Filed 2/10/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed.

Alex Green, 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, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found Ronald Hernandez guilty of attempted murder and other crimes. On appeal, Hernandez contends that the prosecutor committed misconduct by referring to evidence limited by the trial court to his codefendants and that his trial counsel provided ineffective assistance by failing to object to same. We reject these contentions.

BACKGROUND

I. The attempted murder

Hernandez was jointly tried before a jury with fellow Easy Rider gang members Alberto Rafael Rivera and Dario Alfaro for attempted murder and shooting at an occupied vehicle.[1] Hernandez’s gang monikers were Stranger and Muerto, Rivera’s gang moniker was Drowzy, and Alfaro’s gang moniker was Lil Boy.

The victim testified that on July 13, 2017, at 2:20 p.m., he was driving his Ford Mustang to a friend’s house. He was in the area of Washington Boulevard and Westmoreland when he heard someone yell. Assuming that someone he knew had called to him, he made a U-turn and stopped in front of an apartment building where three men had been standing, two of whom the victim identified as Hernandez and Rivera. The victim recognized Hernandez because they had gone to school together. Hernandez and Rivera walked up to the victim, who asked, “What’s up?” Hernandez and Rivera threw gang signs and replied, “Riders.” The victim did not associate with gangs, so he left. Rivera then threw something at the victim’s car.

Soon thereafter, as the victim was taking a shortcut through a nearby car wash, he saw Hernandez and Rivera in a Mercedes. Hernandez was driving, and Rivera was the front passenger. The victim could not tell if anyone else was in the car. The Mercedes made a U-turn to follow the victim. The victim saw Rivera reach down towards his feet. As the Mercedes got closer, the victim sped away. When the victim turned onto another street, he heard his pursuers revving the engine, and then the Mercedes ran into the victim’s car. Multiple gunshots struck the victim’s car.

A witness saw the victim’s Mustang speed up from behind him before the Mercedes crashed into it. Someone fired a revolver three to four times from the rear passenger side of the Mercedes. However, the witness could not tell how many people were in the Mercedes and saw none of their faces.

Around the time of these events, at 2:32 p.m., Alfaro texted his girlfriend that if she received “a jail call[,] answer.” He later told her that he, Hernandez, and another individual had an altercation with someone whom they chased and crashed into. He said they were in Hernandez’s car, and shots were fired. The day after the shooting, Alfaro told his girlfriend in text messages that he had to find the gun, which he called the “bitch,” and move it.[2] He was going to look for the gun near Hernandez’s house, and he was waiting for Drowzy to get back to him. Alfaro also told his girlfriend that they acquired the gun three days before the shooting.

The day before the shooting, Rivera had complained to Alfaro in text messages that Hernandez was keeping the gun from him. Easy Rider gang member and shot caller Osbaldo Chavez, whose gang moniker was Kasper, resolved the dispute by designating Alfaro to be “on point,” meaning in charge of the gun. Kasper instructed that the gun was for emergencies only and that Alfaro should keep it unless either Kasper or “Sparks” (another Easy Rider) asked for it. Alfaro confirmed that he had the gun. Kasper also told Hernandez that Alfaro was in charge of the gun.

The night of the shooting, Kasper asked Alfaro if the “girl is cool.” Alfaro responded that he had moved “her to a better spot me and ‘Strange’ know.”

The day after the shooting, Rivera told Alfaro via Facebook that Stranger had been arrested, and “someone followed us and snitched.”

II. The defense

Hernandez testified in his own defense.[3] He admitted having the gun in the days preceding the shooting but claimed that he gave it to Alfaro on July 12, 2017, the morning before the shooting. On the day of the shooting, Hernandez said he was hanging out with Alfaro and Rivera. However, Hernandez testified he did not witness the verbal exchange Alfaro and Rivera had with the victim. Hernandez, Alfaro, and Rivera got into Hernandez’s car to go to the park. Hernandez drove, Alfaro was in the backseat, and Rivera was the front seat passenger. When they happened upon the victim, Rivera said that he was going to “dump on” him and pulled out a gun. Up to that moment, Hernandez asserted he did not know there was a gun in the car. Alfaro said that he wanted to be the one to shoot the victim. Although Hernandez supposedly tried to drive in a manner to avoid any confrontation, he claimed to have accidentally crashed into the victim’s car, and Rivera shot at the victim. Hernandez admitted he was an Easy Rider gang member.

III. Verdict and sentence

The jury found Hernandez guilty of willful, deliberate, and premeditated attempted murder (Pen. Code,[4] §§ 664, subd. (a), 187, subd. (a); count 1), shooting at an occupied motor vehicle (§ 246; count 3), and vandalism by graffiti (§ 594, subd. (a); count 4).[5] As to counts 1 and 3, the jury found true gang (§ 186.22, subd. (b)) and principal gun use (§ 12022.53, subds. (b), (c) & (e)(1)) allegations.

On December 11, 2019, the trial court sentenced Hernandez on count 1 to life with a minimum parole eligibility of seven years plus 20 years for the gun enhancement (§ 12022.53, subds. (c) & (e)). On count 4, the trial court sentenced Hernandez to two years. Under section 1385, the trial court dismissed the firearm enhancements as to count 3. The trial court imposed but stayed sentences on the remaining count and enhancements.

DISCUSSION

Hernandez contends that the prosecutor committed misconduct by violating the trial court’s instruction limiting evidence admitted only against his codefendants.[6] We disagree.

A prosecutor’s intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor’s conduct that does not render a criminal trial fundamentally unfair may be prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) When the claim focuses on the prosecutor’s comments before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Ibid.)

