Filed 9/16/26 P. v. Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B343948
(Super. Ct. No. 2022022300)
Plaintiff and Respondent, (Ventura County)
v.
EMIGDIO HERNANDEZ, JR.,
Defendant and Appellant.
Emigdio Hernandez, Jr., walked into a 7-Eleven, took some
beer, and walked out without paying. When the store owner tried
to retrieve the beer, appellant attacked him. A jury convicted
appellant of robbery (Pen. Code, § 211)1 rather than the lesser
offenses of theft and battery. Appellant contends the prosecutor
committed prejudicial misconduct by encouraging the jury to
consider punishment when she mentioned that the robbery was a
felony and the lesser offenses were misdemeanors. We reject
appellant’s contention and affirm the judgment.
1 All further statutory references are to the Penal Code.
Procedural Background
In February 2023, the Ventura County District Attorney
filed a one-count information charging appellant with robbery. (§
211.) The information alleged appellant suffered a prior strike
conviction (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) &
(c)(1)) and a prior serious felony conviction (§ 667, subd. (a)(1)). It
also alleged five aggravating factors for sentencing. (Cal. Rules
of Court, rule 4.421(b)).
After a jury trial, appellant was convicted of second degree
robbery. In a bifurcated trial, the jury found the prior allegations
and multiple aggravating circumstances true. The trial court
exercised its discretion to strike the prior serious felony
conviction enhancement and sentenced appellant to a total of four
years in state prison, comprised of the low base term of two years,
doubled pursuant to the “Three Strikes” law.
Factual Background
The Prosecution’s Case
On September 1, 2022, Vidya Jayakulasooriya and his
wife, Kauschalya DeSilva, were working at the 7-Eleven store
they own in Ventura when appellant walked in, took two cases of
beer, and left without paying. DeSilva, who was at the register,
screamed to her husband in the back room. Jayakulasooriya,
who was wearing an ash-colored shirt with a two-inch 7-Eleven
logo on it, ran out of the store after appellant.
When Jayakulasooriya tried to grab the beer from
appellant, one of the cases ripped and beer bottles fell to the
ground. Without saying a word, appellant placed the other case
of beer on the ground and tried to punch Jayakulasooriya
approximately three or four times. Jayakulasooriya retreated
2
but one of the punches struck him in the mouth, causing a visible
injury.
After Jayakulasooriya returned to the store, appellant
picked up the unbroken case of beer, walked to a car that was
about 100 meters away, entered the passenger side and told the
driver, “go, go, go.” The car drove away. The incident was
captured on the store’s video surveillance.
Ventura Police Officer Evan Gonzalez responded to the
store at approximately 1:16 p.m. He viewed the surveillance
video and left. Shortly thereafter, at approximately 3:35 p.m.,
Officer Gonzalez responded to a call at the Star Lounge Bar
regarding an inebriated customer. As Officer Gonzalez was
tending to the customer, he saw appellant walking down the
street, wearing the same clothing as the suspect in the video
surveillance from the 7-Eleven store.
Officer Gonzalez detained appellant, who appeared to be
intoxicated. After reading appellant his rights, appellant
admitted that he did not pay for the beer and offered to “go pay
for it right now.” He claimed that he “remember[ed] everything,”
that the storeowner threw a beer at him and tried to “swing” at
him, and that they were both swinging at each other.
Jayakulasooriya subsequently identified appellant in a
field-show up.
The Defense Case
Appellant testified that at the time of the incident, he was
intoxicated and thought he had paid for the beer. He did not
know Jayakulasooriya was the store owner. Appellant worked at
a 7-Eleven and knew their uniform “well.” Jayakulasooriya was
not wearing a uniform. When Jayakulasooriya grabbed
appellant’s hand, they started “scuffling.” Appellant did not fight
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Jayakulasooriya to keep the beer. Instead, he did not know who
Jayakulasooriya was, but he had invaded appellant’s personal
space by touching him. After the incident, appellant left the
unbroken case of beer “over at the corner,” and the officers “didn’t
look too hard because they would have found it.”
