P. v. Hernandez























Filed 1/14/13 P. v.
Hernandez CA2/3













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. FERNANDO HERNANDEZ, Defendant and Appellant.

B233440 (Los Angeles County Super. Ct. No. TA109824)

APPEAL from a
judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, John T. Doyle, Judge. Affirmed as modified and remanded with
directions.

Deborah L. Hawkins,
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,
Assistant Attorney General, Susan Sullivan Pithey, Shawn McGahey Webb and
Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.



_________________________







Defendant and
appellant, Fernando Hernandez, appeals his conviction for murder, premeditated
attempted murder (2 counts), possession of a firearm by a felon,
dissuading a witness, and aggravated
assault, with firearm and gang enhancements (Pen. Code, §§ 187,
664/187, 12021 (former), 136.1, subd. (c)(1), 245, 12022.53, 186.22).href="#_ftn1" name="_ftnref1" title="">[1] Hernandez was sentenced to href="http://www.mcmillanlaw.com/">state prison for a term of 205 years to
life.

The judgment is affirmed as modified
and remanded with instructions.

>BACKGROUND

Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1.
The shooting.

Rosemary Avalos and Anthony Castillo
were members of the Dog Patch gang.
On March 17, 2008, Avalos and
Castillo went “cruising” together; Castillo was driving a borrowed Pontiac
Grand Prix with flash rims and Avalos was driving her mother’s Dodge van. Castillo noticed an older, dark blue Camry or
Nissan Sentra pass him going the opposite direction. He later told police he recognized the driver
as defendant Hernandez, a member of the rival Compton Varrio Tortilla Flats
gang. Castillo had known Hernandez from
around the neighborhood for about five years.
Castillo had “banged on him one time.”


Unaware the blue car had made a
U-turn and was now coming up behind him, Castillo pulled over on Elburg Street
to talk to his friend Paul in front of Paul’s house. Avalos drove up alongside Castillo and
said: “Hey, there are some guys
coming.” In his rear view mirror,
Castillo noticed the blue car had stopped in a driveway on Elburg, a few houses
down from the corner of Elburg and Downey Avenue. Then Castillo heard
gunshots. Avalos slumped in her seat,
and the van rolled forward and hit a parked car. Castillo went to her aid.

Dave Arellano lived on Elburg. He saw a white minivan and a dark, late model
car with fancy rims drive down the street.
A minute and a half later, an older, four-door Camry pulled into
Arellano’s driveway, backed up slightly and then stopped. There were at least two people in the front
and three people in the back. Someone rolled
down the front passenger window and Arellano saw a hand with a gun in it. The gun, a revolver, fired three or four
times. Castillo said “the person pulling
the trigger took his time,” and the Camry stayed still with its engine running
during the shooting.

Paul’s father told police he heard
two gunshots and someone yell “Tortilla Flats.” At trial he acknowledged having said this to
the police, but also testified that had been a mistake and, actually, he did
not hear anybody yell anything.

Avalos survived the shooting, but a
bullet had lodged in her spine and rendered her a quadriplegic. Thereafter, she required a ventilator to
breathe. After her hospitalization,
Avalos was cared for by her family at home, where she died in January 2009
when her ventilator tube became dislodged as she was sleeping.

2.
Hernandez’s arrest.

A week after the shooting, Hernandez
was spotted by police officers on the street.
He jumped a fence and fled, but they caught him. Officer Kasey Woodruff retrieved a .357-caliber
Ruger revolver Hernandez had tossed away during the chase.

On February 10, 2009, Woodruff arrested Steven Guzman in an unrelated matter. Guzman said he had information about the
Avalos/Castillo shooting. Woodruff took
a statement and contacted the detectives who were investigating the case. In October 2009, while Guzman was being
held in a jail cell pending his testimony at Hernandez’s trial, Hernandez and
several others assaulted Guzman.

3.
Forensic evidence.

At the shooting scene, officers
found Avalos’s van about 15 to 20 feet away from the Pontiac Grand Prix. The back window of the van had been shattered
by a bullet. This bullet had passed
through the rear seat headrest and then the driver’s seat headrest before
hitting Avalos. A police diagram of the
crime scene estimated that the distance between the Camry and the van when the
bullet hit the van’s rear window was approximately 250 feet.

The van was towed from the scene on
a flatbed truck, which had to position the van at a steep angle during the
towing. Criminalist Tracy Peck
subsequently examined the van at the tow yard and found a bullet jacket on the
driver’s side floorboard. Peck concluded
this bullet jacket had been fired from the gun Hernandez tossed away when the
officers were chasing him.

After the shooting, there was a new
half-inch hole in the left rear bumper of the Pontiac Grand Prix that Castillo
had been driving.

4.
The jailhouse phone conversations.

During a March 26, 2009, recorded jailhouse phone conversation between Hernandez and his
girlfriend, Evelyn Lopez, she cautioned him about “sticking to a story.” Their conversation included the following
colloquy:

“[Lopez]: . . . [W]hy did you tell your
attorney that you were at your aunt’s house smoking dope when I had told you
what happened the day [sic]?

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

“[Hernandez]: I was, I was right there at Marcie’s house
. . . smoking dope.

“[Lopez]: See, you’re, you’re not keeping to a, you’re
not sticking to a story, Fernando. Your
mom knows the story, I know the story, and you know the story. So you don’t have to . . . .

“[Hernandez]: Huh?

