P. v. Hernandez
Filed 10/15/12 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
SETH HERNANDEZ,
Defendant and
Appellant.
2d Crim. No.
B228751
(Super. Ct. No.
1291722)
(Santa Barbara
County)
Seth Hernandez appeals the judgment following
his convictions for attempted murder
(Pen. Code, §§ 664/187, subd. (a)),
the personal use of a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor
exhibiting of a deadly weapon. The jury
found allegations to be true that Hernandez inflicted great bodily injury in
the attempted murder and one of the assaults (§ 12022.7, subd. (a)), and
personally used a deadly weapon (knife) in the attempted murder (§ 12022,
subd. (b)(1)). The jury found not to be
true an allegation that the attempted murder was willful, deliberate and
premeditated.
Hernandez contends
the trial court abused its discretion and violated his
of a subsequent uncharged offense under Evidence Code section 1101, subdivision
(b). We conclude there was no
prejudicial error and affirm.
FACTS
On November 8, 2008, Hernandez and friends Jesse
Robert, Jason Lastra, and John Dons went to a party at the home of Jordan
Goodie and Goodie's two brothers.
Hernandez was intoxicated, and he was also distraught because his mother
had recently been diagnosed with cancer.
He was also carrying a knife.
Hernandez got into an argument with Lastra and another man. Dons separated them and pulled Hernandez
away. Robert told Hernandez that he
should leave the party and the house.
Hernandez went outside for a period of time and then came back into the
house.
Later, Derek Mass and Hernandez got into an
argument and both men went outside. Several
other men followed and surrounded Hernandez.
Hernandez pulled out a knife and waived it around. Hernandez also tried to punch Mass but
missed. Mass punched Hernandez and
Hernandez chased after Mass holding his knife.
Another man also punched Hernandez.
Fighting spilled out onto the street.
Hernandez dropped his knife after being hit. Several partygoers wrestled with Hernandez
for a while before the fighting stopped.
Jordan Goodie, one of the hosts, asked Hernandez
to leave. Jesse Robert renewed his
request that Hernandez leave as well and telephoned Hernandez's brother to come
and pick him up. Hernandez would not
leave without retrieving his knife which had fallen to the ground. Goodie, Lastra and another partygoer went
outside to talk to Hernandez who was waiting for his brother to pick him up.
Jarvis Shelby arrived at the party to pick up a
friend. He talked to several partygoers
outside the house. Shelby and Hernandez
argued. Hernandez, who had found his
knife or was holding a second knife, lunged at Shelby and stabbed him in the
neck. Shelby pulled the knife out of his
neck and tried to defend himself.
Someone tackled Hernandez forcing him to the ground. Other partygoers punched and kicked
Hernandez. Shelby was taken to the hospital
where he received immediate surgery because his injuries were
life-threatening.
Hernandez testified on his own behalf that he was
drunk at the party, believed he was unwelcome, and stabbed Shelby because he
did not want to wait around to be beaten up.
He testified that he only nicked Shelby with his knife and did not
intend to seriously injure or kill him.
Hernandez testified that he was "trying to make a point."
DISCUSSION
Hernandez contends the trial court erred by
admitting evidence of a jailhouse fight which occurred approximately six months
after the offenses. The trial court
ruled that evidence of the jailhouse incident was admissible to show intent,
motive, and to negate a claim of self-defense.
(Evid. Code, § 1011, subd.
(b).) The court also ruled that the
probative value of the evidence was not substantially outweighed by the danger
of undue prejudice and would not confuse the issues. (Id.
at § 352.) We conclude that the
trial court erred by admitting the evidence but that the error was harmless.
The evidence at issue concerned an altercation
which occurred when Hernandez was in jail awaiting trial for the charged
offenses. A guard ordered Hernandez to
come out of his cell during an exchange of linens. Hernandez came out of his cell as directed
and was handcuffed. A deputy then told
Hernandez to move further down the jailhouse corridor. Hernandez objected to moving further away
from his cell, got angry, and lunged at the guard. The deputy assisted by other guards
physically forced Hernandez to the ground.
Hernandez continued to struggle and was tased.
Evidence that a
defendant has committed crimes other than the charged offense is not admissible
to show that the defendant is a person of bad character or has a
to prove a disputed material fact such as motive, intent, common plan or scheme, identity, and
absence of mistake or accident. (Evid. Code,
§ 1101, subds. (a) & (b); People
v. Thomas (2011) 52 Cal.4th 336, 354.) To be admissible, an uncharged act must be
sufficiently similar to the charged offense to support a rational inference
concerning a material fact other than criminal disposition. (People v. Ewoldt (1994) 7 Cal.4th
380, 402.) The strength of the inference
in any case depends upon the number and distinctiveness of shared
characteristics, and the tendency of the uncharged act to prove the disputed
facts. (People v. Thornton (1974)
11 Cal.3d 738, 756, disapproved on other grounds in People v. Flannel
(1979) 25 Cal.3d 668, 684-685, fn. 12.)