Appellant also testified that he was drunk when he told
Officer Gonzalez that Jayakulasooriya threw a beer at him, that
it “didn’t happen.” On cross examination, appellant admitted
that he was aware that he took the beer without paying.
Discussion
Appellant contends the prosecutor committed misconduct
when she “encouraged the jury to consider punishment during
closing argument.” Considering the challenged statements in
context of the prosecutor’s entire argument, we discern no
misconduct. Even assuming the prosecutor’s statements
constituted misconduct, any misstatement was harmless.
During jury selection, the trial court told the prospective
jurors that appellant was charged with the crime of second
degree robbery, a felony, in violation of section 211. Prior to the
prosecutor’s closing argument, the trial court instructed the jury
on the crime of robbery, the “lesser included offense” of theft, and
the “lesser related offense of” simple battery. The jury was also
instructed with CALCRIM No. 3517, which repeatedly described
the charged offenses as “greater” and “lesser” crimes.
After instructions, the prosecutor began her closing
argument, as follows:
“So what counts are going to be before you? Well, the
judge has just mentioned them. But there are three: Robbery,
battery, and petty theft. ¶ So robbery is the felony. Felonies are
a more serious charge [than] the misdemeanors, the battery - - ”
4
Defense counsel objected that this was improper argument
and the trial court overruled the objection.
The prosecutor continued: “And the reason I bring this up
is because sometimes when juries are given multiple offenses and
some of them are felonies and some of them are misdemeanors, if
they think it’s hard to come to a verdict on the felony or they
think that the conduct in the case wasn’t a big deal, they’ll just
say oh, okay, let’s compromise. Let’s just convict him of the
misdemeanor. We don’t want to deal with the felony. Let’s just
vote not guilty on the felony. And I would ask that you please
refrain from doing something like that because the counts need to
be considered separately. They all have their own distinct
elements. ¶ Now, I’m going to dedicate my closing to talking
about the most severe crime, that is the robbery.”
Asserted Prosecutorial Misconduct
A claim of prosecutorial misconduct is governed by the
abuse of discretion standard of review. (People v. Peoples (2016)
62 Cal.4th 718, 792-793.)
The applicable federal and state standards regarding
prosecutorial misconduct are well established. “ ‘ “ ‘A
prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious
that it infects the trial with such unfairness as to make the
conviction a denial of due process.” ’ ” [Citations.] Conduct by a
prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it
involves “ ‘ “the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.” ’ ” [Citations.]’ ”
(People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v.
Samayoa (1997) 15 Cal.4th 795, 841.)
5
A prosecutor is given wide latitude during argument,
which may include reasonable inferences and deductions that can
be drawn from the evidence. (Hill, supra, 17 Cal.4th at p. 819;
People v. Friend (2009) 47 Cal.4th 1, 29.) “ ‘To prevail on a claim
of prosecutorial misconduct based on remarks to the jury, the
defendant must show a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we
“do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s
statements. [Citation.]’ ” (People v. Brown (2003) 31 Cal.4th 518,
553-554.)
Appellant contends the prosecutor’s comments were
“reprehensible” because, by emphasizing that robbery is a felony,
and battery and petty theft are misdemeanors, the prosecution
“focused the jury’s attention on punishment.”
We disagree. The prosecutor was merely restating what
the jury already knew—that is, that the robbery was charged as a
felony, which is the “greater crime,” while petty theft and battery
are “lesser crimes.” (See People v. Perez (2017) 18 Cal.App.5th
598, 625 [not misconduct for prosecutor’s reminder to the jury,
“consistent” with the given instruction, not error].) At no time
did the prosecutor mention the type of punishment the crimes
carried. The prosecutor’s remarks, taken in context, were simply
an admonition to the jury not to compromise their deliberations
by settling on a lesser offense because a determination on the
greater offense was difficult.
On this record, there was no reasonable likelihood the jury
would have applied the prosecutor’s remarks erroneously, i.e., to
impermissibly consider punishment in determining guilt.
