People v. Hernandez CA2/3 ( 2021 )

Filed 2/11/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B297619
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA146758
v.
CESAR MOISES HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed with
directions.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Cesar Moises Hernandez was convicted of
murder and being a felon in possession of a firearm. He was
sentenced to 80 years to life in state prison. On appeal, defendant
contends that the trial court erred by denying his motion to
quash a search warrant, the prosecutor committed misconduct
during rebuttal argument, trial counsel was ineffective, and the
matter should be remanded to allow the court to strike or dismiss
the firearm and serious felony enhancements. We affirm.
PROCEDURAL BACKGROUND
By amended information filed in March 2019, defendant
was charged with first degree murder (Pen. Code,1 § 187, subd.
(a); count 1) and with being a felon in possession of a firearm (§
29800, subd. (a)(1); count 8).2 The information alleged that
defendant personally used and discharged a firearm which
caused death (§ 12022.53, subds. (b), (c) & (d)). The information
further alleged that defendant sustained one prior serious or
violent felony (§ 667, subd. (a)(1)), which qualified as a strike
within the meaning of the Three Strikes law (§§ 667, subds. (b)–
(j), 1170.12). Defendant pled not guilty and denied the
allegations.
In April 2019, the jury found defendant guilty of both
counts and found the firearm enhancement allegation under
section 12022.53, subdivision (d), true. In a bifurcated bench
1 All undesignated statutory references are to the Penal Code.
2 Counts 2 through 7 were subsequently dismissed.
2
proceeding, defendant admitted and the court found true the
prior felony conviction allegation.
On May 6, 2019, the court sentenced defendant to state
prison for a total of 80 years to life calculated as follows: as to
count 1, 25 years to life, doubled to 50 years to life (§§ 1170.12,
subds. (a)–(d), 667, subds. (b)–(d)), plus 25 years (§ 12022.53,
subd. (d)), plus five years (§ 667, subd. (a)(1)); as to count 8, three
years, doubled to six years (§§ 1170.12, subds. (a)–(d), 667, subds.
(b)–(d)), which was stayed (§ 654).3
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
1. The Shooting
On June 25, 2018, at approximately 1:35 a.m., William
Baker was driving southbound on Long Beach Boulevard and
observed two vehicles on the side of the road. The white car had
minor damage on the front driver bumper area. As Baker began
to slow down to pull over to the side of the road, he saw a man,
who was standing next to a pickup truck, pull out a gun and
shoot the driver of the truck. The shooter was a Hispanic man
and he wore a white shirt. Baker, who had not fully stopped his
car, began to drive away. From his rearview mirror, he observed
the white car pull into traffic and make a U-turn on Long Beach
Boulevard.
Around 1:50 a.m. on June 25, 2018, Deputy Sheriff Jesus
Jimenes discovered the victim, Edgar Vasquez, slumped in the
driver’s seat of the truck. The truck was found about 100 yards
3 In the disposition, we direct the court to correct the abstract of
judgment to reflect its oral pronouncement of sentence.
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from Las Carinosas Bar. The bar is located at 9925 Long Beach
Boulevard in Lynwood. The rear window of the truck had been
shattered and blood was running down Vasquez’s face. Vasquez
had been shot in the head and was dead.
2. Events Before the Shooting
Defendant’s girlfriend, Gabby, had worked at Las
Carinosas Bar several nights a week. When she worked at the
bar, defendant was also usually at the bar and would stay for
several hours. Defendant drove a white Nissan when he came to
the bar with Gabby.
Gabby had stopped working at the bar before the
shooting. On the evening of the shooting, however, Gabby asked
the bar’s owner, Javier Mayer, if she could come back to work.
Mayer said yes, but Gabby never returned to work.
There were several surveillance cameras throughout the
interior of Las Carinosas Bar, as well as in the rear parking lot
and the front street entrance. Video footage showed that on June
24, 2018, Gabby and defendant arrived at the bar around
10:00 p.m. Defendant drove a white compact car. At
approximately 11:45 p.m., Vasquez arrived at the bar. He parked
his truck in the rear parking lot. Vasquez did not interact with
defendant or Gabby that evening.
At some point in the evening, between 11:45 p.m. and
1:15 a.m., defendant and Gabby got into a heated argument. At
approximately 1:25 a.m., Gabby walked out the front of the bar
and defendant followed her. Defendant moved his car, which was
parked in front of the bar on Long Beach Boulevard, to the rear
parking lot. A few seconds later, Gabby was seen running down
an alley behind the bar. At approximately 1:29 a.m., minutes
before the shooting, surveillance footage showed Gabby in front of
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Salgado’s Bakery, which was less than one block down the street
from the bar.
