People v. Hernandez CA2/5 ( 2021 )

Filed 4/21/21 P. v. Hernandez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B301861
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA089685)
v.
OSCAR HERNANDEZ,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Cynthia L. Ulfig, Judge. Affirmed, as
modified, with instructions.
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,
Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, Marc A. Kohm,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
The jury found defendant and appellant Oscar
Hernandez guilty of first degree murder (Pen. Code, § 187,
subd. (a) [count 1])1 and second degree murder of a human
fetus (§ 187, subd. (a) [count 2]). With respect to both
counts, the jury found true the allegations that Hernandez
discharged a firearm, causing great bodily injury and death.
(§ 12022.53, subd. (d).) As to count 1, the jury found true the
allegation that the murder was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)(C)), and the
special circumstances that Hernandez committed multiple
murders (§ 190.2, subd. (a)(3)) and committed the murder in
count 1 while he was an active gang member to further the
activities of the gang (§ 190.2, subd. (a)(22)).2
At the sentencing hearing, Hernandez admitted to
having served four prior prison terms, two of which he
served concurrently. The trial court sentenced Hernandez to
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The jury found not true the allegation in count 1 that
the victim was killed because she was a witness to a crime
(§ 190.2, subd. (a)(10)), and also found not true the allegation
that the murder of the fetus was committed to benefit a
criminal street gang in count 2 (§ 186.22, subd. (b)(1)(C)).
2
life without parole in count 1, and a consecutive 15 years to
life in count 2, plus 25 years to life for the firearm use
enhancement. The court imposed three 1-year terms for the
prior prison term enhancements.
On appeal, Hernandez contends that (1) he was
deprived of his constitutional right to due process because
the jury was not instructed regarding third party liability;
(2) there was insufficient evidence to support the gang
enhancement and gang special circumstance; (3) his
conviction under an implied malice murder theory of liability
for murdering a fetus violates the Eighth Amendment; and
(4) the three 1-year prior prison term enhancements must be
stricken pursuant to amendments effected by Senate Bill No.
136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People
agree that the prior prison term enhancements must be
stricken, but challenge Hernandez’s other contentions.
We order the three section 667.5, subdivision (b) prior
prison term enhancements stricken, but otherwise affirm the
judgment.
FACTS3
In July of 2011, the victim, who was a frequent
methamphetamine user, lived in the “blue house”4 with
3 The facts are recounted as presented by the
prosecution. Hernandez did not proffer evidence in his
defense.
3
approximately eight other methamphetamine users, in
territory claimed by the Humphrey Boys criminal street
gang. She was 18 weeks pregnant when she was killed. The
blue house was a hub of Humphrey Boys activity, and was
located across from Humphrey Park, which was claimed by
the gang as well. The victim was murdered in a vacant
house two houses away from the blue house, also in
Humphrey Boys territory. The victim was killed by a single,
close-range gunshot to the head at approximately 11:00 in
the morning on July 13, 2011. The fetus died as a result of
her death. On the same day, at approximately 4:00 p.m.,
while the anti-gang Summer Night Lights event was
occurring in Humphrey Park, the vacant house in which the
victim was killed was set on fire, and the victim’s body was
burned beyond recognition.
The Summer Night Lights event was intended to be a
“gang intervention,” where gang members could come out of
“gang dress” and interact positively with the community and
police. Summer Night Lights was also aimed at keeping
kids out of gangs. People from the community would come to
the park with their children to eat and play games. Summer
Night Lights took place between 4:00 p.m. and 11:00 p.m.
every Wednesday through Saturday evening in June and
July. The event required a heightened police presence, and
police ensured that gang members did not enter Humphrey
Park while dressed in gang clothing. Police officers
4 The house was referred to the blue house throughout
trial because it was painted blue at the time of the murder.
4
monitoring Summer Night Lights left the event to respond to
the murder and fire.
At the time of the murder, Hernandez was a “soldier”
for the Humphrey Boys, which meant that he was just below
“shot-callers” in the gang hierarchy. Soldiers were
responsible for carrying out the shot-callers’ orders.
Soldiers’ duties included committing crimes and deciding
who was allowed to remain in Humphrey Boys territory and
who was not. If a soldier ordered someone to leave and they
did not, there would be repercussions. Hernandez patrolled
the Humphrey Boys’ territory to “[s]ee what’s crackin’ in
every house” for the gang. He was at the blue house every
day “do[ing] [his] little rounds.”
Humphrey Boys members rise up the ranks in the gang
by committing crimes of escalating seriousness. Members
who were willing to threaten and kill had higher gang status
than those who committed lesser crimes such as “tagging”
the area with graffiti. Respect was everything within the
gang, and respect was gained by instilling fear in the
community. Lighting the house that contained the victim’s
body on fire while Summer Night Lights was occurring
across the street would send a strong message to the
community that the police were unable to protect them from
the Humphrey Boys. When members of the community were
frightened, the gang could operate with impunity, because
people were unlikely to report crimes or testify as witnesses.
