People v. Hernandez CA2/7 ( 2023 )

Filed 1/25/23 P. v. Hernandez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B322539
Plaintiff and Respondent, (Santa Clara Super. Ct.
Case Nos. B1689200,
v. C1886706)
CARLOS HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa
Clara County, Griffin Bonini, Judge. Affirmed in part, reversed
in part and remanded.
Stephen B. Bedrick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Donna M. Provenzano, Supervising
Deputy Attorney General, and David H. Rose, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury convicted Carlos Hernandez on two counts of special-
circumstance murder and other felonies with true findings on
related criminal street gang and firearm-use enhancements. On
appeal Hernandez contends the trial court erred in denying his
request to instruct the jury with optional language on antecedent
threats in CALCRIM No. 505 (self-defense as justifiable
homicide) and CALCRIM No. 3470 (self-defense as defense to
crime of shooting at inhabited dwelling) and erred in failing to
add a similar pinpoint instruction to supplement CALCRIM
No. 571 (imperfect self-defense). Hernandez also contends the
court erred in denying his motion to declare a mistrial or, in the
alternative, to strike the testimony of the coroner as a
consequence for the People’s failure under Brady v. Maryland
(1963) 373 U.S. 83 (Brady) to produce impeachment evidence. In
addition, relying on Assembly Bill No. 333 (Stats. 2021, ch. 699,
§ 3) (Assembly Bill 333), effective January 1, 2022, which
significantly modified the procedural and substantive
requirements for trying and proving gang enhancements,
Hernandez asserts all his convictions must be reversed. At a
minimum, he argues, his substantive conviction for active
participation in a criminal street gang and the gang
enhancements can no longer stand.
We reverse the conviction for active gang participation and
the true findings on the gang enhancements and vacate
Hernandez’s sentence. On remand the court is to give the People
an opportunity to retry the gang offense and/or gang
enhancements under the law as amended by Assembly Bill 333.
If the People elect not to retry Hernandez, or at the conclusion of
retrial, the court is to resentence Hernandez consistent with all
2
recently enacted ameliorative legislation. In all other respects we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
An amended information filed January 6, 2019 charged
Hernandez with the murders of Arturo Ramirez and Michael
1 2
Ramirez (Pen. Code, § 187, subd. (a)) (counts 1 and 2),
possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3),
active participation in a criminal street gang with intent to
promote, further or assist the gang’s felonious criminal conduct
(§186.22, subd. (a)) (count 4) and shooting at an inhabited
dwelling (§ 246) (count 5).
As to counts 1 and 2 the amended information specially
alleged two special circumstances—intentionally discharging a
firearm from a motor vehicle with intent to inflict death (§ 190.2,
subd. (a)(21)) and committing multiple murders (§ 190.2,
subd. (a)(3))—and a firearm enhancement (§ 12022.53, subd. (d)).
As to all but count 4 the amended information specially alleged
the offenses were committed to benefit a criminal street gang
3
(§ 186.22, subd. (b)). As to count 3 it specially alleged
1
Because Arturo Ramirez and Michael Ramirez share the
same surname, we refer to them by their first names for clarity.
2
Statutory references are to this code unless otherwise
stated.
3
At times we employ the shorthand “to benefit a criminal
street gang” to mean for the benefit of, at the direction of or in
association with a criminal street gang with the specific intent to
promote, further or assist in criminal conduct by gang members.
(See § 186.22, subd. (b)(1).)
3
Hernandez possessed a firearm (§ 12021, subd. (a)(1)), and as to
count 5 that a principal had discharged a firearm causing death
(§ 12022.53, subds. (d), (e)). In addition, the amended
information specially alleged Hernandez had suffered two prior
convictions for serious felonies within the meaning of both
section 667, subdivision (a), and the three strikes law (§§ 667,
subds. (b)-(i), 1170.12).
Hernandez pleaded not guilty and denied the special
allegations.
2. The Evidence at Trial
a. The shooting
Following an altercation between “Jake,” a member of the
Barrio Grande Tierra (BGT) gang, and “Elijah,” a member of the
Varrio Norteño Homeboys (VNH) gang, two subsets of the
Norteño criminal street gang, members of the subsets held a
meeting to discuss their response to the ongoing dispute. They
decided Jake and Elijah would resolve the matter with a one-on-
one fight in the local park. However, during a telephone call the
next day, Arturo, a BGT shot-caller, told Peter Sanchez, a VNH
shot-caller and Hernandez’s cousin, the fight would not occur as
planned. Sanchez angrily responded, “If it happens again, we’re
going to be knocking on doors.”