Back at the bar, defendant appeared to be looking for
Gabby. At one point, he knocked on the door of the women’s
restroom. When the security guard asked defendant what he was
looking for, defendant said, “Fuck you.” Defendant knocked on
Mayer’s office door and said goodbye. Defendant appeared pretty
upset.
At approximately 1:35 a.m., Vasquez left the parking lot of
the bar in his truck. A white Nissan followed his truck and sped
out of the rear parking lot. Seconds later, Vasquez’s truck and the
white Nissan were captured driving on Long Beach Boulevard
past the front entrance of Las Carinosas Bar. Within one block of
the bar, the Nissan forced the truck to pull over in front of
Salgado’s Bakery.
The driver of the Nissan got out of the car and approached
the driver’s side of the truck. The shooting itself is not visible in
the video footage. Shortly after the driver of the Nissan was by
the truck, the truck began to roll forward. The driver of the
Nissan returned to the car and drove away. The truck rolled
forward until it came to a complete stop. The Nissan made a U-
turn on Long Beach Boulevard.
Less than one minute lapsed from the time Vasquez drove
away from the bar to when the shooting occurred. Vasquez was
shot in front of Salgado’s Bakery, which is located at 10007 Long
Beach Boulevard.
3. Cell Phone Records
Defendant’s and Gabby’s cell phone records were analyzed
for the time period between 12:00 a.m. to 4:00 a.m. on June 25,
2018. Defendant’s cell phone number on the day of the shooting
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was 323-354-5249, and Gabby’s cell phone number was 213-604-
5505. From 1:28 a.m. (minutes after Gabby left the bar) to
1:34 a.m. (minutes before the shooting), defendant called Gabby
16 times. Defendant received a call from Gabby at 1:37 a.m., who
was last seen on camera at Salgado’s Bakery. This call was
placed less than a minute after the shooting occurred.
4. Defendant’s Arrest
The police ran defendant’s name through departmental
resources. They found a traffic citation that was issued to him in
February 2018 in Pasadena. Defendant was driving a white
Nissan Altima that was registered to Maria Elena Hernandez.
Photographs of the Nissan captured by the police’s automated
license plate system confirmed that three months before
Vasquez’s murder, the car had damage to the front end as
described by Baker. The day after the murder, defendant was
involved in a traffic collision while driving a white Acura. The
Acura was registered to defendant’s sister.
On August 3, 2018, at approximately 2:05 p.m., defendant
was arrested at 445 West Gage Avenue, Los Angeles (Gage
residence). The police recovered a cell phone in defendant’s
pocket with the registered phone number of 323-354-5249. Under
the contacts section of the phone, there was a contact for “Gabby
Fea” and a phone number of 213-604-5505.
5. Post-Arrest Communications; Recovery of the Nissan
Lucero Mejia, defendant’s cousin’s fiancée, has known
defendant for five years and has met Gabby. After defendant was
arrested, she visited him in jail approximately once a week for
two months. Defendant also frequently called Mejia while he was
in jail. Mejia relayed messages from defendant’s family to
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defendant. Mejia also relayed messages from Gabby to defendant.
Gabby lived in Tijuana, Mexico.
On September 21, 2018, the police were notified that a
white Nissan was impounded in Tijuana. A pay stub bearing
defendant’s name was in the glove box. The car had the same
distinct tires, door handles, window shape, and location of
headlights as the car driven by the shooter as captured on
surveillance footage. The car was transported to a tow yard in
Compton, California. Paint chips from the white Nissan and
Vasquez’s truck were compared and analyzed. There was no
chemical difference in six of the areas that were tested.
On September 28, 2018, Mejia visited defendant in jail and
had a message to relay from Gabby that Mejia had written on a
piece of paper. Gabby was sorry that the authorities had
impounded the Nissan. Gabby felt it was because of her
conversations with defendant that the authorities were able to
find the car. Mejia told Gabby that defendant thought it was
because Gabby and her son were driving the car around. Gabby
said that she missed defendant but it was best if they did not talk
to each other for about a month.