“[Lopez]: You’re getting yourself into, you’re
. . . fucking digging yourself into a hole.”

Lopez also advised Hernandez that
someone named Cartoon needed to talk to him.
Cartoon was a Tortilla Flats gang member.

During
a subsequent phone conversation with Lopez on May 7, 2009, Hernandez said he needed to talk to his homie Clavo and Lopez told
him: “My uncle already talked to Clavo
about Steven. My uncle . . .
he’s a main dude Fernando.” Clavo was a
Tortilla Flats shot caller.

Hernandez also told Lopez to “break”
his cell phone “and throw it in the trash” because it had pictures of “tagging
on it.” Hernandez belonged to a graffiti
tagging crew before joining the Tortilla Flats gang.

5.
Gang evidence.

Deputy Sheriff Daniel Morris
testified as a gang expert. The Tortilla
Flats gang had about 500 members and their primary activities included murder,
robbery, carjacking, drug trafficking, possession of firearms, and vandalism. Hernandez belonged to this gang. In 2007, Hernandez had been the victim of a
shooting while in the company of Steven Guzman, another Tortilla Flats gang
member. Hernandez and Guzman both lived
in Paramount, territory which was claimed by the rival Dog Patch gang. As such, they could expect to be challenged
by any Dog Patch members they encountered.
Asked what risks that would entail, Morris testified: “Well, unless you have some type of rapport
with the shot caller in that gang, you’re living in rival territory. You’re going to get banged on, and you’re
. . . living in jeopardy essentially.
It’s dangerous.”

Morris opined the Avalos/Castillo
shooting had been carried out for the benefit of Tortilla Flats for a number of
reasons. The Tortilla Flats members were
driving in Dog Patch territory with a gun in their car, and both Castillo and
Avalos belonged to the rival Dog Patch gang.
Someone yelled “Tortilla Flats” during the incident. Castillo recognized Hernandez as “being a
Tortilla Flats gang member that he had banged on in the past, clearly a sign of
disrespect banging on this other individual.”
Gang members would disapprove of any fellow gang member who failed to
defend the gang’s honor after having been disrespected in this way: “[Y]ou’d be considered ranking out. You’re not standing up for your gang. You’re not showing that you are willing to
. . . put in work or defend your territory or defend the name of your
gang. If you do not do something in
retribution for somebody disrespecting your gang, you’re going to be looked
down upon by members of your gang.”

Morris opined the jail beating of
Guzman had been for the benefit of the Tortilla Flats gang because Guzman was
being punished for snitching. Responding
to a hypothetical question which assumed only that Guzman had given unspecified
information to the police about the Avalos/Castillo shooting, Morris testified
Guzman would have been viewed as a snitch merely for meeting with the police in
this situation.

6.
The defense.

Hernandez did not present any
evidence at trial.

>CONTENTIONS

1.
There was insufficient evidence to sustain Hernandez’s conviction for
the attempted murder of Castillo.

2.
The trial court erred by denying a new trial motion based on ineffective
assistance of counsel.

3.
The trial court erred by denying a new trial motion based on
prosecutorial misconduct.

4.
The vicarious firearm use enhancement based on gang participation is
unconstitutional.

5.
Hernandez is entitled to an additional day of presentence custody
credit.

6.
Hernandez was improperly convicted of both a greater and a lesser
included offense. [Issue raised by the
Attorney General.]

7.
A sentencing error must be corrected.
[Issue raised by the Attorney General.]

>DISCUSSION

1.
There was sufficient evidence
Hernandez attempted to murder Castillo.

Hernandez contends there was href="http://www.fearnotlaw.com/">insufficient evidence to sustain his
conviction for the attempted murder of Castillo. This claim is meritless.

a. Legal
principles.

“In assessing a
claim of insufficiency of evidence, the reviewing court’s task is to review the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, evidence that is reasonable,
credible, and of solid value – such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citation.] The federal standard
of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails
not the determination whether the reviewing court itself believes the evidence
at trial establishes guilt beyond a reasonable doubt, but, instead, whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
[Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on
circumstantial evidence.
[Citation.] ‘ “Although it
is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and
the other innocence [citations], it is the jury, not the appellate court[,]
which must be convinced of the defendant’s guilt beyond a reasonable
doubt. ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ [Citation.]” (People
v. Rodriguez (1999) 20 Cal.4th 1, 11.)

> “ ‘An
appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial
evidence.’ [Citation.] ‘Before the judgment of the trial court can
be set aside for the insufficiency of the evidence, it must clearly appear that
on no hypothesis whatever is there sufficient substantial evidence to support
the verdict of the [finder of fact].’
[Citation.]” (>People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant’s burden to
affirmatively demonstrate error.
[Citation.] Thus, when a criminal
defendant claims on appeal that his conviction was based on insufficient
evidence of one or more of the elements of the crime of which he was convicted,
we must begin with the presumption
that the evidence of those elements was
sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the
defendant to simply contend, ‘without a statement or analysis of the evidence,
. . . that the evidence is insufficient to support the
judgment[] of conviction.’
[Citation.] Rather, he must >affirmatively demonstrate that the evidence is insufficient.” (Ibid.)

An attempt to commit a crime consists of (1) the
specific intent to commit the target crime, and (2) a direct but ineffectual
act done towards its commission. (>People v. Swain (1996) 12
Cal.4th 593, 604.) Specific intent
must often be inferred from circumstantial evidence. (People
v. Cole (1985) 165 Cal.App.3d 41, 48.)