Christopher Ruby, Sanchez’s stepson, was a witness for the
prosecution after entering a negotiated plea. Ruby testified he
was with Sanchez during the call and understood Sanchez’s
words as making a “serious threat” to Arturo. According to Ruby,
Arturo replied, “Slide through,” which Ruby understood to mean,
“Come on over.”
After this telephone call Sanchez and several VNH
members, including Ruby, drove in Sanchez’s sports utility
4
vehicle (SUV) to Arturo’s home near the corner of 8th and Martha
Streets. Hernandez, described at trial as an associate of VNH,
followed them in his pickup truck. When Sanchez’s group and
Hernandez arrived at Arturo’s home, they were met outside by
Arturo, Michael and a large group of BGT gang members armed
with baseball bats and guns. Sanchez and one of his passengers
got out of the SUV. A shoving match ensued. Michael
brandished a gun and waved it in the face of one of the
passengers still in the SUV. Hernandez got out of his truck and
brandished an AK-47 assault weapon with the barrel pointed
toward the ground. At some point during the scuffle Arturo and
Sanchez decided they should take the dispute to the park for a
“one on one.” The crowd began to disperse. Sanchez and his
passenger got back in the SUV, and Hernandez returned to his
truck.
After the group returned to their vehicles, witnesses heard
several gunshots. Surveillance video footage showed gunfire
flashes coming from Hernandez’s truck. There was conflicting
evidence at trial as to who fired first. Several witnesses,
including Ruby, testified they had heard slower, softer gun shots
first, followed by louder, quicker shots, suggesting BGT members
had fired first and Hernandez had returned fire. At least one
other witness testified she believed she had heard the automatic
weapon first.
Ruby, calling Hernandez a “one-man army,” testified that
Hernandez was the only one in their group who had brought a
gun. According to Ruby, after Hernandez and Sanchez returned
to their vehicles but before any shots were fired, Hernandez
pulled up alongside Sanchez and had a brief conversation.
Sanchez told Hernandez they were taking the dispute to the
5
park. Hernandez said, “Come on,” let me “hit these fools.”
Sanchez said no. When Hernandez asked again, Sanchez
shrugged. Hernandez then quickly turned his truck around and
returned to the Ramirez house. (Ruby testified Hernandez made
a U-turn to return to the house although surveillance footage
showed Hernandez briefly driving in reverse in the direction of
the Ramirez house.)
After the initial shooting Hernandez sped north on 8th
Street toward the SUV, which had remained on the corner of 8th
Street and Martha Street. Sanchez made a right on Martha and
left the area. Hernandez continued driving straight. When
Hernandez reached a dead-end, he made a U-turn and drove
quickly past the Ramirez house again, spraying between 15 and
30 shots from his automatic weapon. Arturo and Michael were
killed by gunfire from the AK-47.
In testimony vigorously challenged by Hernandez’s counsel,
Ruby said, before returning to the Ramirez house for the last
time, Hernandez once again pulled his truck alongside the SUV
and told Sanchez he was “going back.” He had had his weapon
“on semi” during the initial shooting and intended to put it on
4
fully automatic. Defense counsel argued based on surveillance
video footage that no such conversation occurred.
4
In his appellate briefs Hernandez’s counsel referred to
Hernandez making two trips to the Ramirez house, the first when
he arrived and fired his weapon in response to BGT gunfire and
the second after he had made his U-turn at the dead end and
fired his weapon as he drove past. At oral argument Hernandez’s
counsel characterized the events as involving three trips: The
initial arrival at the house; backing up (or reversing direction)
and shooting his weapon in response to BGT gunfire; and
6
5
The People’s theory at trial was that no one was killed in
the initial exchange of gunfire. Michael and Arturo were killed
after Hernandez made his U-turn and returned to the house,
firing his automatic weapon along the way.
The defense theory at trial was that BGT gang members
fired the first shots, and Hernandez returned fire with his AK-47
in self-defense and sped away. When he came to a dead end,
Hernandez turned his truck around and, knowing he would have
to pass the house where people had just shot at him to return to
his own home, he again fired his weapon in self-defense.
b. The gang evidence
The prosecution introduced evidence of four predicate
offenses, each committed by a VNH gang member in 2011 or
2012. Detective Nader Yasin of the San Jose Police Department
testified as a gang expert for the People. Based on a hypothetical
scenario that closely tracked the People’s evidence and theory of
the case, Yasin testified the homicides were committed to benefit
a criminal street gang.
returning to house after making a U-turn at the dead end.
However the sequence is characterized, it is undisputed the
events described occurred within minutes, if not seconds, of each
other.