DISCUSSION
1. Motion to Quash Search Warrant and Suppress
Evidence
Defendant contends that the trial court erred in denying
his motion to quash a search warrant and to suppress evidence
seized from the Gage residence. Defendant also contends that
counsel was ineffective by failing to challenge the warrantless
search of the cell phone used by him on the day of the shooting,
323-354-5249, and by failing to challenge the warrantless
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“pinging” over several days of calls from his current cell phone,
310-893-3465, to obtain his location and attempt to connect him
to the Gage residence.4
1.1. Additional Facts
Before trial, defendant filed a motion to quash an August 3,
2018 search warrant and to suppress evidence seized from the
Gage residence on that date (the motion). Defendant argued
there was insufficient probable cause to believe he resided at or
was connected to the Gage residence. The motion attached a copy
of the search warrant and Detective Troy Ewing’s affidavit in
support of the warrant. Based on Ewing’s affidavit, Judge
Hayden Zacky had found probable cause for issuance of the
search warrant and issued it at 9:05 a.m. on August 3, 2018.
In the statement of probable cause, Ewing recited the facts
of the underlying murder and the results of the investigation. For
example, on June 26, 2018, the day after the murder, defendant
was involved in a traffic collision while driving the Acura, and
defendant provided the responding officer with the phone number
323-354-5249. And in mid-July 2018, an anonymous source who
knew defendant and Gabby’s phone numbers contacted Ewing,
providing 310-893-3465 as defendant’s current cell phone number
and 213-604-5505 as Gabby’s cell phone number. Ewing stated
that a search warrant was submitted to the relevant cellular
providers of the two cell phone numbers and the companies
provided the requested records.
4“Pinging” refers to the process of determining the location of a cell
phone by tracking the signal sent by the phone to a cell phone tower.
8
Further, Ewing stated that on February 2, 2018, defendant
was cited by the Pasadena Police Department while driving in a
white Nissan Altima with front end damage. Ewing checked the
Department’s license plate reader system and observed the white
Nissan parked in front of the Gage residence on several
occasions. Ewing also indicated that detectives were actively
pinging defendant’s phone. On August 2, 2018, the pings showed
that defendant’s phone was at the Gage residence around
7:00 p.m. Detectives were in the area and observed the Acura
arrive and park in the alley. The following morning, the vehicle
was still parked in the alley.5
Ewing testified at the March 19, 2019 suppression hearing.
He sought the issuance of the August 3, 2018 search warrant for
the Gage residence based on, among other things, observing the
Acura at the location, pings placing defendant’s phone at the
location, and photographs taken before the murder showing the
Nissan parked at the location on several occasions.
Based on Ewing’s affidavit, Judge Michael Schultz found
there was insufficient probable cause to believe defendant resided
in or was associated with the Gage residence. The court found,
however, that based upon Ewing’s testimony, which the court
found to be “very credible,” the good faith exception applied. The
court noted additional facts that Ewing testified to that were not
in his affidavit: Ewing was pinging defendant’s phone in real
time as defendant was driving towards the Gage residence and a
man was observed getting out of the Acura and entering the Gage
5 Pursuant to a search warrant issued on July 24, 2018, phone records
for defendant’s older cell phone number, 323-354-5249, and cellular
site locations associated with that number, were obtained during the
investigation.
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residence. The court explained that these facts would have
strengthened the conclusion that there was probable cause to
believe defendant had a nexus to the Gage residence. The court
ultimately found that because Ewing was very credible, that he
testified that he made a mistake, and that based on what he did
observe, he relied on the warrant in good faith. Thus, the court
denied the motion. There was no discussion by the parties
regarding any challenge to the searches of any of the phone
numbers listed in the warrant.
1.2. The court did not err in denying the motion.
Defendant contends that the August 2018 search
warrant is invalid because an objectively reasonable officer would
not have believed that an affidavit “based on half truths and
distorted facts and information already illegally obtained”
established probable cause.
Absent probable cause, a search may nonetheless be valid
under the good faith exception to the exclusionary rule. (United
States v. Leon (1984) 468 U.S. 897, 906.) This exception provides
that evidence obtained in violation of the Fourth Amendment
need not be suppressed where the officer executing the warrant
did so in objectively reasonable reliance on the warrant’s
authority. The test for determining whether the exception applies
is whether a reasonably well trained officer would have known
that the search was illegal despite the magistrate’s authorization.
(Id. at pp. 922–923, fn. 23.) In reviewing a trial court’s denial of a
motion to suppress evidence obtained pursuant to a warrant,
“[w]e defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining
whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our
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independent judgment.” (People v. Glasser (1995) 11 Cal.4th 354,
362.)