6
Appellant’s contention that the trial court “endorsed that focus”
by overruling appellant’s improper-argument objection is not
persuasive.
Harmless Error
Even assuming the prosecutor’s remarks during closing
argument can be read as appellant suggests, the asserted
misconduct was not prejudicial under any standard. As the
United States Supreme Court observed, “[A]rguments of counsel
‘generally carry less weight with a jury than do instructions from
the court. The former are usually billed in advance to the jury as
matters of argument, not evidence, [citation], and are likely to
viewed as the statements of advocates; the latter, . . . are viewed
as definitive and binding statements of the law.’ ” (Boyde v.
California (1990) 494 U.S. 370, 384; see also People v. Mendoza
(2007) 42 Cal.4th 686, 703 [so noting].)
Here, the trial court instructed the jury that: “Nothing the
attorneys say is evidence.” (CALCRIM No. 104); “You must
follow the law as I explain it to you, even if you disagree with it.
If you believe the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.” (CALCRIM
No. 200); and, “You must reach your verdict without any
consideration of punishment.” (CALCRIM No. 3550). We
presume the jurors understood and followed the instructions.
(People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Further, the evidence of appellant’s guilt was
overwhelming. The incident was captured on video surveillance,
which was played for the jury. The jury heard witness testimony,
including from appellant, that he walked into the 7-Eleven and
took the beer without paying. A scuffle ensued shortly thereafter,
and when Jayakulasooriya attempted to grab the beer, appellant
7
punched him in the face. Appellant then got into the passenger
side of a car, and told the driver to “go, go, go.”
Appellant testified that he did not know who
Jayakulasooriya was when he grabbed appellant’s hand and
entered his personal space. That is irrelevant. The only mens
rea requirement for robbery is that “[w]hen the defendant used
force or fear, he intended to deprive the owner of the property
permanently.” (CALCRIM No. 1600.) Given this overwhelming
evidence, we conclude any misstatement by the prosecutor was
manifestly harmless.
For the first time in his reply brief, appellant raises
arguments related to (1) Proposition 36, “a prominent political
issue at the time of appellant’s trial,” which highlighted the
distinction between felonies and misdemeanors, and the
punishment for each,2 and (2) the jury’s deliberation time of one
hour and 40 minutes, which suggests the jury did not find
appellant’s guilt of robbery “so overwhelming.”
Appellant has forfeited both of these belatedly raised
arguments. “Withholding a point until the reply brief deprives
the respondent of an opportunity to answer it . . . [h]ence, a point
raised for the first time therein is deemed waived and will not be
considered, unless good reason is shown for failure to present it
before.” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) No
good cause is shown.
2 Appellant asks this court to take judicial notice of the
Voter Information Guide from November 5, 2024, regarding
Proposition 36. Because appellant’s argument relying on this
information is not properly before us, we decline to do so. The
request for judicial notice is denied.
8
In any event, appellant’s arguments are not persuasive.
Even if some jurors may have been aware of Proposition 36 and
the distinction between felonies and misdemeanors/punishment,
there is no reasonable probability that the jurors not only
misinterpreted the prosecutor’s remarks but then also ignored
the trial court’s clear instructions that they must not consider
punishment in reaching their verdict. Moreover, the speed with
which the jury returned its verdict suggests the strength of the
prosecution’s case. (See People v. Robertson (1982) 33 Cal.3d 21,
36.)
In sum, the record does not support appellant’s contention
that the prosecutor used deceptive or reprehensible practices or
that the challenged comments “infected the trial with such
unfairness” that his resulting conviction was a denial of due
process. As such, reversal is neither warranted nor appropriate.
Disposition
The judgement is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
CODY, P. J.
BALTODANO, J.
9
Maureen M. Houska, Judge
Superior Court County of Ventura
_____________________________
Law Offices of Jason Szydlik and Jason Szydlik, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, John Yang and Patricia Rosman, Deputy
Attorneys General, for Plaintiff and Respondent.