5
Hernandez and Sanchez were tried jointly. Sanchez,
charged with voluntary manslaughter, not murder, was
acquitted.
7
3. The Jury Instructions on Complete and Imperfect Self-
defense
The court instructed the jury with CALCRIM No. 505
(complete self-defense to homicide), CALCRIM No. 3470
(complete self-defense to shooting at an inhabited dwelling) and
CALCRIM No. 571 (imperfect self-defense as a mitigated defense
to murder). The court also instructed pursuant to CALCRIM
No. 1403 that the jury could consider gang evidence for limited
purposes, including in determining whether “[t]he defendant
actually believed in the need to defend himself.” The court
denied Hernandez’s requests to add optional (bracketed) material
contained in CALCRIM No. 505 relating to a defendant’s
knowledge of antecedent threats as a factor in determining
whether the defendant’s conduct was reasonable, finding that the
instructions, which allowed the jury to consider all the
circumstances as they were known to and appeared to the
defendant and evaluate what a reasonable person in a similar
situation with similar knowledge would have believed, were a
complete and adequate statement of the law based on the
evidence presented without the additional language.
4. Hernandez’s Motion for Mistrial or To Exclude the
Testimony of the Coroner
Dr. Michelle Jorden, Santa Clara County’s chief medical
examiner, performed the autopsies of Michael and Arturo. On
direct examination Dr. Jorden testified Michael had suffered a
gunshot wound to the head and described a “top to bottom” bullet
trajectory. Asked as part of a hypothetical question whether the
mortal wound to the head “was consistent [with] a person that’s
maybe trying to duck for cover or trying to get on the ground,”
Dr. Jorden replied, over objection, “Yes.” Asked whether the
8
nature of the wound “could that also be consistent with a person
that’s shooting a gun through a passenger’s door and then hitting
Michael Ramirez on the head as he’s attempting to go down to
the ground,” Dr. Jorden responded, over objection, “Yes.”
Dr. Jorden testified Arturo was shot twice, once in the
buttocks with the bullet travelling through the left abdomen, the
fatal wound, and once in his right hand. Asked whether Arturo’s
wounds were “consistent with, say, a bullet that goes through,
say, a car that Mr. Arturo Ramirez was maybe hiding behind and
then entering the back of the hand and existing out the palm,”
Dr. Jorden replied, over objection, “Yes.”
While the jury deliberated, Hernandez’s counsel alerted the
court the defense had discovered two memoranda, one from 2012
and another from 2019, written by a Santa Clara County deputy
district attorney. The memoranda, taken together, highlighted
Dr. Jorden’s opinions in two cases (in 2012 and 2019), both
involving the death of a child. In each case the author of the
memorandum wrote Dr. Jorden had become more advocate than
pathologist, describing herself as “an advocate for victims.” The
defense moved for a mistrial or, in the alternative, to exclude
Dr. Jorden’s testimony, describing the material as impeachment
evidence discoverable under Brady. The prosecutor stated he had
not become aware of the memoranda until after Dr. Jorden
testified. Although he discovered the existence of the memoranda
before the close of evidence, he did not think it was particularly
relevant in this case, in which cause of death was not an issue, let
alone that it constituted Brady material. The court denied the
motion, ruling there was no Brady violation and stating, in any
event, it would have excluded the material under Evidence Code
9
section 352 if it had been produced and defense counsel sought to
use it to impeach Dr. Jorden.
5. The Verdict and Sentence
The jury found Hernandez guilty on all counts and found
the special circumstance, firearm enhancement and gang
enhancement allegations true.
In a bifurcated proceeding the court denied Hernandez’s
motion to dismiss the prior conviction allegations under the
three strikes law and found all specially alleged prior conviction
allegations true. The court sentenced Hernandez to an aggregate
indeterminate state prison term of life without parole plus
115 years to life.
DISCUSSION
1. The Trial Court Did Not Err in Instructing the Jury on
Self-defense and Imperfect Self-defense and Denying
Hernandez’s Request for a Pinpoint Instruction
a. Governing law and standard of review
Self-defense, when based on a reasonable belief that killing
is necessary to avert an imminent threat of death or great bodily
injury, is a complete justification for homicide. (§ 197, subd. (3);
People v. Elmore (2014) 59 Cal.4th 121, 133-134.) For a killing to
be in self-defense, the defendant must actually and reasonably
believe in the need to defend. (People v. Humphrey (1996)
13 Cal.4th 1073, 1083; People v. Horn (2021) 63 Cal.App.5th 672,
682.) What is objectively reasonable will depend on all the facts
and circumstances, including the defendant’s prior experience
with his alleged attacker and knowledge about prior threats
made or attacks inflicted by the aggressor on the defendant or
someone else. (Humphrey, at p. 1083.)