People
v. Anderson (1968) 70 Cal.2d 15, a murder case, discussed the following
types of premeditation and deliberation evidencehref="#_ftn2" name="_ftnref2" title="">>>[2]: “The type of evidence which this court has found
sufficient to sustain a finding of premeditation and deliberation falls into
three basic categories: (1) facts
about how and what defendant did prior
to the actual killing which show that the defendant was engaged in activity
directed toward, and explicable as intended to result in, the killing – what
may be characterized as ‘planning’
activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the
jury could reasonably infer a ‘motive’ to kill the victim, which inference of
motive, together with facts of type (1) or (3), would in turn support
an inference that the killing was the result of ‘a pre-existing reflection’ and
‘careful thought and weighing of considerations’ rather than ‘mere unconsidered
or rash impulse hastily executed’ [citation]; (3) facts about the nature
of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant
must have intentionally killed according to a ‘preconceived design’ to take his
victim’s life in a particular way for a ‘reason’ which the jury can
reasonably infer from facts of type (1) or (2). [¶]
Analysis of the cases will show that this court sustains verdicts
of first degree murder typically when there is evidence of all three
types and otherwise requires at least extremely strong evidence
of (1) or evidence of (2) in conjunction with
either (1) or (3).” (>Id. at pp. 26-27.)

b. Discussion.

The evidence that Hernandez was
guilty of the attempted murder of Castillo was more than sufficient as all
three Anderson
factors were present. The motive
evidence was strong because, not only were the victims from a rival gang, but
Castillo had “banged on” Hernandez during a prior encounter and Hernandez was
honor-bound to avenge this insult. The
“planning activity” included driving into enemy gang territory with a loaded
weapon and then making a U-turn upon spotting the victims. The “manner of killing” was a typical
drive-by shooting: Hernandez positioned
the Camry in Arellano’s driveway and kept the car still so the gunman would
have a good shot at the two rival gang members who were a fair distance down
the street; evidence showed the gunman took very deliberate aim before
firing. The shooting did not arise out
of any immediately-prior confrontation; rather, the attackers snuck up on the
victims and essentially ambushed them.
The shooting was not a “ ‘mere unconsidered or rash impulse hastily
executed.’ ” (People v. Anderson, supra, 70 Cal.2d at p. 27.)

Pointing to the fact Castillo told
police he did not think the gunman had been trying to kill him, Hernandez
argues: “The physical evidence supported
his statement. Officers . . .
found the . . . Grand Prix within fifteen to twenty feet of the
Avalos van, west of the van, ahead of it, closer to Anderson.href="#_ftn3" name="_ftnref3" title="">[3] The only damage to the [Grand Prix] was a
small hole in . . . the bumper . . . [whereas the]
back window of the Avalos van had been blown out.” Hernandez asserts this evidence shows “[t]he
intended victim was Avalos, not Castillo.”


We are not persuaded by this theory
the intended victim was Avalos and that Castillo just happened to be in the
way. Indeed, the evidence tended to show
the opposite scenario was far more likely.
Castillo was driving a loud car with flashy rims, which was more likely
to have attracted the perpetrators’ attention in the first place than the van
Avalos was driving. Hernandez, in
particular, had a special reason for wanting to kill Castillo. The fact the gunman managed to “blow out” the
van’s rear window, but only nick the bumper of the Grand Prix, does not
necessarily infer anything different.
(See People v. Smith
(2005) 37 Cal.4th 733, 741 [that victim may have escaped death due to
gunman’s poor aim does not establish less culpable state of mind].) The fact Castillo
himself may not have believed the gunman was trying to kill him did not trump
other inculpatory evidence (see, e.g., People
v. Renteria (1964) 61 Cal.2d 497, 499 [store clerk’s testimony he did not
give robber money out of fear was not binding on prosecution because other
evidence showed this was untrue]), particularly given the overall incredible
nature of Castillo’s testimony (see post).

A police diagram indicated the Camry
in Arellano’s driveway had been approximately 250 feet away from the van
when the shooting occurred. This
distance renders the 10 to 15 foot gap between the van and the Grand Prix
negligible, even ignoring the fact the victims’ vehicles apparently moved some
distance after being hit by the gunfire.
In addition, the jurors had been instructed on implied malice murder based
on the natural and probable consequences doctrine, and it would have been quite
rational for them to have concluded the attackers intended to shoot Castillo
and only hit Avalos because of her proximity to him.

There was sufficient evidence to
prove Hernandez was guilty of the attempted murder of Castillo.

2. There
was no ineffective assistance of counsel.

Hernandez
contends the trial court erred by denying his new trial motion based on a claim
of ineffective assistance of counsel for not adequately cross-examining the
prosecution’s ballistics expert. This
claim is meritless.

a. Legal
principles.

