P. v. Hernandez

Filed 2/5/07  P. v. Hernandez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

            Defendant Israel Hernandez was convicted after jury trial of attempted murder (Pen. Code, §§ 664, 187),[1] shooting at an occupied motor vehicle (§ 246), and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).  The jury found true allegations that defendant personally and intentionally discharged a firearm in the commission of the attempted murder (§ 12022.53, subd. (c)), and that all the offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)).  The trial court sentenced defendant to the indeterminate term of 15 years to life consecutive to the determinate term of eight years.

            On appeal, defendant contends that the trial court prejudicially erred in (1) instructing the jury with CALJIC No. 1.22; (2) instructing the jury with CALJIC No. 2.50; (3) failing to instruct the jury on negligent discharging of a firearm (§ 246.3) as a lesser included offense of shooting at an occupied motor vehicle; (4) refusing his co-defendant's request to instruct the jury on accomplice testimony; and (5) allowing the gang expert to testify regarding the motive for the offenses.  Defendant also contends that there was sentencing error.  We disagree with all but the last contention, and we remand the matter for resentencing on count 3, the assault count.

BACKGROUND

            Defendant was charged by amended information[2] with attempted murder (§§ 664, 187; count 1), shooting at an occupied motor vehicle (§ 246; count 2), and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a) (1); count 3).  The information further alleged that defendant personally discharged a firearm in the commission of the attempted murder (§ 12022.53, subd. (c)), and that all three offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)).

            The Prosecution's Case

The December 28, 2003 incident

            Ryan Vaccarezza lived on Church Street between First and Second Streets in Gilroy on Sunday, December 28, 2003.  Around 1:30 p.m. that day, as she was standing at the trunk of her car in her driveway, she heard three or four rapid gunshots.  She turned and saw the back end of a cream-colored older model car with a dark roof that had passed her heading north on Church Street.  When she went inside a few minutes later she found a small hole in her living room wall, which contained a piece of metal, as well as a hole in the bottom of her front window and a tear in its paper shade.  She later saw a chunk missing from the outside stucco of her house just north of her front porch, as if something had hit and ricocheted off it; an expelled bullet on the front porch of the house just to the north of her house; and damage to the front window of the house two doors to the south of her house.

             Tami Pipkin was driving westbound on Welburn Avenue in Gilroy on December  28, 2003, when she saw a car speed past her in the wrong side of the road.  The car was a beige older model with a different color top, with only one person inside it.  The car continued in the wrong lane to a four-way stop at Wayland, passing four cars that were waiting at the stop sign.  It then turned north onto Wayland.  A dark car with at least three Hispanic males in it sped by her in the bike lane to the right of her and the other stopped cars, and then followed the first car onto Wayland.  Pipkin decided to follow the two cars, but when she was finally able to turn onto Wayland she did not see either car.  After she turned onto Arnold, the dark car reappeared in front of her and turned right onto Hanna.  Pipkin could not get through to 911 on her cell phone, so she followed the car until it turned into an apartment complex on Church Street near First Street and stopped.  She went home, called 911,[3] and gave the operator the car's license number:  4EIH910.  

            Milford West lived on Sherwood Drive near Wayland in Gilroy on December 28, 2003.  As he was standing in his driveway that day, he saw two cars speeding eastbound on Wayland.  The first car was beige and had one Hispanic male inside.  The second car was dark and had at least three Hispanic males inside.  Shortly thereafter, West saw the two cars doing the same thing again, but this time he saw them turn right onto Carmel.  About three or four minutes later, he saw the beige car again.  It parked in front of the house next door and the driver got out.  West got a partial license plate number of the beige car and called the police.  While West was still on the phone he heard two shots coming from Wayland.  The driver jumped back into the beige car and drove off.

            Dorothy Farias lived on Wayland Lane on December 28, 2003, between Welburn and Sherwood.  She was inside her house that day when she heard the sound of speeding cars.  She looked out a window and saw two cars pass in front of her house and turn east onto Sherwood.  The first car was a tan older model and the second car was darker and smaller.  A few minutes later she saw the same two cars drive by again.  The tan car turned at Sherwood again but the dark car continued going straight.  A person standing across the street near the corner pulled out a gun, shot twice at the dark car as it drove by, and then ran up Wayland. 

            The police arrived at the apartment complex on Church Street at 2:06 p.m.  Officer Brandon Richards saw four men drinking Heineken beer in the complex parking lot: Juan Hernandez, Jose Toro, Roland Lopez, and defendant.  Richards found a black Ford Taurus with license plate number 4EIH910 in the complex's parking lot.  He checked and found that the car's engine was warm.  The car was locked and none of the four men had keys to it.  The car was impounded and towed to the police department.  While officers were still at the complex, a Cadillac driven by Gerado Ortiz pulled into the parking lot.  Ortiz, who is a member of the Eighth Street Sureno gang, was also interviewed by police.

            Officers later found an unloaded revolver underneath the front passenger seat of the impounded Taurus.  Officers also recovered a bullet that was lodged in the inside wall of Vaccarezza's house, a bullet that was lying on the porch of the house to the north of her house, and the metal jacket of another bullet from in front of the stairway to the front porch of the house two doors to the south of her house.  The bullet holes in Vaccarezza's house appeared to be at or a little above waist level.  The bullet from Vaccarezza's house and the metal jacket were determined by a criminalist to have been fired by the revolver recovered from the impounded Taurus.  The bullet found on the front porch next door was too damaged for the criminalist to make a conclusive identification, but it did have the same characteristics as the other two recovered bullets.

            The light-colored car involved in the reported chase was located and searched on January 9, 2004.  The car is owned by Ricardo Gonzalez, Jr., who is a member of a Norteno gang that is a rival of the Eighth Street Sureno gang.  The car did not have any bullet damage, and no broken glass was found inside the car.  However, one of the windows of the car was different than the others, so it appeared to have been replaced.  

            Roland Lopez testified that the Taurus that was impounded on the afternoon of December 28, 2003, belonged to his mother.  Although he does not have a driver's license, he often drove the car.  Earlier that day, he drove the car to mass and then met Juan Hernandez and defendant at defendant's apartment on Church Street.  Juan Hernandez drove the three of them from the apartment to a liquor store, where they bought a 12-pack of Heineken beer, and then back to the apartment, where they drank the beer.  When the beer was gone, they drove back to the liquor store and bought another 12-pack.  They then drove around for awhile.

            Juan Hernandez drove the car, Lopez sat in the front passenger seat, and defendant sat in the back behind Hernandez.  When they were near Sixth and Eigelberry streets, Lopez saw a Hispanic man wearing a red shirt standing on the corner.  Defendant said, â€