An honest but unreasonable belief that it is necessary to
defend oneself from imminent peril to life or great bodily injury,
10
often referred to as imperfect self-defense, negates malice and
reduces what would otherwise be murder to voluntary
manslaughter. (People v. Duff (2014) 58 Cal.4th 527, 561; In re
Christian S. (1994) 7 Cal.4th 768, 773.) Imperfect self-defense is
not a true defense but instead “a shorthand description of
one form of voluntary manslaughter” (People v. Barton (1995)
12 Cal.4th 186, 200), comprising an unlawful killing in which the
defendant, while harboring either an intent to kill (express
malice) or a conscious disregard for life (implied malice) kills in
the actual but unreasonable belief in the need to act in self-
defense. (§ 192, subd. (a); People v. Blakeley (2000) 23 Cal.4th 82,
94, 89, 91.)
The trial court must give a requested instruction whenever
there is substantial evidence to support it, that is, “‘evidence
sufficient to deserve jury consideration.’” (People v. Leon (2020)
8 Cal.5th 831, 848; see People v. Marshall (1997) 15 Cal.4th 1, 39-
40.) When, as here, the defendant’s request for a particular
instruction was denied, we review the record de novo to
determine whether there was substantial evidence that required
giving the instruction. (People v. Avila (2009) 46 Cal.4th 680,
705.) If so, the failure to so instruct is error. (Leon, at p. 848.)
Conversely, “[i]t is error to give an instruction which, while
correctly stating a principle of law, has no application to the facts
of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129;
accord, Marshall, at pp. 39-40.)
b. Relevant proceedings
The court instructed the jury on complete self-defense in
accordance with CALCRIM No. 505, which, among other things,
told the jury that, “[w]hen deciding whether the defendant’s
beliefs were reasonable, consider all the circumstances as they
11
were known to and appeared to the defendant and consider what
a reasonable person in a similar situation with similar knowledge
6
would have believed.”
Hernandez requested the court also instruct the jury with a
modified version of optional language set forth in CALCRIM
No. 505: “If you find that Arturo Ramirez or Michael Ramirez
threatened or harmed the defendant [or others] in the past, you
may consider that information in deciding whether the
6
The court instructed in part, “A defendant is not guilty of
murder if he was justified in killing in self-defense/or defense of
another. The defendant acted in lawful self-defense or defense of
another if: [¶] 1. The defendant reasonably believed that he or
someone else was in imminent danger of being killed or suffering
great bodily injury; [¶] 2. The defendant reasonably believed that
the immediate use of deadly force was necessary to defend
against that danger; AND [¶] 3. The defendant used no more
force than was reasonably necessary to defend against that
danger. [¶] Belief in future harm is not sufficient, no matter how
great or how likely the harm is believed to be. The defendant
must have believed there was imminent danger or death or great
bodily injury to himself or someone else. Defendant’s belief must
have been reasonable and he must have acted only because of
that belief. The defendant is only entitled to use the amount of
force that a reasonable person would believe is necessary in the
same situation. If the defendant used more force than was
reasonable, a killing or attempted killing was not justified.
“When deciding whether the defendant’s beliefs were
reasonable, consider all the circumstances as they were known to
and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have
believed. If the defendant’s beliefs were reasonable, the danger
does not need to have actually existed.”
12
defendant’s conduct and beliefs were reasonable. [¶] If you find
that the defendant knew that Arturo or Michael Ramirez had
threatened or harmed others in the past, you may consider that
information in deciding whether the defendant’s conduct and
beliefs were reasonable. Someone who has been threatened or
harmed by a person in the past, is justified in acting more quickly
or taking greater self-defense measures against that person. [¶]
If you find that the defendant received a threat from someone
else that he reasonably associated with Arturo or Michael
Ramirez, you may consider that threat in deciding whether the
defendant was justified in acting in self-defense or defense of
another.”
The court denied the request, concluding the instructions
were complete as they were and nothing further was required.
c. There was no substantial evidence to warrant the
additional pinpoint instruction; any error would
be harmless in any event
The optional language in CALCRIM No. 505 on antecedent
threats by the victim or third parties the defendant associated
with the victim are, in effect, pinpoint instructions. (See People v.
Moon (2005) 37 Cal.4th 1, 30 [a pinpoint instruction highlights
evidence supporting the defendant’s theory of a case]; People v.
