P. v. Hernandez

Filed 3/24/06 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Juan Hernandez pled no contest to voluntary manslaughter, admitted the offense was a serious offense committed to benefit a criminal street gang, and admitted a principal was armed in the commission of the offense. (Pen. Code, §§ 192, subd. (a), 186.22, subd. (b)(1)(B), 12022, subd. (a)(1).)^[1] He was sentenced to the midterm of six years for the manslaughter, five years for the gang enhancement, and one year for the firearm enhancement, for a total sentence of 12 years.

He argues his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Even though he pled to the offense, Hernandez asserts his involvement was minimal and he should have received a mitigated term or probation. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Jorge Lopez was killed by a single gunshot wound to the chest. Lopez was having a party in the alley behind his father's restaurant with some of his friends. Lopez and/or his friends may, or may not, have been members of, or associated with, a Norteno affiliated gang.

The gunshot was the result of a confrontation between the Lopez group and members of a Sureno affiliated gang, Original Gangsters Surenos (OGS). Apparently, an OGS member, Rolando Lua, also known as Smiley, walked through the alley. Stares turned into gestures until the OGS member was offended. Since he was alone, he proceeded directly to Hernandez's house, an OGS hangout. There he met Hernandez and others and told them what had occurred. Smiley entered Hernandez's car and the group left to seek reinforcements.

Numerous OGS members, including Hernandez, proceeded to the alley with the intent of confronting the Lopez group. Exactly what happened in the alley is unclear. There were numerous witnesses, and the accounts differed in some respects. At least three, and possibly four, cars were driven by OGS members to the scene. Hernandez drove one of the vehicles.

The two groups began yelling and gesturing at each other. Lopez had a knife in his hand, perhaps because he was cooking. At least two, and possibly three, OGS members were armed with firearms. Lopez's father came into the alley and tried to defuse the situation. He initially met with some success, with at least one OGS member telling the others not to hurt Lopez's father, and at least one gun being put back into the waistband of the person carrying it. Then another group of OGS members came running down the alley. Hernandez may have been one of these individuals. One witness placed Hernandez at the scene â€