“In People v. Fosselman (1983) 33 Cal.3d 572 . . . , the
Supreme Court established for the first time that ‘in appropriate
circumstances’ the issue of trial counsel’s effectiveness should be presented
to the trial court on a motion for new trial, even though the new trial
statute (Pen. Code, § 1181) does
not include this as one of the enumerated grounds for the motion. [Citation.]
[¶] It has been stated often that
a motion for new trial is addressed to the sound discretion of the trial court
and that its decision will not be reversed unless a clear abuse of discretion
is shown. [Citations.] While this rule undoubtedly is correct in the
context of a statutory motion for new trial, the proper scope of review of the
trial court’s ruling on a nonstatutory motion based upon an allegation of
denial of constitutional rights is not so simple. We find the analogy to the procedures on
motions to suppress evidence pursuant to Penal Code section 1538.5 compelling,
and we hold that a similar two-step process is appropriate in these cases. [¶] In
the first step, the trial court must find the relevant facts . . .
. On appeal, all presumptions favor the
trial court’s exercise of its power to judge the credibility of witnesses,
resolve any conflicts in testimony, weigh the evidence, and draw factual
inferences. The trial court’s factual
findings, express or implied, will be upheld if they are supported by substantial
evidence. [Citation.]” (>People v. Taylor (1984) 162 Cal.App.3d
720, 724.)

“In the second step of the process,
the trial court will have decided whether, on the facts which it has found, the
defendant was deprived of his right to adequate assistance of counsel, that is,
whether the defendant has shown that . . . ‘his counsel failed to
perform with reasonable competence and that it is reasonably probable a
determination more favorable to the defendant would have resulted in the
absence of counsel’s failings.
[Citations.]’ [Citation.] . . . [¶] To
the extent that these are questions of law, the appellate court is not bound by
the substantial evidence rule, but has ‘ “the ultimate responsibility
. . . to measure the facts, as found by the trier, against the
constitutional standard . . . .”
[Citation.] On that issue, in
short, the appellate court exercises its independent judgment.’ [Citations.]”
(People v. Taylor, supra, 162
Cal.App.3d at pp. 724-725; accord People
v. Albarran (2007) 149 Cal.App.4th 214, 224-225, fn. 7
[it is proper to review denial of new trial motion de novo when
claims of constitutional magnitude are raised].)

A claim of ineffective assistance of
counsel has two components:
“ ‘First, the defendant must show that counsel’s performance was
deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.]
[¶] To establish ineffectiveness,
a ‘defendant must show that counsel’s representation fell below an objective
standard of reasonableness.’
[Citation.] To establish
prejudice he ‘must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citation.]”
(Williams v. Taylor (2000)
529 U.S. 362, 390-391 [146 L.Ed.2d 389].)

In
evaluating a claim that defense counsel should have presented particular
evidence, “[j]udicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for
a defendant to second guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.
[Citation.] A fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial
strategy.’ [Citation.] There are countless ways to provide effective
assistance in any given case. Even the
best criminal defense attorneys would not defend a particular client in the
same way.” (Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d
674].)

b. Background.

Hernandez’s new trial motion claimed
defense counsel had been ineffective in cross-examining Tracy Peck, the
prosecution’s ballistics expert. To
resolve this claim, the trial court held an evidentiary
hearing at which Hernandez presented expert testimony from criminal defense
attorney Nancy Sperber.

Sperber opined defense counsel’s
performance had been deficient because he did not adequately challenge Peck’s
conclusion the bullet jacket found in the van matched Hernandez’s gun. Sperber’s primary criticism was that defense
counsel failed to question Peck about a 2008 report from the National Research
Council (NRC), an arm of the National Academy of Sciences, challenging the
accuracy of ballistics identification procedures. Sperber testified defense counsel should have
utilized this report and asked other technical ballistics questions.

The trial court denied Hernandez’s
ineffective assistance of counsel claim, saying: “The defendant identifies no exculpatory or
impeachment evidence that counsel could have revealed by further questioning of
prosecution witnesses or examination of defense experts that would have
produced a more favorable result at trial.
Such claims must be supported by declarations or other proffered testimony
establishing both the substance of the admitted evidence and its likelihood for
exonerating the accused. [¶] You did proffer something. You put on Ms. Sperber. But . . . these matters are
normally left to counsel’s discretion and rarely implicate inadequacy of
representation. Now, >I thought . . . >for a moment that Ms. Sperber was going
to testify that ballistics evidence was just unreliable as such. And she didn’t say that. Basically what she said is – and I’ll put
it in common parlance. >If I cross examined him, I could have done a
better job. I would have asked him
this. I would have asked him that. I would have gone into other things. That’s basically what she said in reference
to this report. I’m looking at
. . . the other things that counsel did. He specifically objected . . . to
the chain of custody. He . . .
cross examined Ms. Peck and also I believe the tow yard owners on the
issue of the chain of custody and the bullet not being found immediately at the
scene but found at the tow yard and whether or not the path of travel through
two headrests and the bullet not being found immediately on the scene
. . . might have undermined the reliability of Ms. Peck’s
testimony on there being a match.”

c. Discussion.

Hernandez now argues that if defense
counsel “had used the NRC report material, he could have elicited an admission
that firearm identification is not an exact science, and its efficacy has been
questioned. The ‘impeachment evidence’
Ms. Sperber identified was showing the jury that a ballistics expert could
not opine with certainty that a particular gun fired a particular bullet.” Hernandez asserts trial counsel’s inadequate
cross-examination “was prejudicial because the gun evidence was crucial to the
prosecution’s case. Anthony Castillo was
equivocal. He recanted his
identification of appellant at trial.”
We are unpersuaded.

