P. v. Hernandez
Filed 2/26/13 P. v. Hernandez CA1/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO
JAVIER HERNANDEZ,
Defendant and Appellant.
A134490
(
Ct.
No. FCR287026)
Defendant
Francisco Javier Hernandez appeals from his conviction, after
weapon likely to produce great bodily injury, accompanied by findings that
certain enhancement allegations were true, for which defendant was sentenced to
a total of six years in state prison.
Defendant argues that the court erred when it denied his motion for
acquittal on the assault charge because there was not substantial evidence to
support a conviction; there was insufficient evidence to support the jury’s
finding that he personally inflicted great
and the court abused its discretion in denying his motion to dismiss the
information. We affirm the judgment.
In September 2011, the Solano County
District Attorney filed an
charged with attempted murder (Pen. Code, §§ 664, 187
and assault with a deadly weapon, a knife, likely to produce great bodily
injury (§ 245, subd. (a)(1)). It was
further alleged regarding both counts that defendant personally used a deadly
and dangerous weapon, a knife (§ 12022, subd. (b)(1)), and personally inflicted
great bodily injury (§ 12022.7, subd. (a)).
The information alleged the same counts and allegations regarding
codefendant Michael Felix Aquino, not a party to this appeal, except that it
was alleged that Aquino used a pipe as a deadly weapon. Defendant (and Aquino) pled not guilty and
denied the enhancement allegations.
Trial began in October 2011. As we will discuss further, the charges
against defendant and Aquino were based on the People’s contentions that the
two, and others, had attacked Brandon Lopez in the early morning hours at a
party that began on the evening of December
13, 2008 at a house in Suisun, California. The house was owned by the parents of two
sisters, Tessa and Kyla Perrin. The
parents were absent on the night of the party. Kyla, who lived at the house with her
boyfriend, Aquino, and Tessa, along with her boyfriend, Lopez, were
present. The party had other attendees,
including defendant, who was Aquino’s friend.
The parties did not dispute that
Lopez suffered from numerous stab wounds and other injuries as a result of the
incident. They did disagree over whether
defendant acted as the aggressor or in self-defense, and there was conflicting
testimony given by Tessa and Kyla regarding the issue. As we will discuss, the People contended the
point in the fight, defendant, Aquino, and others attacked Lopez, defendant
stabbing Lopez repeatedly, Aquino hitting Lopez in the head with a blunt
object, and all of the attackers beating Lopez until he was senseless. The defense contended the evidence showed
that Lopez was the aggressor and that defendant stabbed him in
self-defense.
The jury found defendant not guilty
of attempted murder and the lesser included offense of attempted voluntary
manslaughter, but guilty of assault by means likely to produce great bodily
injury. The jury found true the
allegations that defendant personally inflicted great bodily injury on Lopez
within the meaning of section 12022.7, subdivision (a), and personally used a
deadly and dangerous weapon, a knife.
The trial court sentenced defendant
to the midterm of three years for his assault conviction, three additional
years based on the finding that he personally inflicted great bodily injury,
and stayed sentence regarding personal use of a deadly and dangerous weapon,
for a total sentence of six years in state prison.
Defendant filed a timely
DISCUSSION
I. Defendant’s
Motion for Judgment of Acquittal
Defendant argues that the trial
court erred by denying his motion, brought pursuant to section 1118.1, for
judgment of acquittal regarding the assault charge, for which defendant was
ultimately convicted. Defendant argues
there was not sufficient evidence to support the court’s denial. We disagree.
A. The Relevant Proceedings Below
At the close of the prosecution’s
case, defendant’s counsel made a motion pursuant to section 1118.1 “generally
as to all charges, given the inconsistencies of the testimony here, that
clearly this was a defensive act on the part of [defendant], but especially as
to [the attempted murder charge]. It’s
my position that attempted murder has not been shown at all in this case.†Aquino’s counsel joined in the motion as to
the attempted murder charge.