The prosecutor’s conduct at issue concerns comments she made before the jury about the text messages. That is, Alfaro’s girlfriend testified about a screen shot he sent to her. The screen shot was of a text message from Rivera to Alfaro stating that Hernandez, who was referred to as Stranger, got “locked up.” The screen shot was shown to the jury. It read, “Strangers got locked up yesterday. They took his car, raided his pad and all. Someone followed us and snitched.” Alfaro replied, “Naw serio. How’s the baby? Call me.” The trial court instructed the jury that this evidence was being offered only to explain statements attributed to Alfaro in the text message, and the jury was not to assume that anything in the message was true. Thereafter, during the investigating officer’s testimony, the prosecutor introduced text messages between Kasper and defendants. In one, Kasper texted Alfaro the day before the shooting that Alfaro was “on point,” meaning Alfaro was in charge of the gun.

The trial court repeatedly told the jury that such evidence was being admitted only against the defendant making the statement. Also, the trial court’s final instructions included the admonition that the trial court had “instructed you during the trial that certain evidence was admitted only against certain defendants. You must not consider that evidence against any other defendant.” It also instructed the jury on adoptive admissions and that if the requirements of an adoptive admission had not been met, the jury “must not consider either the statement or the defendant’s response for any purpose” and must not “consider this evidence in determining the guilt of any other defendant.”

In her closing argument, the prosecutor referred to Alfaro’s screen shot and text to his girlfriend about Stranger getting locked up and to a text Alfaro sent to Kasper that the gun was moved to a “spot me and Strange know.” The prosecutor said the texts showed “Alfaro knows that Stranger is just as involved in the crime as he is. [¶] He is worried about all of these things, about Stranger getting picked up, about Stranger’s phone being found by the police. [¶] Mr. Rivera is worried about Stranger getting picked up because they both know that Stranger’s just as culpable as they are because if he were not culpable then they wouldn’t have anything to worry about, but his culpability is attached to their culpability.” There was no objection to this argument.

In her rebuttal argument, the prosecutor returned to the text messages in the context of discussing why Hernandez’s attempts to deny culpability were implausible. She argued that accepting his testimony would require the jury to disregard the victim’s testimony, Alfaro’s statements to his girlfriend, and “the text messages where the two other defendants talk about Stranger which shows that they know Stranger is just as culpable as them.” At this point, Rivera’s counsel—but not Hernandez’s—objected that the statements had been limited. The trial court immediately affirmed that the statements “were limited to the two people involved.” The prosecutor continued, “You cannot ignore that evidence. You cannot ignore that other evidence because it all corroborates each other.”

When the prosecutor finished, the trial court reminded the jury about “instruction 304” and that certain evidence was admitted only against certain defendants and was not to be considered against any other defendant. “And that is the rule that you must carry through throughout your deliberations.”

Hernandez contends that the prosecutor violated the trial court’s limiting instructions by arguing that his codefendants’ statements in the text messages evidenced Hernandez’s guilt. However, we cannot agree that any error during the prosecutor’s argument requires reversal of the judgment. Any error was harmless because it is not reasonably likely the jury applied any improper statements in an objectionable manner. (See, e.g., People v. Centeno (2014) 60 Cal.4th 659, 667.)

First, analysis of the text messages shows they concern what Hernandez did after the shooting: hide the gun. They do not directly speak to what Hernandez knew and did before and during the shooting. The text messages thus do not plainly contradict his defense, which was that he did not pursue the victim and did not know about the gun until Rivera pulled it out. The prosecutor’s argument therefore would not have misled the jury about what the text messages actually said. Arguably, however, the prosecutor suggested that the text messages showed what Hernandez did before the shooting, i.e., Alfaro and Rivera were concerned about Hernandez’s arrest and the confiscation of Hernandez’s phone because they knew that Hernandez was just as culpable as they. Even so, the gist of the prosecutor’s argument was about what Alfaro and Rivera knew or believed rather than what Hernandez did.

Second, the prosecutor’s comments were fairly isolated and brief, and made, as we have said, initially in the context of argument about what codefendants thought and later in the context of urging the jury to consider the totality of the evidence. As to the totality of that evidence, it was compelling as to Hernandez’s guilt. Hernandez did not deny key points: that he was a gang member, that he gave the gun to Alfaro the day before the shooting, and that he was in the car with fellow gang members Alfaro and Rivera. His story—he was going to the park when he happened on the victim, and, on realizing that Alfaro and Rivera were going to shoot the victim, tried to drive away—was contradicted by the victim, an independent witness, and video from a nearby bus.

Finally, the trial court repeatedly instructed the jury—when the evidence was introduced and in its closing instructions—about the limited purpose for which the evidence was admitted. Jurors are presumed to understand and to follow instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

As we have found any error in the prosecutor’s argument nonprejudicial, we similarly reject Hernandez’s related contention that trial counsel rendered ineffective assistance, as that contention requires a showing counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and prejudice. (See generally Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.

[1] We affirmed the judgment of conviction as to Rivera in People v. Rivera (Aug. 20, 2019, B297551) [nonpub. opn.].

[2] Law enforcement never recovered the gun.

[3] A gang expert also testified for the defense.

[4] All further statutory references are to the Penal Code.

[5] The jury acquitted Hernandez of assault with a deadly weapon (§ 245, subd. (a)(1); count 2). The jury found Rivera and Alfaro guilty of the same crimes and allegations, except Rivera was not charged with vandalism.

[6] As a preliminary matter, Hernandez has arguably forfeited his claim of prosecutorial misconduct by failing to object below. (See generally People v. Clark (2016) 63 Cal.4th 522, 577.) However, Rivera’s counsel did object, albeit only to the rebuttal argument, at which time the trial court immediately instructed the jury that the evidence was being admitted for a limited purpose. We address the merits notwithstanding any potential forfeiture issue.