As the Attorney General argues: “Sperber’s testimony established nothing more
than a difference of opinion in trial strategy.
[¶] . . . Unlike Ms. Sperber’s strategy choice, which was
to challenge the science of tool marking, trial counsel chose to challenge the
chain of custody of the test bullet jacket by putting forth the theory that
anyone could have put the bullet jacket in Avalos’s minivan because it was
recovered three days after the shooting while it sat unlocked in a tow yard
evidence bay. [¶] Counsel also chose to challenge the
reliability of Criminalist Peck’s finding by cross-examining her on the multitude
of guns from which the bullet jacket could have been fired, and the existence
of scratches and markings on the bullet jacket from impact with glass, metal,
wood, and steel.” The Attorney General
is echoing a point made in Strickland: “Even the best criminal defense attorneys
would not defend a particular client in the same way.” (Strickland
v. Washington, supra, 466 U.S. at p. 689.)


Moreover, as the trial court pointed
out, Sperber did not purport to believe the NRC report entirely undermined the
field of fired-bullet comparisons.
Rather, citing U.S. v. Taylor
(D.N.M. 2009) 663 F.Supp.2d 1170, Hernandez merely asserts the NRC report “has
been expressly recognized by at least one federal court to mean that forensic
science, in its present state of development does not allow an expert to state
with absolute certainty that a particular gun fired a particular bullet,” and
therefore some courts have held “ballistics experts must be limited so that
they do not state a match to an absolute certainty.” But in this case the ballistics evidence was
neither the only, nor even the strongest, evidence placing Hernandez at the
crime scene. Hence, defense counsel was
not ineffective for challenging the expert’s opinion on other grounds,
particularly because Peck’s conclusion, even if downgraded to “less than
absolutely certain,” would still have been very incriminating when considered
in conjunction with the other inculpatory evidence.

Finally, even if defense counsel had
been deficient, which we doubt, there was no resulting prejudice because,
entirely apart from the ballistics evidence, there was overwhelming proof of
Hernandez’s involvement in the drive-by shooting. Castillo was acquainted with Hernandez and
identified him as the driver. There was
an extremely strong gang motive arising out of the past personal relationship
between Hernandez and Castillo.
Hernandez’s incriminating jailhouse phone conversations and the beating
of Steven Guzman in jail constituted strong circumstantial evidence supporting
Hernandez’s guilt.

As for Hernandez’s assertion
Castillo recanted his eyewitness identification at trial, we conclude that, as
the following examples amply show, Castillo’s testimony lacked all
credibility. Castillo testified he did
not know how to make a Dog Patch hand sign, did not know what the term “snitch”
meant, and did not know what it meant to “gang bang on somebody” Asked, “[I]s it a good thing to be
cooperative with police or a bad thing as far as you know in [the] Dog Patch
gang?”, Castillo testified: “I wouldn’t
know.” He claimed he did not remember
the day Rosemary Avalos had been shot, or that he had been in a Pontiac Grand
Prix right next to her at the time.
Asked, “Is there any reason why you don’t recall Rosemary Avalos getting
shot in the back of the neck?”, Castillo testified: “Maybe it happened too quick for me to
remember.” He denied having talked to
the investigating detectives and, after hearing a recording of his police
interview, denied it was his voice. In
sum, Castillo’s trial testimony was so incredible no reasonable jury would have
believed his alleged recantation.

The trial court did not err by
denying Hernandez’s new trial motion based on his claim of ineffective
assistance of counsel.

3.
There was no prosecutorial
misconduct.

Hernandez contends the trial court
erroneously denied his new trial motion based on prosecutorial misconduct
during closing argument. These claims are meritless.

a. Legal
principles.

“Under California law, a
prosecutor commits reversible misconduct if he or she makes use of ‘deceptive
or reprehensible methods’ when attempting to persuade either the trial court or
the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not
result in the denial of the defendant’s specific constitutional rights – such
as a comment upon the defendant’s invocation of the right to remain silent –
but is otherwise worthy of condemnation, is not a constitutional violation
unless the challenged action ‘ “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” ’ [Citations.]”
(People v. Riggs (2008) 44
Cal.4th 248, 298.)

“ ‘ “[T]he
prosecution has broad discretion to state its views as to what the evidence
shows and what inferences may be drawn therefrom.” ’ [Citation.]”
(People v. Welch (1999) 20
Cal.4th 701, 752.) “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.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on
another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.)
“[C]onduct 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.” ’ ” (People
v. Espinoza (1992) 3 Cal.4th 806, 820.)

b.
Discussion.

(1) The
“burden of proof” issue.

> (a) Background.

Hernandez contends
the prosecutor committed misconduct by arguing to the jury that Hernandez was
“obligated to put on a defense.” We
disagree.

During closing argument, the prosecutor suggested the
cross-examination of Deputy Woodruff, the officer who recovered the gun, had
gone “down the path of police conspiracy” by implying Woodruff “found” the gun
in order to frame Hernandez. The
prosecutor asked, “Why would counsel ask Deputy
Woodruff if he was involved in the March 17th, 2008
shooting? Were you working that
day? Did you respond to the scene? Because he’s the one that found the murder
weapon.”href="#_ftn4" name="_ftnref4" title="">^>[4]

The prosecutor continued:

“And I’m bringing this up to you because I don’t hide
from arguments of police conspiracy . . . . [i]f I see it
happening in court and I see the defense trying to back door that
argument. And I’m addressing it right
now so he can respond to it. If it’s
truly a case of police conspiracy, find that man not
guilty. . . . If you find
. . . that the [bullet] jacket was planted, that the gun was planted,
that the evidence of ballistics was made up, find him not guilty. But if at the end of the day this gun, the
defense could have requested that the weapon be tested, the defense expert to
confirm –

“[Defense
counsel]: Objection. Misstates the defense burden and also
vouching for the evidence, Your Honor.