Garvin (2003) 110 Cal.App.4th 484, 488 [“‘[i]f an instruction
relates “particular facts to the elements of the offense charged,” it
is a pinpoint instruction’”; instruction on the effect of antecedent
threats in case involving self-defense is a pinpoint instruction];
see also Bench Notes to CALCRIM No. 505 [citing Garvin to
explain when optional material in CALCRIM No. 505 is
required].) A pinpoint instruction must be given on request
13
unless it is argumentative, duplicative, potentially confusing or
not supported by substantial evidence. (Moon, at p. 30.)
Relying on People v. Tafoya (2007) 42 Cal.4th 147 (Tafoya)
and People v. Minifie (1996) 13 Cal.4th 1055 (Minifie), Hernandez
contends the instruction would have allowed the jury to consider
Hernandez’s knowledge of BGT’s prior threats in deciding
whether Hernandez actually and reasonably believed he needed
to resort to deadly violence to protect himself. Neither case is
particularly helpful to Hernandez. In Tafoya and Minifie the
Supreme Court addressed alleged evidentiary error by the trial
court, not instructional error, specifically, the admissibility of
evidence the defendant had claimed was relevant to whether he
actually and reasonably believed he needed to resort to deadly
violence to protect himself. (See Tafoya, at p. 165 [defendant’s
knowledge of the victim’s dangerousness is relevant to a self-
defense claim; however, absent evidence that defendant knew
Gattenby was dangerous, “evidence of Gattenby’s reputation for
being dangerous was not relevant to defendant’s claim of self-
defense”]; Minifie, at pp. 1065, 1068-1069 [evidence that third
parties (not the victim) had threatened the defendant was
relevant and admissible only if accompanied by evidence the
defendant believed those parties to be associated with the
defendant].)
Here, Hernandez did not rely on evidence of prior threats to
explain his conduct, nor was there any need to do so. Rather,
Hernandez’s defense was that BGT members were armed; they
shot first; and he returned fire in self-defense. The court’s
instruction to consider “all the circumstances as they were known
to and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have
14
believed” was correct and complete. (See People v. Humphrey,
supra, 13 Cal.4th at pp. 1082-1083 [reasonableness of defendant’s
conduct is determined from the point of view of a reasonable
person in the defendant’s position; the jury must consider all the
facts and circumstances it might “‘expect[] to operate on [the
defendant’s] mind’”].)
Asked at oral argument whether there was any evidence of
antecedent threats directed to Hernandez or his confederates,
Hernandez’s counsel responded that Sanchez had threatened
Arturo over the telephone, telling him, “if this happens again,
we’re going to be knocking on doors.” But that statement, made
by Sanchez to BGT, not Arturo or his associates to Hernandez or
his confederates, was not a threat to VNH or its members and
associates. To the extent Hernandez contends Arturo’s response
to that remark, “slide through” or “come over,” was itself a threat,
or implies that the exchange itself created the specter of probable
gang violence that influenced Hernandez’s mental state in both
bringing and firing the automatic weapon, the jury was told
about it, distinguishing this case from the claim of evidentiary
error at issue in Tafoya and Minifie. More significantly, the
evidence was undisputed that, when the group arrived at
Ramirez’s house, they were met by a large group of BGT
members armed with guns, making the comments during the
earlier telephone call of comparatively little import to
7
Hernandez’s claim of self-defense.
7
Hernandez’s suggestion the first exchange of gunfire was
itself a threat justifying the instruction is similarly without
merit. The shooting at Hernandez by BGT gang members was
not an antecedent threat of violence; it was violence.
15
In any event, even if error occurred, the failure to give the
pinpoint instruction was harmless. (See People v. Pearson (2012)
53 Cal.4th 306, 325 [failure to give a proper pinpoint instruction
is not federal constitutional error; it is evaluated under Watson
“reasonable probability” standard of prejudice].) In asserting the
omission was prejudicial, Hernandez emphasizes the jury was not
instructed that a person in Hernandez’s position—knowledgeable
of prior threats or at the very least of BGT’s prior acts of
violence—would act more quickly to defend himself. However,
the jury was fully instructed to consider all facts known to
Hernandez. As for Hernandez’s knowledge of the BGT gang and
general acts of violence, the jury was also instructed in
accordance with CALCRIM No. 1403 that it could consider gang
evidence in determining whether “[t]he defendant actually
believed in the need to defend himself.” Because it convicted
Hernandez of murder, not voluntary manslaughter, the jury
necessarily rejected Hernandez’s version of events—that, at the
very least, he had a good faith belief his life was in danger and
deadly force was necessary for his protection. On this record, the
failure to give the requested pinpoint instruction, even if it were
error, would be harmless.