Even if the August 2018 search warrant was not supported
by probable cause, the good faith exception to the exclusionary
rule applies. The main issue the court had with the search
warrant, and what counsel argued, was that Ewing’s affidavit, by
itself, contained insufficient information connecting defendant to
the Gage residence. The facts contained in the affidavit and
provided by Ewing at the suppression hearing established,
however, that defendant was connected to, or at least associated
with, the Gage residence. Specifically, the day after the murder,
defendant was in a traffic accident while driving the Acura; real
time pinging of defendant’s cell phone showed defendant was
approaching the Gage residence; Ewing observed the Acura drive
up to the Gage residence; the only person in the Acura was male;
and the Acura was parked overnight at the Gage residence.
Accordingly, the court did not err in denying the motion.
Defendant also challenges the validity of the August 2018
search warrant because the searches of the cell phones and
related records listed in Ewing’s affidavit were made without a
search warrant. But the motion, the arguments at the
suppression hearing, and Ewing’s testimony, only pertained to
and focused on whether there were sufficient facts linking
defendant to the Gage residence. Defendant never argued below
that the searches of his two cell phones and related records were
invalid. Accordingly, this argument is forfeited. (See People v.
Williams (1999) 20 Cal.4th 119, 130.)
In any event, this contention lacks merit. Ewing’s affidavit
in support of the August 2018 search warrant stated that he
obtained the cell phone records for defendant’s new phone
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number (310-893-3465) and for Gabby’s phone number (213-604-
5505) pursuant to a search warrant. Ewing also obtained a
search warrant for the records associated with defendant’s old
phone number (323-354-5249).6
2. Prosecutorial Misconduct
Defendant contends that the prosecutor improperly
commented on the defense’s failure to call Gabby as a trial
witness, and referred to facts not in evidence by remarking that
Gabby witnessed the shooting, during the prosecutor’s rebuttal
argument.
2.1. Relevant Background
During trial, the defense called two witnesses, Magdalena
Lozano and Denora Virgen. They worked at Las Carinosas Bar on
June 24, 2018. Lozano and Virgen testified that they did not see
defendant and Vasquez have any contact with each other or
argue with each other. They were the only witnesses called by the
defense.
During his closing argument, defense counsel argued that
Baker was the only eyewitness to the murder. Defense counsel
emphasized that the “only direct evidence in this case of who did
6 Anticipating forfeiture, defendant argues that counsel was ineffective
in failing to challenge the warrantless searches for the phones listed in
the August 2018 search warrant. For the reasons just stated, the
searches of the phones and related records listed in the August 2018
search warrant were valid because they were conducted pursuant to
other search warrants. Thus, there was nothing for counsel to have
objected to.
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the shooting is the testimony of Mr. Baker. Everything else is
circumstantial.”
In rebuttal, the prosecutor argued: “Now, the People have
the burden to prove to you beyond a reasonable doubt that the
defendant committed this crime. The defense does not have to
ask one question. They do not have to call one witness. But they
did. [¶] And the person they failed to call is someone who was an
eyewitness to the murder, who is defendant’s girlfriend. … [¶]
Why not her? Why hasn’t she reached out to law enforcement?
Because she was an eyewitness to the murder that her boyfriend
committed. That’s why. She doesn’t want to be found.”
2.2. Analysis
As a preliminary matter, defendant forfeited his claim of
prosecutorial misconduct by failing to object to the challenged
statements during trial. To preserve such a claim for appeal, a
defendant must make a timely and specific objection and request
an admonition. (People v. Clark (2016) 63 Cal.4th 522, 577.)
Otherwise, the argument is reviewable only if an objection would
have been futile or an admonition would not have cured the harm
caused by the misconduct. (Ibid.) In this case, defendant has not
shown that an objection would have been futile or that an
admonition would not have cured the alleged harm caused by the
prosecutor’s statements.