The prosecution opposed the motion
because, “given the nature of the injuries and the area of Lopez’s body, the
fact that he was struck in the head with a blunt object, he suffered a fractured
skull, he was struck repeatedly in the head, and there is testimony that you
can kill a person by hitting them in the head with a blunt object, and also the
fact that he was stabbed somewhere between 16 and 18 times, and that you can
kill a person by stabbing them—with all that, I think its up to the jury to
determine what the defendants intended to do.
The testimony from Tessa Perrin is that Lopez was not moving and they
were continuing to strike him. [¶] And I think it’s a question of fact for the
jury whether it was an attempted murder.â€
The court ruled that, “as to both
defendants, regarding the attempted murder, the court is going to deny the
1118.1.â€
B. Analysis
Section 1118.1 states in relevant
part that “the court on motion of the
defendant . . . , at
the close of the evidence on either side . . . , shall order the entry of a
judgment of acquittal of one or more of the offenses charged in the accusatory
pleading if the evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal.†(§ 1118.1.)
In ruling on such a motion, “the trial court must consider whether there
is any substantial evidence of the existence of each element of the offense
charged, sufficient for a reasonable trier of fact to find the defendant guilty
beyond a reasonable doubt.†(
1286.) The appellate court independently
reviews the trial court’s ruling. (
As defendant points out, in
reviewing a challenge to the sufficiency of the evidence, appellate courts
“review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]
If the verdict is supported by substantial evidence, [appellate courts]
must accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.†(People
v. Koontz (2002) 27 Cal.4th 1041, 1078.)
Defendant does not deny that he
stabbed Lopez with a kitchen knife that he obtained at the house, or that the
evidence indicated Lopez had two or three stab wounds on his left arm, one on a
finger of his right hand, and 13 or 14 on his left leg. Nor does defendant deny
that there was evidence that Lopez had a depressed skull fracture by his left
eye socket and bleeding at multiple locations in his skull, which injuries led
to surgery and continued to cause him problems at the time of trial. The parties also stipulated that the surgeon,
if called to testify, would state that Lopez had a subdural hematoma, which
could have been fatal, and suffered a “greenstick type fracture, with a
depression in the center,†a type of injury “caused by a blunt object, not
stabbing with a knife.â€
However, according to defendant,
certain evidence demonstrated that he “lacked criminal intent when he reacted
to [Lopez’s] violence†because it showed that he “intended to act only in
self-defense[,] i.e., he had no criminal intent.†Defendant’s appellate argument appears
premised on the factual theory that Lopez, in an intoxicated state, became aggressive,
including towards Tessa, and attacked defendant without good reason, at which
point defendant had no choice but to defend himself.
Specifically,
defendant refers to Kyla’s testimony that in the course of the party, Lopez
kept yelling at Tessa and started getting “goofy,†whereupon Lopez’s friends
left; just before the fight began, Lopez threw things, including a bottle that
struck Tessa, and said the house was his because he put in its floors and
tiles; defendant occupied himself in the computer room of the house during the
evening; when defendant started to help clean up the kitchen, the “first thing
that happened†was that Lopez grabbed defendant by the hair, pinned him to the
ground, and punched him after defendant indicated he did not want to fight;
after Tessa and Kyla had pushed defendant and Aquino out of the front door of
the house, Lopez punched Tessa in the face when she tried to stop him from
going outside and continuing the fight; and Lopez then continued the fight and
had defendant in a headlock by the front stairwell. Defendant also points to testimony by an
investigating detective for the City of Suisun,
Eric Vera, that Tessa described Lopez to him as a “big muscular guy†and
defendant as a “kid†and a “little
guy.†According to defendant, Lopez was
a “drunken bully†and defendant “[b]y grabbing a knife off the kitchen counter
to protect himself, . . . took the only course left open to him by
[Lopez]. He lacked criminal intent to
commit the instant crime.â€
Defendant’s argument and contentions
are unpersuasive in light of the substantial evidence that supported the trial
court’s denial of his motion, which defendant does not address. This evidence included Tessa’s testimony, as
well as that of Detective Vera about statements made by Kyla shortly after the
incident occurred.
Tessa testified that at some point
during the party, she heard a seemingly friendly discussion in the kitchen, in
which Lopez and Aquino said they were from the west side of Fairfield
and defendant said he was from “EPA,†which, defendant said, meant East
Palo Alto. At some point
after this discussion, defendant walked into the kitchen and asked Kyla, “Do
you want me to handle anybody for you?