The Humphrey Boys also punished “snitching”—
reporting crimes, testifying, or simply talking to police
5
officers—with death. In February of 2011, the victim had
reported a crime to the police, and someone was arrested as
a result.5
The Humphrey Boys would tolerate a member of
another gang living in their territory, as long as the
individual did not publicly promote his own gang. A member
of another gang could sell drugs in Humphrey Boys territory
if they sought and obtained permission first. In such a
situation, the revenue from the drug sales would be
considered part of the Humphrey Boys’ revenue. Drug
dealers had to negotiate the type of drug they would sell and
estimate their profits. They were required to pay a
percentage of sales or “taxes” based on that estimate. In
return, they received protection from the Humphrey Boys. A
dealer who failed to pay taxes to the gang would face
retribution, which could include death. The Humphrey Boys
paid part of their drug revenue to the Mexican Mafia, which
monitors Hispanic gangs. If the Humphrey Boys failed to
pay, the Mexican Mafia would place an unconditional “green
light” or “hit to kill” on the gang.
When a buyer failed to pay a drug dealer, the
Humphrey Boys would discipline the buyer as part of their
protection agreement with the dealer. If a drug dealer
wanted to kill someone, the dealer had to seek permission, or
face being killed by the gang themselves. Ultimately, the
5 The parties stipulated that Hernandez was not the
person who was arrested as a result of the victim’s police
report.
6
Humphrey Boys would commit the murder if they deemed it
necessary. The Humphrey Boys preferred to “handle their
business on their own. They would not have somebody from
another gang murder somebody in their own territory. That
could start chaos [and lead to a gang war].”
Until approximately four days before the murder, R.E.
and his family lived in the house where the victim was
killed, which was in Humphrey Boys territory, two houses
away from the blue house. R.E. was a Pacoima Crazy Boys
gang member. He sold crystal methamphetamine from his
family’s home. R.E. knew Hernandez and was aware that
Hernandez was frequently at the blue house. After R.E.’s
family moved out, he continued to return to the house, which
was vacant.6
On the morning of the murder, R.E. returned to the
vacant house to get the mail. Hernandez approached him
and asked where the methamphetamine was. R.E. offered to
smoke methamphetamine with Hernandez, and Hernandez
accepted. As they were starting to go inside, Hernandez told
R.E. to hold on because he was going to get someone.
Hernandez ran toward the blue house and R.E. went into the
vacant house. Hernandez returned with the victim a few
minutes later. R.E. was familiar with the victim because he
6 R.E. testified that he sold drugs to J.G., who lived in
a house next door to the blue house, and to M.D., who lived
in the blue house, but denied that he sold drugs to anyone
else who lived in the blue house. R.E. claimed that he never
asked for the Humphrey Boys’ permission to sell drugs.
7
had seen her at the blue house. All three of them went into
the vacant house and smoked methamphetamine together.
After they had passed a pipe around a few times, R.E.
said he needed to go. Hernandez asked if he could get a ride,
and R.E. said yes, but that he was in a hurry. R.E. walked
outside to wait while Hernandez and the victim finished
smoking. R.E. noticed three people standing outside the
blue house looking in his direction. R.E. started walking
toward his car. He heard a single gunshot. Hernandez ran
out of the house and got into R.E.’s car.
When he entered the car, Hernandez was holding
something in his pocket that R.E. believed to be a gun. As
they were driving away, R.E. asked what the noise was and
where the victim had gone. Hernandez said he shot her, but
did not explain why. He just said, “Fuck that bitch.” R.E.
dropped Hernandez off on the other side of Humphrey Park.
Hernandez warned R.E. not to return to the vacant house.
R.E. never went back to the house and never saw Hernandez
again.
M.D. and M.R. lived in the blue house with the victim.
Sometime in the week before the murder, M.D., who was
also a Humphrey Boys gang member, argued with
Hernandez over a gun.7 M.D. took the gun away from
7 The gun was marked at trial as People’s Exhibit 3,
and a photograph of the gun was marked as People’s Exhibit
59. M.D. identified both exhibits as the gun about which he
argued with Hernandez.
8
Hernandez because he was young and had a temper, but
Hernandez took it back.
A few nights before the murder, M.D. and M.R. bought
drugs from R.E. at his house. R.E. was angry at the victim,
and told M.D. “that bitch owed him money.” He also called
the victim a whore and said that he did not like her. R.E.
told them the victim had been selling drugs for him.
The night before the murder, the victim told M.R. that
she owed R.E. around $400, and that she planned to repay
him.