In any event, the California Supreme Court has stated that
it is not improper for a prosecutor to make comments on the state
of the evidence or on the failure of the defense to introduce
material evidence or call logical witnesses. (People v. Hughes
(2002) 27 Cal.4th 287, 372.) Here, Gabby was a logical witness
because she was defendant’s girlfriend, she was at the bar
immediately before the murder where she and defendant got into
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a heated argument, and she left the bar and was last seen in
front of Salgado’s Bakery minutes before the shooting. And from
Salgado’s Bakery, she could have witnessed the shooting. In
addition, despite not answering several calls from defendant after
they had just been in an argument, Gabby placed one call to
defendant seconds after the shooting occurred. Further, in the
months after defendant’s arrest, she communicated with him
concerning the impoundment of the Nissan in Mexico. We also
note that when read in context, there is no indication of improper
burden-shifting as defendant contends. The prosecutor began her
argument by unequivocally telling the jury that the burden of
proof was hers, and that the defense did not need to present any
case.
We now turn to defendant’s contention that his counsel was
ineffective by failing to object to the prosecutor’s statements that
Gabby was an eyewitness to the shooting. To demonstrate that
his right to effective assistance of counsel was violated, a
defendant must show performance below an objective standard of
reasonableness by his attorney, and prejudice sufficient to
establish a reasonable probability he would have obtained a more
favorable result in the absence of counsel’s error. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688, 693–694.) A defendant
whose counsel did not object to alleged prosecutorial misconduct
can argue on appeal that counsel’s inaction violated the
defendant’s right to effective assistance of counsel, but the
appellate record rarely demonstrates that the failure to object
was the result of counsel’s incompetence. (See People v. Salcido
(2008) 44 Cal.4th 93, 152.) Where the record does not show the
reasons for counsel’s failure to object, the conviction must be
14
affirmed unless there could be no satisfactory explanation for the
failure. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
Here, there was no evidence that Gabby saw defendant
shoot Vasquez. But even if the prosecutor’s comments about
Gabby being an eyewitness to the shooting were improper,
defendant has not established ineffective assistance. Defense
counsel could have made a tactical decision not to object to the
prosecutor’s statements, believing an objection would have
highlighted Gabby’s proximity to the location of the shooting and
her failure to contact law enforcement after defendant was
arrested. Indeed, the facts adduced from trial indicate that she
was very close to the location of the shooting. Gabby ran down
the alley behind the bar and she ran along Long Beach
Boulevard. She was also seen on surveillance footage in front of
the bakery that was less than one block from the bar, and the cell
phone records show that Gabby called defendant less than a
minute after the shooting. In sum, defendant has not
demonstrated that counsel’s failure to object shows incompetence.
3. Sentencing Enhancements
Finally, defendant contends that the matter must be
remanded to allow the trial court to exercise its discretion to
dismiss or strike the 25-year firearm enhancement and the five-
year prior felony enhancement. We disagree.
Senate Bill Nos. 620 and 1393 both give trial courts
discretion they previously did not have to impose more lenient
sentences. Senate Bill No. 620, which went into effect on January
1, 2018, amended section 12022.53 (Stats. 2017, ch. 682, § 2) to
allow the trial judge to strike or dismiss enhancements imposed
pursuant to section 12022.53, subdivision (d). Similarly, Senate
Bill No. 1393, which went into effect on January 1, 2019,
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amended sections 667 and 1385 (Stats. 2018, ch. 1013, §§ 1, 2) to
eliminate the statutory prohibition on a trial court's ability to
strike a five-year enhancement imposed pursuant to section 667,
subdivision (a)(1).
As defendant acknowledges, both Senate Bills 620 and
1393 were already in effect when he was sentenced on May 6,
2019. Accordingly, at the time of defendant’s sentencing hearing,
the court presumably was aware of its discretion to strike or
dismiss the 25-year firearm enhancement and the five-year prior
felony enhancement. In support of his position that the court was
unaware of its discretion, defendant points to the court’s silence
on the record on this point. But the presumption that the court is
aware of the governing law applies even on a silent record.
(People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[I]n light of
the presumption on a silent record that the trial court is aware of
the applicable law, including statutory discretion at sentencing,
we cannot presume error where the record does not establish on
its face that the trial court misunderstood the scope of that
discretion.”].)
We also reject defendant’s contention that counsel was
ineffective because he “had nothing to lose” by asking the court to
exercise its discretion to strike the enhancements. Quite simply,
the record is insufficiently developed to address this issue on
direct appeal.
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DISPOSITION
The judgment is affirmed. Upon issuance of the remittitur,
the court shall correct the abstract of judgment to reflect that
defendant was sentenced to 50 years to life as a second-strike
offender, plus 30 years for the enhancements, on count 1, and
that the sentence for count 8 was stayed under section 654. The
court shall send a certified copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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