d. CALCRIM No. 571 on imperfect self-defense was
complete as given
The court instructed with CALCRIM No. 571 that a killing
that would otherwise be murder is reduced to voluntary
manslaughter if the defendant acted in imperfect self-defense or
defense of another. The court instructed, “The defendant acted in
imperfect self-defense or [imperfect] defense of another if: [¶]
1. The defendant actually believed that he or someone else was
in imminent danger of being killed or suffering great bodily
16
injury; and [¶] 2. The defendant actually believed that the
immediate use of deadly force was necessary to defend against
the danger; but [¶] 3. At least one of those beliefs was
unreasonable. [¶] . . . [¶] In evaluating the defendant’s beliefs
consider all the circumstances as they were known and appeared
to the defendant. . . [¶] . . . [¶] Imperfect self-defense does not
apply when the defendant, through his own wrongful conduct,
has created circumstances that justify his adversary’s use of
8
force.”
Echoing the argument he made in connection with
CALCRIM No. 505, Hernandez contends the court erred in failing
to provide a pinpoint instruction on Hernandez’s knowledge of
BGT’s prior threats. CALCRIM No. 571 does not contain optional
pinpoint language on antecedent threats; and Hernandez’s
counsel did not request one. Even if not forfeited (see People v.
Cole (2004) 33 Cal.4th 1158, 1211 [pinpoint instruction must be
requested or matter forfeited]; People v. Kelly (1992) 1 Cal.4th
495, 535 [same]), for the reasons discussed, the additional
language was not warranted; and its omission was not prejudicial
in any event. CALCRIM No. 1403 fully instructed the jury it
could consider evidence of ongoing gang violence between BGT
8
The court also instructed pursuant to CALCRIM No. 571,
“The People have the burden of proving beyond a reasonable
doubt that the defendant was not acting in imperfect self-defense
or imperfect defense of another. If the People have not met this
burden, you must find the defendant not guilty of murder.”
17
and VNH subsets in determining whether Hernandez actually
9
believed in the need to defend himself with deadly force.
Hernandez also argues CALCRIM No. 571 is incomplete
because it omits as a possible basis for imperfect self-defense that
the defendant actually believed he was in imminent danger and
actually believed he needed to use deadly force but used an
amount of force that was unreasonable under the circumstances.
The argument is without merit.
Imperfect self-defense exists if the defendant acted under
the honest belief that deadly force was necessary to protect
himself but that belief (either relating to the need to defend or
the amount of forced used) was unreasonable. (People v. Elmore,
supra, 59 Cal.4th at p. 134.) It is the honest but unreasonable
belief in the use of deadly force in a homicide case that negates
malice and reduces the killing from murder to voluntary
manslaughter. (Ibid.) That is precisely what the jury was
10
instructed. There was no error.
9
Hernandez’s argument his counsel’s failure to request the
additional language constituted ineffective representation thus
necessarily fails. Hernandez cannot show his counsel’s omission
fell below an appropriate standard of care, let alone a reasonable
probability he would have received a more favorable verdict had
the request been made and granted. (In re Gay (2020)
Cal.App.5th 1059, 1073; see Strickland v. Washington (1984)
466 U.S. 668, 694-695.)
10
Hernandez’s contention the court erred in failing to
supplement CALCRIM No. 3470 with the same clarifying
language relating to Hernandez’s knowledge of antecedent
threats by BGT gang members in determining whether he was
justified in resorting to self-defense measures involving deadly
18
2. The Trial Court Did Not Err in Denying Hernandez’s
Brady Motion To Declare a Mistrial or Strike
Dr. Jorden’s Testimony
As discussed, during the second day of jury deliberations
defense counsel learned of the two memoranda raising questions
about Dr. Jorden’s impartiality in cases involving the death of
children. The court denied Hernandez’s motion to declare a
mistrial or, alternatively, to strike Dr. Jorden’s testimony on the
ground the nondisclosure of impeachment evidence violated
Brady.
Due process requires the prosecution to disclose evidence
that is favorable to the defendant and material to the issue of
guilt or punishment. (Brady, supra, 373 U.S. at p. 86; People v.
Salazar (2005) 35 Cal.4th 1031, 1042.) Evidence is favorable if it
helps the defendant or hurts the prosecution. (Salazar, at
p. 1042.) This includes evidence that may impeach a prosecution
witness. (Ibid. [“[i]t is well settled that the prosecution’s Brady
obligation to disclose material evidence favorable to the defense
encompasses impeachment evidence”]; City of Los Angeles v.