If evidence of an uncharged act is relevant, there is no distinction
between an act which occurs prior to commission of the charged offense
and an act that occurs subsequent to the charged offense. (People v.
Balcom (1994) 7 Cal.4th 414, 425.)
necessary to establish relevance varies depending upon the type of act the
evidence is offered to prove. (
uncharged crime must be highly similar to the charged offenses, while a lesser
degree of similarity is required to establish relevance to prove common design
or plan, and the least similarity is required to establish relevance to prove
intent. (Id. at pp. 402-403.)
As to intent, the
"'. . . recurrence of a similar result . . . tends (increasingly with each
instance) to negative accident or inadvertence or self-defense or good faith or
other innocent mental state, and tends to establish . . . the presence of the
normal, i.e., criminal, intent accompanying such an act . . . .'" (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged act and charged offense must be sufficiently similar to support the
inference that defendant probably harbored the same intent in each
instance. (Ibid.; see also
783.)
In addition, even if
relevant to prove a material fact other than a defendant's criminal disposition,
evidence of an uncharged act is subject to exclusion if its probative value is
substantially outweighed by the probability of undue prejudice. (Evid. Code, § 352; People v. Ewoldt,
supra, 7 Cal.4th at p. 404.) For
this purpose, "prejudice" refers to evidence that uniquely tends to
evoke an emotional bias against a party while having only slight probative
value with regard to the issues. (People
v. Heard (2003) 31 Cal.4th 946, 976.)
Evidence Code sections 1101 and 352 for abuse of discretion. (People v.
Lewis (2001) 25 Cal.4th
610, 637.)
We conclude that the
jailhouse incident was not sufficiently similar to the charged offenses to
support the inference that Hernandez had the requisite intent or motive to stab
Shelby, or to rebut his self-defense claim.
The offenses, circumstances, setting, and conduct involved in the
charged offenses and jailhouse incident have no clearly identifiable similarities. In cases allowing admission, the charged and
uncharged offenses involved similar offenses, such as theft-related offenses,
gang offenses, or sex offenses. (See,
e.g.,
1, 50; People v. Jones (2011) 51
Cal.4th 346, 371; People v. Foster (2010)
50 Cal.4th 1301, 1330-1331.)
Here, both the charged
offenses and the jailhouse incident involved violence but the nature and degree
of violence was markedly different. At
the party, Hernandez was armed, drunk, and in a rapidly changing social environment. He was among both friends and strangers and
involved in arguments and fights with several of the partygoers over a
significant amount of time before the stabbing.
The incident in jail occurred when Hernandez was handcuffed and was a
reaction to an order by a guard to move away from his cell. Even if both incidents involved some
rejection of authority, the levels of authority were very different and the
relevance of Hernandez's reaction to authority has little or no relevance to
the offense of murder.
The fact that Hernandez
acted with some level of violence in both the charged offense and the jailhouse
incident is insufficient to support an inference that he acted with intent to
kill in the stabbing of Shelby. Both
events show limited self-control, but that is a personality characteristic
which does not permit a reasonable inference of Hernandez's intent in the
stabbing of Shelby.
In any event, any error in
admitting the evidence was harmless and did not deny Hernandez a fair
trial. (See, e.g., People v. Marks (2003)
31 Cal.4th 197, 226–227.) Although the
numerous confrontations prior to the stabbing were described differently by
different witnesses, the evidence that Hernandez stabbed Shelby with the intent
to inflict great bodily injury was overwhelming. By Hernandez's own testimony, there can be no
dispute that Hernandez stabbed Shelby in the neck at a time when Hernandez was
in no great danger.
Additionally, the trial
court reasonably concluded evidence of the jailhouse incident was not unduly
prejudicial because it would not tend to evoke an emotional bias against
Hernandez. It was less inflammatory than
evidence of the charged offenses, and there was no reasonable possibility that
the jury would convict Hernandez of the charged offenses based on evidence of
the jailhouse incident. There
was no reasonable probability the verdict would have been more favorable
to defendant had the court excluded the evidence. (People
v. Jones, supra, 51 Cal.4th at p. 372.)
The
judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Jean
M. Dandora, Judge
Superior
Court County of Santa Barbara
______________________________
Lisa M. J. Spillman,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Tannaz Kouhpainezhad, Mark E. Webber, Deputy Attorneys
General, for Plaintiff and Respondent.
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All statutory
references are to the Penal Code unless otherwise stated.