Do you want me to kill anybody?â€
Kyla told him to be quiet.
Tessa testified that people started
to leave the party, at which point Lopez was becoming intoxicated. She discussed leaving with Lopez and they
argued about it in the kitchen as Tessa cleaned some orange juice that Lopez
had somehow spilled on the floor.
Although Tessa did not know how it spilled, it was not because Lopez had
thrown it at her. Lopez did not push or
hit her, or throw anything at her.
According to Tessa, others,
including defendant, came into the kitchen, followed by Kyla. Defendant and Lopez began arguing and Tessa,
although she did not see how the fight started, saw defendant punch Lopez in
his left eye and Lopez then grab defendant by the hair and pull him to the
floor. The two wrestled, making their
way into the living room by some stairs, as Aquino said to let them fight. Tessa did not see any punches thrown or any
kicking as the two wrestled.
Tessa said that she and Kyla were
able to break up the fight and push defendant and Aquino out the front door,
which Kyla closed; Tessa did not see whether Kyla locked it. In the living room, Tessa called Lopez’s
sister while Lopez stood by the stairs.
Kyla was between them, “screaming†something like, “Oh, my gosh,†as was
Tessa.
According to Tessa, the door opened
less than a minute after Kyla had closed it and defendant, followed by Aquino
and another person, came back into the house.
Defendant “[j]umped on top of [Lopez]†and “[t]hey started fighting by
the staircase, on the staircase,†punching at each other. Aquino hit Lopez over the head three or four
times with what looked to Tessa like a two to three-inch long thick piece of
wood; however, Tessa acknowledged that she told Detective Vera on the morning
after the incident that it was a “pool stick,†had no idea what the object was,
and could only say that she saw “something being struck at†Lopez.
Tessa testified that Lopez fought
back at first but, after he was hit over the head the second time, he did not
move. He leaned against the wall as
Tessa tried to get everyone off of him while screaming that they were going to
kill him and that she and Lopez had a son.
Lopez had blood on his face, head, and shoulders. Tessa said she pulled Lopez off the staircase
and they landed on the floor. Tessa laid
on top of him, belly to belly, as the attackers continued to hit him. Lopez’s legs were exposed. Aquino kicked him and defendant punched
Lopez’s legs. She could not see if
defendant had any weapons.
Tessa further testified that she
screamed for Kyla to call the police and the attackers left. Lopez was “knocked out.†He started to come to and started getting
up. As he leaned on Tessa, they walked
outside through the garage. Lopez was
“out of it†and collapsed. An ambulance
and the police arrived soon thereafter.
At trial, Kyla testified about the
incident in a number of ways that were inconsistent with Tessa’s account and,
as we have already discussed, her account indicated that Lopez, not defendant,
was the aggressor in the fight. She also
testified that she only “vaguely†remembered talking to Detective Vera on the
morning after the incident. She did not
recall telling Vera various things about the incident.
Vera testified that he interviewed
Kyla the morning after the incident.
Among other things, Vera said, Kyla told him that when Lopez called some
of his friends to come over to the house, defendant approached her and asked if
there was a problem; Kyla told him to calm down. At another point, when Lopez and Tessa were
arguing, defendant asked Kyla, “ ‘Do you want me to handle it? I’ll kill everybody in here. I’ll kill him,’ †referring to
Lopez. Kyla again told him to calm
down.
Vera further testified that Kyla
said that, after defendant and Aquino were outside, the two banged on the
locked door. Lopez tried to push her
aside and succeeded in unlocking the door, at which point defendant and Aquino
rushed in. She said she saw Aquino
fighting Lopez, including punching him, and that she had her back to the people
who were jumping into the fight. She
also told Vera that she saw a stick coming over her, which seemed like a broken
broomstick or broom handle and that she doubted that Aquino was the one using
it. She also told Vera that she saw
defendant had a knife and that she grabbed it from his hand while they were in
the house and threw it outside.
