken
because it does not apply to attempted burglary. The Attorney General concedes that section 667.5,
subdivision (c)(21) does not apply to attempted burglary. We find the concession appropriate.
Section
667.5, subdivision (c) lists offenses that are “ ‘violent
felon[ies].’ †Subdivision (c)(21)
provides that one such violent felony is “[a]ny burglary of the first degree,
as defined in subdivision (a) of Section 460, wherein it is charged and proved
that another person, other than an accomplice, was present in the residence
during the commission of the burglary.â€
Section 667.5, subdivision (c) does not specify that
are also violent felonies. (Compare §
1192.7, subd. (c)(39) [“ ‘serious felony’ †includes “any attempt to
commit a crime listed in this subdivision other than an assaultâ€]; see People
v. Ibarra (1982) 134 Cal.App.3d 413, 425
[“Section 667.5, subdivision (a), does not
apply to attempts to commit the crimes referred to as violent felonies.â€].)
In
denying probation, the trial court found that defendant was “statutorily
ineligible,†apparently due to the section 667.5, subdivision (c)
allegation. Since attempted burglary is
not one of the enumerated crimes in section 667.5, subdivision (c), defendant
was not in fact statutorily ineligible for probation. Although the trial court also specified that
it was denying probation based on the fact defendant had failed when previously
placed on probation,
name="_ftnref5" title="">[5]
we believe it is appropriate to remand the matter for resentencing so the court
may reconsider whether to grant probation.
IV. Disposition
The
judgment is reversed. The trial court is
directed to vacate the true finding on the allegation that the attempted
burglary (count 1; §§ 459, 460, subd. (a), 664) was a violent felony pursuant
to section 667.5, subdivision (c)(21). The
trial court shall
>
resentence defendant. If probation is denied, the trial court is
directed to stay the sentence for possession of burglary tools (count 2;
§ 466) pursuant to section 654.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
name="_ftn1" title="">
references are to the Penal Code unless otherwise noted.
name="_ftn2" title=""> [2]
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