C.H. came to the blue house to smoke
methamphetamine the night before the murder, and stayed
there overnight. A man came to the blue house that night,
“talked shit” to the victim, and called her a bitch. C.H. made
the man stop speaking to the victim that way because it was
disrespectful.
S.C. lived in the blue house. The night before the
murder, S.C. saw Hernandez talking with a shot-caller for
the Humphrey Boys, known by the moniker “Spanky” or
“Spanks,” who also worked for Mexican Mafia affiliates. As
Spanky was leaving, he told the victim goodbye and then
laughed. S.C. thought it was strange that the shot-caller
spoke to the victim because he was supposedly angry with
her for snitching. The victim had also stolen a lot of
“profiles” (personal information used to commit fraud) from
the shot-caller. Later that night, S.C. saw Hernandez
9
walking around the blue house with a gun. She had seen
Hernandez with the same gun two days earlier.8
When M.R. woke up on the morning of the murder,
Hernandez and F., one of Hernandez’s two girlfriends, were
in the victim’s room. Hernandez asked the victim for
cigarettes for R.E. The victim asked Hernandez to walk with
her to take R.E. the cigarettes and the money she owed him.
C.H. also saw a male asking the victim for cigarettes
that morning, and recognized him as the same person who
called the victim a bitch the night before.
M.R. wanted to go with Hernandez and the victim to
give R.E. the cigarettes, but M.D. and C.H. persuaded her to
go to the liquor store with them instead. The victim looked
nervous as she was leaving with Hernandez. M.R. last saw
the victim and Hernandez walking in the direction of the
vacant house. R.E.’s car was in the driveway, and R.E. was
standing in the doorway of the vacant house. When M.R.
returned, she saw Hernandez out in front of the blue house.
She looked for the victim inside the blue house, but she could
not find her.
Later that afternoon, M.R. learned there was a fire at
the vacant house. Hernandez was at the blue house and she
asked him what happened, but he said he did not know.
Hernandez was walking around the house carrying F.’s
backpack. He looked paranoid and scared, and seemed
anxious to get out of the house. He left soon thereafter.
8S.C. identified the gun as the one depicted in People’s
Exhibit 59.
10
M.R. had seen R.E.’s car parked in the driveway of the
abandoned house and on the street by the abandoned house
that day. After the fire started, R.E.’s car was gone.
J.G. lived in the house next to the blue house. When
J.G. and his mother, R.G., realized the vacant house was on
fire, they went outside. J.G. saw Hernandez. J.G. re-
entered his house, and Hernandez followed him. Hernandez
told J.G. he needed money. Hernandez was carrying a bag
“like old ladies used to wear,” and was acting paranoid, as if
something had just happened. J.G. told him to leave because
his brothers and sisters were at home. Right after
Hernandez left, J.G. heard a gunshot. He did not see
anything, but he thought Hernandez had shot a gun.
At some point that afternoon, R.E. called M.D. and
asked him what was wrong with Hernandez. R.E. said
Hernandez had pulled out a gun and started shooting.
S.C. learned the victim was dead when C.H. showed
her a video of the victim being taken to the vacant house.
C.H. laughed and said, “That’s [the victim] that they’ve
taken out.” S.C. had seen Hernandez at the blue house that
morning. Hernandez was angry and yelling at F. He had
returned to the blue house to get F. after the fire, and had
the gun with him when he came back to the house.
S.E. was Hernandez’s other girlfriend. She was in
Humphrey Park with a friend for Summer Night Lights on
the evening of the murder. Hernandez met them and tried
to hand something to S.E. The object had a wooden handle
11
and a steel trigger and looked like a homemade gun.9 S.E.
pushed the object away and refused to take it. Hernandez
was annoyed that S.E. would not take it from him. He threw
a rock at S.E. and walked away.
R.C. and her mother lived behind the blue house in a
separate unit. When R.C. was leaving her house that
morning, she saw Hernandez, R.E., and the victim together.
When R.C. returned at about 8:30 p.m., her neighbor R.G.
said she had also seen Hernandez, R.E., and the victim
together that morning. R.G. said she saw all three of them
go into the vacant house, but that only Hernandez and R.E.
came out at around 4:00 p.m., minutes before the fire
started. R.G. appeared nervous and scared.
Hernandez was detained the night of the murder near
the park, and at that time was in possession of a .380 caliber
handgun. A person who lived across the street from the
location where Hernandez was detained advised detectives
that there was a gun lying in his front yard. Officers
recovered the gun, which was a Ruger .22 rifle that had the
barrel and stock cut off so that it was the size of a pistol.10
Hernandez was arrested in connection with the murder, but
released at some point, and the case went cold. The case was
9 In her testimony, S.E. identified the wooden handle of
the gun from the photograph of the gun marked as People’s
Exhibit 59.
10 The gun found in the yard was marked at trial as
People’s Exhibit 3.
12
revived several years later, and he was arrested again.