The testimony of Tessa and Detective
Vera was substantial evidence from which a jury could conclude defendant was
guilty of the assault charge, if only because it indicates that defendant
attacked Lopez, including with a knife, when he reentered the house, and not
necessarily in self-defense. Defendant
does not argue otherwise, but instead, urges us to consider contrary evidence
in his favor. However, “it is not within
our province to reweigh the evidence or redetermine issues of credibilityâ€
under a substantial evidence standard of review. (People
v. Martinez
in denying his section 1118.1 motion is without merit.
II. The
Great Bodily Injury Enhancement
Defendant also argues that there was
insufficient evidence to support the jury’s conclusion that defendant, in
committing the assault, personally inflicted great bodily injury on Lopez. Again, we disagree.
Section 12022.7, subdivision (a),
provides that “[a]ny person who personally inflicts great bodily injury on any
person other than an accomplice in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment
in the state prison for three years.†(§
12022.7, subd. (a).) Section 12022.7,
subdivision (f), provides that “ ‘great bodily injury’ †meant “a significant
or substantial physical injury.†(§
12022.7, subd. (f).) “A finding that the
victim suffered great bodily injury must be upheld on appeal if supported by
substantial evidence, even if the circumstances could also be reconciled with a
contrary finding.†(People v. Bustos (1994) 23 Cal.App.4th 1747, 1755 (
courts have upheld a great bodily injury finding “where the victim suffered
multiple abrasions and lacerations, swelling and bruising†and “where the
victim suffered multiple abrasions, asphalt burns, bruises, and temporary pain
and limping.†(Ibid., citing People v.
Sanchez (1982) 131 Cal.App.3d 718, 733 and People v. Escobar (1992) 3 Cal.4th 740, 744, 750.)
As we have already indicated, in
reviewing a challenge to the sufficiency of the evidence, appellate courts
“review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]
If the verdict is supported by substantial evidence, [appellate courts]
must accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.†(People
v. Koontz, supra, 27 Cal.4th at
p. 1078.)
Defendant argues that there was
insufficient evidence to support the jury’s great bodily injury finding
because, although there was evidence that Lopez had suffered numerous stab
wounds and a depressed skull fracture, there was also testimony that he was
released from the hospital after five days because he was making a “pretty
[good]†recovery, was unlikely to have suffered eye damage, had “ ‘progressed
rapidly’ †overall, was making “ ‘good progress with physical therapy,’ †and
was “ ‘ambulating without difficulty.’ â€
By the sixth day he was also “eating well.†His vital signs were normal when released and
a physician testified that, when he was released, he was making “ ‘an
excellent recovery.’ â€
Defendant’s arguments are
unpersuasive in light of our substantial evidence standard of review. Defendant does nothing to explain why a
reasonable juror could not conclude that Lopez’s injuries, particularly his 16
to 18 stab wounds, were sufficient to support the challenged finding against
him, regardless of evidence of recovery (which itself was not persuasive, given
Lopez’s testimony that he continued to have problems at the time of trial
stemming from his injuries). Like the
cases cited in Bustos, we cannot say
that as a matter of law the injuries suffered by Lopez did not constitute
significant or substantial physical injury.
Therefore, defendant’s claim that there was insufficient evidence to
support the jury’s conclusion that he had personally inflicted great bodily
injury on Lopez lacks merit.
III. Defendant’s
Motion to Dismiss
Finally, defendant argues that the
trial court abused its discretion when it denied his motion to dismiss the
information filed against him, which filing, defendant argued, was a violation
of his due process rights. The People
assert defendant has waived this appellate claim. We agree, but for a different reason than
that asserted by the People.
A. The Relevant Proceedings Below
The present case was the second
initiated against defendant regarding the subject incident. Previously, in August 2011, with trial
scheduled to begin later in the month, the People moved pursuant to section
1385 to dismiss without prejudice the felony information filed against
defendant in case No. FCR261662, as well as the informations filed against
others, including Aquino.
name="_ftnref4" title="">[4] The People so moved because, they asserted,
they wanted to file additional charges against two of the charged defendants,
two subpoenaed doctors were unavailable to testify on the dates set, and the
People wanted relief from their stipulation not to use defendants’ statements
in their case in chief because “recent developments have made it clear that
these statements are necessary to the People’s case.†Defendant opposed the motion on a number of
grounds, including because anything other than a dismissal with prejudice would
violate his due process rights.