“The Court: That’s overruled. Go ahead.

“[The
prosecutor]: Let there be no mistake. I have
the burden of proof. But if you’re
going to . . . back door the argument of police conspiracy or back
door the argument that this is not the gun, then have your analyst test the
gun. Then have your analyst look at the
jacket. Have your analyst come into
court and say this is not a match. That
didn’t happen. Why? Because talk is cheap. . . . [¶] . . . [¶]
There’s a book out there that’s called ‘The Defense Never Rests.’. . .
And you know why? >Because the defense has an obligation to put
on a defense. If you have a video of
the crime, they’re going to contest that.
If you have a taped confession with a video, you’re going to contest
that. If you have a hundred witnesses
saying that’s the person, you’re going to contest that.”

(b) Discussion.

“Griffin [>v. >California (1965) 380 U.S. 609 (14 L.Ed.2d 106)], forbids argument that focuses the jury’s
attention directly on an accused’s failure to testify and urges the jury to
view that failure as evidence of guilt.”
(People v. Avena (1996) 13
Cal.4th 394, 443.) “A prosecutor
may not directly or indirectly comment on a defendant’s failure to testify in
his or her own defense. [Citation.] But the prosecutor may comment on the state
of the evidence, including the failure of the defense to introduce material
evidence or to call witnesses.” (>People v. Mincey (1992) 2 Cal.4th 408,
446.) “A prosecutor is permitted
. . . to comment on a defendant’s failure to introduce material
evidence or call logical witnesses.
[Citation.] By directing the
jury’s attention to the fact defendant never presented evidence that he was
somewhere else when the crime was committed, the prosecutor did no more than
emphasize defendant’s failure to present material evidence. He did not capitalize on the fact defendant
failed to testify.” (>People v. Brown (2003) 31 Cal.4th
518, 554.)

The prosecutor’s argument that the defense could have had the gun
tested by their own expert was a proper comment on a failure to produce logical
evidence, and Hernandez’s objection to this argument was properly overruled by
the trial court. Hernandez did not
object to the prosecutor’s subsequent remark that “the defense has an obligation
to put on a defense,” and a defendant who fails to object at trial “waive[s]
any error or misconduct emanating from the prosecutor’s argument that could
have been cured by a timely admonition.”
(People v. Wrest (1992) 3
Cal.4th 1088, 1105.) Particularly
given the prosecutor’s previous statement – “Let there be no mistake. I have the burden of proof” – a timely
objection could have allowed the prosecutor to explain he had merely become
entangled in his The >Defense Never Rests metaphor, and that
he did not intend to contradict his acknowledgment of the correct burden of
proof.

(2) The
Guzman issue.

A pretrial hearing was held on the question of what evidence could
be admitted to prove the charge of dissuading a witness (§136.1,
subd. (c)(1)) which arose out of Steven Guzman’s beating in jail. The prosecutor told the trial court Guzman
had given the following story to the police.
Guzman was a friend of Hernandez’s and a fellow Tortilla Flats gang
member. On the day of the
Avalos/Castillo shooting, Guzman said “he was hanging out with some shot
callers from Tortilla Flats when [Hernandez] returned with three or four
others. When they returned, they’re
bragging about the shooting and that [Hernandez] went to the shot caller and
said ‘Here’s your gun. The mission is
done.’ The shot caller told [Hernandez],
‘No, you’ve earned it. Keep it.’ Meaning the weapon. [¶]
And other statements to the effect that there were people bragging about
the shooting and how brave [Hernandez] was and so forth.”

According to Hernandez’s opening brief, his “first trial ended in a
hung jury on September 17,
2009.
Steven Guzman was not called as a witness at either the preliminary
hearing or appellant’s first trial. He
was subpoenaed for the second trial but failed to appear, was arrested, and
wound up in lock-up on October 14, 2009
. . . . On that date, he
was assaulted by appellant and others in the holding cell. Mr. Guzman was not available in the
instant trial because he was murdered on December 1, 2009.”

The jury heard nothing about either Guzman’s murder or what
information he gave the police about the Avalos/Castillo shooting. The jury knew only that Guzman had spoken to
the police about the shooting.

During closing argument, defense counsel countered the witness
intimidation charge by pointing out there was no evidence of what Guzman said
to the police. Defense counsel suggested
Hernandez had probably assaulted Guzman for some reason unrelated to the
Avalos/Castillo shooting, and hinted that if Guzman had had anything
incriminating to say the prosecution would have called him as a witness: “Steven Guzman has never testified in this
matter. He’s unavailable now. Fine.
But what about in May of last year?
We were all here. Same parties
here. Where was he? We know he was in jail. So he could have easily been brought over
. . . . There was a trial
in September of ‘09. Where was Steven Guzman? He wasn’t here. We know that he was around. Well, we know he was in jail what? In October?
He was in the area last year.
Have we heard one thing he had to say regarding anything here?”

The prosecutor responded by telling the jury:

“[The prosecutor]: Steven
Guzman did not testify at the preliminary hearing. Steven Guzman didn’t testify in
September. Steven Guzman is not here to
testify. The defense didn’t call him to
testify at the preliminary hearing. He
was available. The defense.

