P. v. Hernandez

Filed 10/19/06 P. v. Hernandez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This case, along with four others we address in separate opinions,[1] arises from a violent street fight between rival gang members.

BACKGROUND

I. Factual History

On August 25, 2002, police officers responded to a report of a fight involving several people.[2] They arrived to find two individuals lying on the ground covered in blood. Both appeared to have multiple stab wounds and other visible injuries, and one of the victims was unresponsive. En route to the hospital, victim Grame Kanongataa said he and his friends were at the Arco gas station when they were attacked by a group of approximately 14 people. Kanongataa appeared to have been drinking alcohol. He refused to answer further questions about the incident and became so combative with hospital staff that he had to be restrained. Kanongataa suffered 10 to 12 puncture wounds during the fight. These were stapled closed and he was discharged from the hospital the same night.

Victim William Rodriguez drifted in and out of consciousness on the way to the hospital, and he appeared to be highly intoxicated. He was mostly unresponsive to questions about the incident but eventually stated that he was cleaning a car windshield when he was attacked by a group of men. At the hospital, exploratory surgery was performed to determine the extent of Rodriguez’s injuries. He had sustained stab wounds and a deep puncture wound to his torso, near the liver, but the internal organs remained undamaged. Rodriguez had also been struck several times with a blunt instrument.

Witnesses interviewed at the scene reported that the victims had been assaulted on the gas station’s sidewalk and then chased into the road by a group of individuals who fled before the police arrived. The assault appeared gang-related. The attackers, who appeared to be members of the Sureño gang, rode in as many as five vehicles. One of these vehicles ran into Kanongataa, knocking him to the ground.

When he was interviewed, Erlin Rodriguez, William’s brother, referred to the attackers as “ ‘scraps,’ “ a derogatory name for members of the Sureño gang, and he admitted he and William were Norteño gang members. Erlin said he had yelled a derogatory statement about the Sureño gang to some passing cars. These cars stopped and the attackers emerged, yelling derogatory remarks about Norteños and running toward Erlin. As he fled, pursued by appellant Antonio Hernandez, he yelled to William and Kanongataa for help. Erlin witnessed the ensuing fight. He told police one of the attackers hit William with an “ ‘ASP’ style baton,’ “ and the assailants hit and kicked William numerous types after he fell to the ground.

Later that night, Hernandez and other individuals brought Luis Santana to the hospital for treatment of a stab wound to Santana’s arm. Police officers who reported to the hospital noticed several of these individuals had blood stains on their clothing, and they were not forthcoming in explaining what had happened. Santana initially told police he had been at a wedding reception, where he became extremely intoxicated. He did not know where he went afterward but believed he cut his arm when he fell onto a piece of glass. Later, on September 5, 2002, Santana acknowledged to police that he had been involved in the altercation, but he claimed he was the one who was attacked. He admitted striking William Rodriguez with a black stick but said he did so only after Rodriguez stabbed him. When Hernandez was interviewed on September 12 and 13, 2002, he also claimed the victims provoked the fight. Though he admitted being a gang member, Hernandez denied assaulting or stabbing anyone, claiming he had only watched the fight and chased one of the victims. He refused to identify anyone except Santana.

A female witness who had been riding in Santana’s car said many of the suspects were at a wedding reception earlier that evening, and afterward she went with Santana and Hernandez to Benjamin Moreno’s house. Many Sureño gang members were present here. Around 1:00 a.m., four to five carloads of people left to go to another location. Santana drove his Volkswagen, taking Hernandez, the witness and another female passenger. She also recalled that Martin Mesa drove his white Ford Taurus and took several passengers. While driving, the group encountered the victims at a gas station, and gang-related slurs were exchanged. Then, the men exited their cars and attacked the victims. The witness believed someone in her group may have passed around knives. Although she initially said Santana had cut his arm on a piece of glass after the wedding reception, the witness later said she believed he was accidentally stabbed by one of his fellow gang members. She identified Jose Gomez as having been at Moreno’s house, and she identified Santana, Moreno, Cesar Ramirez and Sergio Zarate as having been involved in the assault.

Another female witness (referred to as E.G.) identified the same individuals plus Hernandez, Mesa, Jesus Flores and Mauricio Cuevas. Although she did not recall who had stabbed the victims, she knew Cuevas and Moreno were carrying small knives before the assault. This witness saw Santana and Hernandez kick Rodriguez when he was lying on the ground, and she also saw Santana strike Rodriguez with a stick when he was down. After the incident, Santana told E.G. to tell police he had cut his arm on a piece of glass, and Hernandez told her, “ ‘You better not talk with the cops.’ “ At one point during the evening, E.G. noticed that all of Hernandez’s knuckles were bleeding.

During the investigation, police learned that E.G. had been in contact with Hernandez a few times since the night of the assault. Each time he saw her, Hernandez asked what she planned to tell police about the assault. Once, he said, “ ‘You know what happens to people when they testify,’ “ and “ ‘You know what happens to someone who talks.’ “ E.G. understood these comments to be threats and believed she could be physically harmed if she were seen as a “ ‘snitch.’ “

In October 2003, after E.G. had spoken with the police, Hernandez confronted her in a convenience store. Referring to her upcoming grand jury testimony, Hernandez told her, “ ‘What goes around comes around,’ “ a comment she perceived as a threat. As Hernandez turned to leave the store, his companion, Jorge Silva, started laughing. Silva raised his shirt, exposing the butt end of a pistol visible above the waistline of his pants. Silva said nothing but grabbed the gun and raised it slightly, continuing to laugh.