Superior Court (2002) 29 Cal.4th 1, 8 [same].) Evidence is
material under Brady only if there is a reasonable probability
that, had it been disclosed to the defense, the result would have
been different. (In re Sassounian (1995) 9 Cal.4th 535, 544
[“[t]he requisite ‘reasonable probability’ is a probability sufficient
to ‘undermine[] confidence the outcome’ on the part of the
reviewing court”]; see People v. Jimenez (2019) 32 Cal.App.5th
409, 418 [materiality requires more than a showing that the
force fails for the reasons discussed. No basis exists to treat this
argument any differently from his argument relating to
CALCRIM No. 505.
19
absence of the suppressed evidence made conviction more likely
or that using the suppressed evidence might have changed the
outcome of the trial; “‘[a] defendant instead “must show a
‘reasonable probability of a different result’”’”].) A finding of
Brady error is reversible under these standards without further
harmless error review. (In re Sassounian, at p. 545, fn. 7
[because there is no error unless there is prejudice, a Brady
violation requires no further harmless error analysis; if there is
error, it is reversible].)
Hernandez contends all three Brady requirements were
established here: the two memoranda cast doubt on Dr. Jorden’s
credibility as an unbiased pathologist; the memoranda were not
produced; and, most importantly Hernandez argues, Dr. Jorden
provided “critical” evidence at trial relating to the cause of death
of Michael and Arturo: In response to hypothetical scenarios
posed to her, Dr. Jorden testified Arturo’s and Michael’s wounds
“were consistent” with a defensive posture, reinforcing the
prosecution’s theory that Hernandez was the aggressor.
Hernandez relies on People v. Deleoz (2022) 80 Cal.App.5th
642 (Deleoz). There, our colleagues in the Sixth District
addressed the effect at a murder trial of the nondisclosure of
certain material from the same memoranda. In that case
Dr. Jorden had testified the victim’s injuries could not have
resulted from a mere accidental fall. The court acknowledged
that Dr. Jorden’s opinion—excluding accident as a manner of
death—had provided a “‘critical element of the prosecution’s
case.’” (Id. at p. 666.) However, because the jury found the
defendant guilty of involuntary manslaughter rather than
murder, necessarily rejecting Dr. Jorden’s opinion, the court
20
ruled the third element of a Brady violation—prejudice—had not
been established. (Id. at pp. 666-667.)
In contrast to her testimony in Deleoz, Dr. Jorden’s
testimony in the case at bar was not material. The cause of
Arturo’s and Michael’s deaths was not an issue in the case, and
Dr. Jorden’s answers to hypothetical questions about how the
wounds might have been inflicted was far from definitive.
Dr. Jorden was not asked, and did not opine, the wounds could
only have been suffered in the way posed by the hypothetical or
even that it was likely the wounds were sustained that way. She
simply testified nothing about the wounds was at odds with the
prosecutor’s case theory. There is no reasonable probability the
memoranda, if produced and used at trial to impeach Dr. Jorden,
would have yielded a more favorable result for Hernandez.
3. Assembly Bill 333 Requires Reversal of the Gang
Conviction and Gang Enhancements
Section 186.22. subdivision (b), provides for enhanced
punishment when a defendant is convicted of a felony committed
“for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further,
or assist in criminal conduct by gang members.” Section 186.22
subdivision (a), makes it a criminal offense for a person who
actively participates in a criminal street gang to willfully
promote, further or assist in felonious conduct by gang members.
Assembly Bill 333 made a number of significant
modifications to section 186.22, increasing the threshold for
proving a gang participation offense and gang enhancements.
Under the principles enunciated in In re Estrada (1965) 63 Cal.2d
740, Assembly Bill 333’s amendments to section 186.22’s gang
enhancement statute apply retroactively to defendants whose
21
convictions are not yet final. (People v. Tran (2022) 13 Cal.5th
1169, 1207; accord, People v. Delgado (2022) 74 Cal.App.5th 1067,
1087; People v. E.H. (2022) 75 Cal.App.5th 467.)
Previously, proof of a “pattern of criminal gang activity” as
defined by section 186.22, subdivision (e), required evidence of
two or more identified predicate offenses, “provided at least one of
these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions,
or by two or more persons.” As amended, subdivision (e) now
requires proof that (i) the last offense used to show the pattern of
criminal gang activity occurred within three years of the date the
currently charged offense is alleged to have been committed;
(ii) the offenses were committed on separate occasions or by
two or more gang members, rather than simply “persons”; (iii) the
offenses commonly benefited a criminal street gang, and the
common benefit was more than reputational; and (iv) the
currently charged offense cannot be used to establish the
11
pattern.