“[Defense counsel]:
Objection, Your Honor, misstates defense burden here. It’s not our job to prove anything here. [¶] . . . [¶]
The defense does not have a burden to call any witnesses or put on any
evidence, Your Honor, and we rested on the state of the evidence.

“The Court: I’ll allow
that. You brought that issue up. [¶] Go
ahead.

“[The prosecutor]: The
defense didn’t call him. And I’m telling
you once again don’t speculate as to why Steven Guzman wasn’t called here. If you want to find out about why, we’ll talk
after the trial. Okay. If you want to find out what he said to
detectives, we’ll talk after the trial.”


This did not constitute prosecutorial misconduct. The prosecutor was fairly responding to
defense counsel’s suggestion the People never called Guzman because they knew
he would not have incriminated Hernandez.
The evidence, including the gang expert’s testimony, shows the mere fact
Guzman spoke to the police, even if what he told them was unknown, would have
been considered a breach of gang ethics.
Hernandez complains “the prosecutor knew that Steven Guzman was dead and
could not be called by either side.” But
the record demonstrates both sides were steering clear of Guzman’s present
unavailability and talking only about the fact he could have been called as a
witness at some earlier point in time.

This did not constitute prosecutorial
misconduct.

4. Gang-related vicarious firearm use enhancement did not violate equal
protection.

Hernandez contends the 25-year-to-life terms imposed pursuant to
section 12022.53, subdivision (e)(1), must be reversed because
imposition of a gang-related vicarious firearm use enhancement violated his
right to equal protection. This claim is
meritless.

a. Legal
principles.

“It is a fundamental principle that, ‘[t]o succeed on [a] claim
under the equal protection clause, [a defendant] first must show that the state
has adopted a classification that affects two or more similarly situated groups
in an unequal manner.’ [Citations.] ‘In considering whether state legislation
violates the Equal Protection Clause of the Fourteenth Amendment
. . . we apply different levels of scrutiny to different types of
classifications. At a minimum, a
statutory classification must be rationally related to a legitimate
governmental purpose. [Citations.] Classifications based on race or national
origin . . . and classifications affecting fundamental rights
. . . are given the most exacting scrutiny. Between these extremes of rational basis
review and strict scrutiny lies a level of intermediate scrutiny, which
generally has been applied to discriminatory classifications based on sex or
illegitimacy. [Citations.]’ [Citations.]”
(People v. Wilkinson (2004) 33
Cal.4th 821, 836-837.)

“ ‘The first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.’
[Citations.]” (>People v. Hofsheier (2006)
37 Cal.4th 1185, 1199.) “Under the
equal protection clause, we do not inquire ‘whether persons are similarly
situated for all purposes, but “whether they are similarly situated for
purposes of the law challenged.” ’
[Citations.]”
(Id. at pp. 1199-1200.) “If persons are not similarly situated
for purposes of the law, an equal protection claim fails at the
threshold.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)

b. Discussion.

Hernandez contends subdivision (e)(1) of section 12022.53
violates equal protection by imposing vicarious firearm enhancements on gang
aiders and abettors, but not on aiders and abettors who are not gang
members. This claim is meritless.

Subdivision (e)(1) of
section 12022.53 provides: “The
enhancements provided in this section shall apply to any person who is a
principal in the commission of an offense if both of the following are pled and
proved: [¶] (A) The person violated subdivision (b)
of Section 186.22 [the gang enhancement statute]. [¶]
(B) Any principal in the offense committed any act specified in
subdivision (b), (c), or (d).”

This statute imposes a vicarious
firearm enhancement on an aider and abettor if a criminal street gang
allegation has been pled and proved. “Section
12022.53, subdivisions (d) and (e)(1)(B) when read together require the trial
court to impose a consecutive 25-years-to-life sentence enhancement when a
defendant is convicted of murder for the benefit of a criminal street gang and
‘[a]ny principal in the offense’
‘personally and intentionally discharges a firearm and . . . causes
. . . death, to any person other than an accomplice.’ (Italics added.) Under this sentencing regime an aider and
abettor who is found guilty of murder is subject to the 25 years to life enhancement
even though he or she did not personally and intentionally discharge a firearm
causing death if the murder was committed for the benefit of a criminal street
gang and ‘any principal’ in the offense personally and intentionally discharged
a firearm causing death. In all other
killings subject to section 12022.53, subdivision (d) – that is, killings
not for the benefit of a criminal street gang – a principal, including an aider
and abettor, is only subject to the 25-year enhancement if he or she personally
and intentionally discharged a firearm causing death.” (People
v. Hernandez (2005) 134 Cal.App.4th 474, 480, fns. omitted.)

The same legal argument Hernandez
makes has been rejected elsewhere.
(See People v. Gonzales (2001)
87 Cal.App.4th 1, 13 [defendant not “similarly situated” because “[u]nlike
other aiders and abettors who have encouraged the commission of a target
offense resulting in a murder, defendants committed their crime with the
purpose of promoting and furthering their street gang in its criminal
conduct”]; see also People v. Hernandez,
supra, 134 Cal.App.4th at pp. 481-482 [even if criminal street gangs are
similar to drug cartels or terrorist organizations, Legislature is not required
to outlaw all possibly comparable crimes].)
We agree with the reasoning of these cases.