II. Procedural History

On December 15, 2003, the grand jury returned an indictment against 14 defendants. Eventually, after motions and changes of plea resulted in the early resolution of charges against some defendants, a fourth amended indictment was filed against only six defendants: Cuevas, Delgado, Gomez, Hernandez, Mesa and Santana. Count I charged them all with the attempted premeditated murder of William Rodriguez (Pen. Code, §§ 664, subd. (a), 187, subd. (a));[3] count II charged them with the attempted premeditated murder of Grame Kanongataa; count III charged them with assault with a deadly weapon against Rodriguez (§ 245, subd. (a)(1)); counts IV and V charged them with assault with a deadly weapon against Kanongataa (count IV referring to the use of knives and baton-type weapons, and count V referring to use of a motor vehicle); count VI charged them with assault with a deadly weapon against Erlin Rodriguez; count VII charged them with participation in a street gang (§ 186.22, subd. (a)); and count VIII charged Santana with threatening a witness (§ 136.1, subd. (c)(1)). The indictment also alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and commission of crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)).[4] Hernandez filed a motion to dismiss the indictment. (§ 995). On May 14, 2004, the trial court granted this motion as to one count (alleging witness intimidation), but denied it as to all other counts, finding sufficient evidence presented to the grand jury linked him to the crimes charged.

On May 28, 2004, the court severed the 10 remaining cases into two groups of five defendants. In “Group A,” the court placed Bejar, Santana, Gomez, Hernandez and Cuevas. “Group B” consisted of Zarate, Delgado, Ramirez, Mesa and Gonzalez. Later, when only six defendants remained in the two groups, the court granted the prosecution’s motion for consolidation and consolidated the six cases for trial. Hernandez’s appointed counsel asked to be released from the case on July 26, 2004, due to medical reasons. He was replaced immediately by another attorney, who was hired by Hernandez’s family. Although this new attorney was a law partner of the attorney who represented codefendant Martin Mesa, Hernandez formally waived any conflict of interest associated with the representation.

After a preliminary hearing, Hernandez was charged in a second case with threatening witness E.G. (§ 136.1, subd. (c)(1)) and participating in a criminal street gang (§ 186.22, subd. (a)). The information also alleged an enhancement for committing a crime to benefit a gang. (§ 186.22, subd. (b)(1).) This matter was set to trail the trial in the group assault case.

The trial court denied an in limine motion to exclude all codefendant statements pursuant to Crawford v. Washington (2004) 541 U.S. 36; however, the court ordered the statements of certain participants redacted pursuant to People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123. Hernandez moved to exclude his two statements to police for failure to comply with Miranda v. Arizona (1966) 384 U.S. 436. Based on testimony from detectives, the court concluded the interviews of Hernandez were voluntary and non-custodial, and the court denied his motion to suppress.

On October 13, 2004, Hernandez waived his rights and pleaded no contest to one charge of attempted murder (§§ 187, 664) and one charge of assault with a deadly weapon (§ 245, subd. (a)(1)), and he admitted enhancements for personally causing great bodily injury (§ 12022.7) and for committing crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)). Less than a week later, an amended indictment was filed in the trailing case, and Hernandez pleaded no contest to a charge of making terrorist threats (§ 422) and admitted a gang-related enhancement. In the first plea agreement, Hernandez acknowledged he could be sentenced to a maximum of 26 years imprisonment, and in the second he acknowledged he could be sentenced to a maximum of 6 years imprisonment.

The probation department recommended that Hernandez be sentenced to upper terms on all charges, for a total of over 29 years imprisonment. The prosecutor also urged the court to impose the maximum punishment, based on Hernandez’s criminal record, gang activities, violent conduct and efforts to intimidate witnesses. Instead, finding the aggravating and mitigating factors to be in balance, the court sentenced Hernandez to middle terms for all three offenses and ordered the sentences for assault and making terrorist threats to run concurrently with the attempted murder sentence. The court imposed great bodily injury and gang enhancements as to the attempted murder count but stayed these enhancements as to the other counts. As a result, Hernandez received a sentence of 20 years imprisonment for all charges

DISCUSSION

Hernandez’s appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. We have reviewed the entire record, including sealed grand jury transcripts available only to the court, and we agree with counsel’s assessment that no issue warrants further briefing.

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] People v. Cuevas (Oct. 19, 2006, A109146), People v. Delgado (Oct. 19, 2006, A108852), People v. Gomez (Oct. 19, 2006, A110353) and People v. Mesa (Oct. 19, 2006, A109157).

[2] In light of the plea, our recitation of facts regarding the incident derives from the probation report and, to some extent, grand jury testimony. (See People v. Barasa (2002) 103 Cal.App.4th 287, 290, fn. 1.)

[3] All statutory references are to the Penal Code.

[4] An additional enhancement to count I was alleged against Santana only for weapons use. (§ 12022, subd. (b)(1).)