The Attorney General concedes the gang evidence at
Hernandez’s trial, presented under the former law, fell short of
meeting the new proof requirements. Specifically, the Attorney
11
New section 186.22, subdivision (g), provides “to benefit,
promote, further, or assist means to provide a common benefit to
members of a gang where the common benefit is more than
reputational.” The new subdivision provides as examples of a
common benefit that is more than reputational “financial gain or
motivation, retaliation, targeting a perceived or actual gang rival,
or intimidation or silencing of a potential current or previous
witness or informant.”
22
General explains, the prosecution did not prove the predicate
offenses identified by the People’s gang expert were committed by
more than one gang member or the last predicate offense took
place within three years of the current offense. Hernandez
agrees with the Attorney General’s concession a remand for
retrial of the gang participation conviction and gang
enhancements is necessary. We agree, as well.
4. Assembly Bill 333 Does Not Require Reversal of All
Hernandez’s Convictions
Assembly Bill 333 also added section 1109, which requires,
when requested by the defendant, that a gang enhancement
charged under section 186.22, subdivision (b), be tried separately
from, and after, determination of the defendant’s guilt of the
12
underlying offense. (§ 1109, subd. (a) (Stats. 2021, ch. 699, § 5).)
Hernandez argues section 1109, like the rest of Assembly
Bill 333’s amendments, is retroactive to his case. (See People v.
Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022,
S274743 [holding section 1109 is retroactive to nonfinal cases;
People v. Ramos (2022) 77 Cal.App.5th 1116, 1129 [same]; People
v. Montano (2022) 80 Cal.App.5th 82, 108 [same].) The People
argue it is not. (See People v. Boukes (2022) 83 Cal.App.5th 937,
948, review granted Dec. 12, 2022, S277103 [section 1109 is not
an ameliorative statute that reduces punishment; accordingly, it
does not apply retroactively]; People v. Ramirez (2022)
79 Cal.App.5th 48, 65, review granted Oct. 12, 2022, S275341
[same].)
12
New section 1109, subdivision (b), provides a gang
participation charge under section 186.22, subdivision (a), must
“be tried separately from all other counts that do not otherwise
require gang evidence as an element of the crime.”
23
The Supreme Court, while recently recognizing this split in
appellate authority, has not yet addressed it, explaining that any
error in not applying section 1109 retroactively would be
harmless if the gang evidence would be admissible at trial even if
the gang enhancement allegations were bifurcated. (See People
v. Tran, supra, 13 Cal.5th at p. 1208 [“The question of whether
section 1109 applies retroactively is the subject of a split of
authority among the Courts of Appeal. [Citations.] We decline to
resolve this split because we conclude that any asserted error in
failing to bifurcate” was harmless under the standard for state
error identified Watson]; see also People v. Boukes, supra,
83 Cal.App.5th at p. 948, review granted [“[e]ven if we were to
hold that [section 1109] does apply retroactively, we would find in
this case that any error in the lack of bifurcation was harmless”];
People v. E.H., supra, 75 Cal.App.5th at p. 480 [“[e]ven if
section 1109 applied retroactively to his case . . . [defendant]
cannot show it is ‘reasonably probable’ he would have obtained a
more favorable result if his trial had been bifurcated”].)
13
We need not wade into the conflict in the appellate courts.
The case at bar involved a gang dispute. As Hernandez implicitly
recognizes, the gang’s rivalries and prior activities were directly
relevant to Hernandez’s motive and his claim he acted in self-
defense. While we agree with Hernandez that evidence of
predicate acts—that members of VNH had been convicted of
voluntary manslaughter, weapons possession and robbery in
2011 and 2012—as well as Detective Yasin’s opinion the crimes
13
The Supreme Court’s recent grant of review in People
Boukes, supra, S277103, deferring decision pending consideration
of the related issue in People v. Burgos, supra, S274743, suggests
the Court is likely to resolve the conflict.
24
charged in the case at bar were committed to benefit a criminal
street gang would likely have been excluded in a bifurcated trial
on the underlying charges, the most damaging aspect of the gang
evidence was relevant and admissible. On this record, there is no
reasonable probability Hernandez would have obtained a more
favorable verdict had the trial been bifurcated.
DISPOSITION
Hernandez’s gang participation conviction (count 4) and the
true findings on the gang enhancements are reversed. The
sentence imposed following trial is vacated. The cause is
remanded to provide the People an opportunity to retry the gang
participation offense and the criminal street gang enhancements.
If the People elect not to do so, Hernandez is to be resentenced in
a manner that is consistent with this opinion and with the terms
of all applicable ameliorative legislation.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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