Citing People v. Olivas (1976) 17 Cal.3d 236, Hernandez argues these cases
were wrongly decided. But Hernandez has
ignored our Supreme Court’s subsequent opinion in People v. Wilkinson, supra, 33 Cal.4th at pp. 837-838, which
said: “The language in >Olivas could be interpreted to require
application of the strict scrutiny standard whenever one challenges upon equal
protection grounds a penal statute or statutes that authorize different
sentences for comparable crimes, because such statutes always implicate the
right to ‘personal liberty’ of the affected individuals. Nevertheless, Olivas properly has not been read so broadly. . . . [A] broad reading of Olivas, as advocated by defendant here, would ‘intrude[] too heavily
on the police power and the Legislature’s prerogative to set criminal justice
policy.’ ” (See also >People v. Ward (2008) 167 Cal.App.4th
252, 258 [“the California Supreme Court has subsequently rejected the argument
that the Olivas decision means that
strict scrutiny is applied ‘whenever one challenges upon equal protection
grounds a penal statute or statutes that authorize different sentences for
comparable crimes, because such statutes always implicate the right to
“personal liberty” of the affected individuals.’ [Citation.]
Instead, the Supreme Court has said that the rational basis test applies
to equal protection challenges based on sentencing disparities.”].)

There was no equal protection
violation.

5. Presentence
custody credits were miscalculated.

As the Attorney General
properly concedes, Hernandez’s presentence custody credits were
miscalculated. “A sentence that fails to
award legally mandated custody credit is unauthorized and may be corrected
whenever discovered. [Citation.]” (People
v. Taylor (2004) 119 Cal.App.4th 628, 647; see also >People v. Acosta (1996)
48 Cal.App.4th 411, 428, fn. 8 [“The failure to award an adequate
amount of credits is a jurisdictional error which may be raised at any
time.”].)

Hernandez was arrested on February 24, 2009, and he remained in custody until his sentencing on May 17, 2011. For this period of time, he
was entitled to 813 actual days of presentence custody credit, not the
812 days he was awarded. (See >People v. Morgain (2009) 177 Cal.App.4th
454, 469 [“defendant is entitled to credit for the date of his arrest and the
date of sentencing”]; People v. Browning
(1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence
custody credits even though it was only partial day].) We will order the
judgment modified to correct this error.

6.
Hernandez was improperly convicted of a lesser included offense.

The
Attorney General properly points out Hernandez’s conviction on count 2
(attempted murder of Avalos) must be reversed because this was a necessarily
lesser included offense of his count 1 conviction for murdering
Avalos.

Multiple convictions may not be
based on necessarily included offenses.
(People v. Montoya (2004)
33 Cal.4th 1031, 1034.) “In most cases
‘this court has . . . affirmed multiple convictions for a
single act or indivisible course of conduct,’ leaving it to the sentencing
court to determine whether to stay execution of sentence on one or more
convictions pursuant to section 654 in order to avoid multiple punishment
for the same act. [Citation.] A defendant, however, cannot be
convicted of both an offense and a lesser offense necessarily included within
that offense, based upon his or her commission of the identical act. [Citation.]”
(People v. Sanchez (2001)
24 Cal.4th 983, 987, disapproved on other grounds by >People v. Reed (2006) 38 Cal.4th 1224,
1228.)

“Attempted murder is a lesser included offense of murder.” (People
v. Davidson (2008) 159 Cal.App.4th 205, 210; see also In re Sylvester C. (2006) 137 Cal.App.4th 601, 609 [“attempt
is a lesser included offense of any completed crime”].)

We will vacate the conviction and sentence on count 2.

7. Improper
minimum parole eligibility term imposed on count
4.

The Attorney General correctly
points out the trial court erred by using the gang enhancement statute
(§ 186.22, subd. (b))href="#_ftn5"
name="_ftnref5" title="">[5] to impose a
15-year minimum parole eligibility term on Hernandez’s count 4 conviction
for the attempted murder of Castillo.

Subdivisions (b) through (d) of
section 12022.53 impose enhancements on defendants who personally use a
firearm during the commission of an enumerated offense. Subdivision (e)(1) of that section
extends these enhancements to any defendant who is also found guilty under the
gang enhancement statute if a principal used a firearm. However, subdivision (e)(2) of
section 12022.53 then provides: “An
enhancement for participation in a criminal street gang
. . . shall not be imposed on a person in addition to an
enhancement imposed pursuant to this subdivision, unless the person personally
used or personally discharged a firearm in the commission of the offense.”

As People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282,
explained: “[W]here section 186.22
[the gang enhancement] has been found to be applicable, in order for section
12022.53 to apply, it is necessary only for a principal, not the accused, in
the commission of the underlying felony to personally use the firearm; >personal firearm use by the accused is
not required under these specific circumstances. However, as a consequence of this
expanded liability under section 12022.53, subdivision (e), the
Legislature has determined to preclude the imposition of an additional
enhancement under section 186.22 in a gang case unless the accused >personally used the firearm.”

Here, the trial court imposed a
15-year minimum parole eligibility term on count 4 despite the fact
Hernandez was not found to have personally used a firearm. This parole eligibility term must be
stricken.

>DISPOSITION

The judgment is affirmed as modified and remanded with
instructions. Hernandez is entitled
to one additional day of actual presentence custody credit, for a total of
813 days. The conviction and
sentence on count 2 are vacated.
The 15-year minimum parole eligibility term imposed in connection with
count 4 is vacated. The clerk of
the superior court is directed to prepare and forward to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation
an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







KITCHING, J.









ALDRICH, J.>