The court granted the People’s
motion and dismissed the charges. Later
that same month, August 2011, the People filed a felony complaint against
defendant in case No. FCR287026.
Defendant moved to dismiss this case, arguing that the grant of the
previous section 1385 motion to dismiss was not in the furtherance of justice
and violated his due process rights.
Defendant immediately filed a motion
to dismiss the new action on the ground that “the procedure used by the
District Attorney in the re-filing of the case denies [defendant] due process
of law.†Defendant argued that the trial
court had previously abused its discretion by granting the People’s motion to
dismiss the prior action pursuant to section 1385, and that doing so had denied
him his due process right to a speedy trial.
Defendant also challenged other reasons asserted by the People for the
dismissal of the prior action. He
concluded that “the prosecution’s motion to dismiss circumvented, rather than
promoted, justice.â€
The
court considered argument on defendant’s motion to dismiss the new action at
the preliminary hearing. The parties
informed the court that defendant had filed a writ with the appellate court
regarding the court’s dismissal of the prior action. This led to the following exchange between
the court and defendant’s counsel, Meenha Lee:
“THE
COURT: All right. Ms. Lee . . . , you did indicate there was a
writ. And is that concerning the
propriety of the dismissal?
“MS. LEE: It is, Your Honor. And I’m asking separately for this court to
dismiss based on the due process violations.
Obviously if the Court of Appeal grants my motion then that—that’s a way
that [defendant] will get the remedy.
“But I’m asking separately and
alternatively for this court, now that, in fact, the case has been re-filed as
an attempted murder, for the reasons I stated in the motion and arguments, that
[defendant] has been actually prejudiced and that this is in violation of his
due process rights, that it be dismissed for those reasons.
“THE COURT: All right.
Does the writ include the due process violations for re-filing?
“MS. LEE: Yes.â€
The court then ruled that “this
motion to dismiss, it is incorporated in the writ . . . . And if the Court of Appeal does grant that,
then your client, it appears to me, would not proceed in this case, so that
would address your issues. [¶] I’m going to deny your motion to
dismiss. It appears to be the same issue,
in part, that’s being litigated right now.â€
The record submitted by the parties
does not contain the appellate ruling on the writ discussed at the hearing.
B. Analysis
Defendant argues the trial court
abused its discretion in denying his motion to dismiss the new information
because “justice clearly favored†his request for dismissal. He contends that the People sought dismissal
to obtain a continuance of the upcoming trial “in the guise†of a dismissal motion. He further argues that the People, by
stalling, denied defendant due process and a fair trial because he was 17 years
old at the time of offense and “remained in custody for years after that while
awaiting trial.â€
Defendant’s appellate arguments are
unpersuasive because they fail to address the actual basis for the trial
court’s denial of his motion: that there
was a pending writ before the appellate court raising the same issues at the
time defendant made his motion. “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.†(People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573; Denham v. Superior Court (1970) 2 Cal.3d 557,
564 [“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be affirmatively shown’ â€].)
Defendant does not attempt to explain why the trial court’s denial of
his motion for the reasons actually relied on by the court was an abuse of its
discretion. Therefore, we reject his
claim. Given
our conclusion, we have no need to, and do not, address the People’s arguments
that defendant has forfeited his appellate claim because either the appellate
court denied him relief for stated reasons that became the law of the case or
did so without stating reasons, which would have required defendant to ask the
trial court for a ruling on the merits of his motion before bringing his
appellate claims.
DISPOSITION
The judgment is affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Haerle, Acting
P.J.
_________________________
Richman, J.
Code unless otherwise indicated.
without referring to the assault count, although defendant brought his section
1118.1 motion regarding all charges.
Defendant characterizes the
court’s denial of his motion as including a denial regarding the assault count
as well, and the People do not disagree.
Therefore, we address the merits of defendant’s appellate claim without
considering further whether there were deficiencies in the court’s ruling that
required further action by defendant to preserve his appellate claim.