Hernandez was held in a cell with a confidential informant.
Their conversation was recorded, and excerpts of the
conversation were played for the jury. Hernandez neither
expressly denied nor admitted that he was the shooter in his
conversation with the informant. Hernandez told the
informant he was a Humphrey Boys gang member, and that
he regularly patrolled the blue house. He was worried
because the victim had been pregnant when she was killed.
The informant asked if the victim was doing some “foul shit.”
Hernandez responded that he had heard that the victim
“was running around with cops and all that shit.” He knew
that she was working with the police because “[i]n the hood,
I’ve seen her roaming around.” The informant said that
snitching was a legitimate reason to kill a woman even if she
was pregnant. Hernandez did not disagree. When the
informant asked if the police were “gonna have a strap on
[him],”11 Hernandez said “Last time they showed me the
strap, foo’.”
J.G. was in prison around the time of Hernandez’s
second arrest. While incarcerated, he made a phone call that
was recorded and played for the jury, in which he told a
female that he thought he “fucked up” and snitched because
he had told the police he saw the gun during a recorded
interview in 2011. J.G. said that other people, including S.C.
and M.R., also had talked to the police. J.G. told the female
11 A “strap” is a gun that someone is carrying.
13
that C.H. was also in prison and that C.H. thought he
“fucked up,” too.
The bullet recovered from the victim’s head was too
damaged from impact for ballistic analysis; however, the
weight and design of the bullet was consistent with being .22
caliber ammunition. The gun recovered from the front yard
across from the place of Hernandez’s arrest is a .22 caliber
gun with a wooden handle. Two expended shell casings were
recovered from the murder scene, including one near the
victim’s head; forensic analysis showed the casings were
fired from the recovered .22 caliber gun.12
DISCUSSION
Third Party Culpability Instruction
Hernandez contends that he was deprived of his
constitutional right to due process because the jury was not
instructed regarding third party liability. He first argues
that, although a third party liability instruction is a pinpoint
instruction that the trial court normally has no obligation to
give, we should consider requiring the trial court to give
such an instruction sua sponte in cases like his where the
person alleged by the defense to be the actual killer is a
witness at trial (i.e., R.E.) and the court has determined that
there is sufficient evidence for the defense to argue such a
theory to the jury. Alternatively, he argues that counsel was
12 The gun is depicted in People’s Exhibit 59.
14
ineffective for failing to request the instruction. We reject
both arguments.
Legal Principles
“‘A criminal defendant may introduce evidence of third
party culpability if such evidence raises a reasonable doubt
as to his guilt, but the evidence must consist of direct or
circumstantial evidence that links the third person to the
crime. . . . [Citation.] A trial court has a duty to instruct the
jury “sua sponte on general principles which are closely and
openly connected with the facts before the court.” [Citation.]
. . . [A] trial court [also] has a sua sponte duty to give
instructions on the defendant’s theory of the case, including
instructions “as to defenses ‘“that the defendant is relying on
. . . , or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the
defendant’s theory of the case.”’” [Citation.]’ [Citation.]”
(People v. Gutierrez (2009) 45 Cal.4th 789, 824 (Gutierrez).)
“But ‘“when a defendant presents evidence to attempt to
negate or rebut the prosecution’s proof of an element of the
offense, a defendant is not presenting a special defense
invoking sua sponte instructional duties. While a court may
well have a duty to give a ‘pinpoint’ instruction relating such
evidence to the elements of the offense and to the jury’s duty
to acquit if the evidence produces a reasonable doubt, such
‘pinpoint’ instructions are not required to be given sua
sponte and must be given only upon request.”’ (People v.
15
Saille (1991) 54 Cal.3d 1103, 1117.)” (People v. Anderson
(2011) 51 Cal.4th 989, 996–997.)
“To prevail on a claim of ineffective assistance of
counsel, the defendant must show counsel’s performance fell
below a standard of reasonable competence, and that
prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th
543, 569 (Anderson).) A defendant is prejudiced by counsel’s
representation if there is a reasonable probability that the
outcome would have been more favorable to the defendant
but for counsel’s failings. (Strickland v. Washington (1984)
466 U.S. 668, 694.)
Analysis
Our Supreme Court has spoken on the issue of whether
the trial court has a duty to instruct where there is sufficient
evidence of third party culpability. Instructions regarding
third party culpability “‘relate particular facts to a legal
issue in the case or ‘pinpoint’ the crux of a defendant’s case,
such as mistaken identification or alibi. [Citation.] They are
required to be given upon request when there is evidence
supportive of the theory, but they are not required to be
given sua sponte.’ [Citations.]” (Gutierrez, supra, 45 Cal.4th
at p. 824.) Here, defense counsel did not request an
instruction on third party culpability. The trial court
therefore did not err by not giving the instruction in the
absence of a request by the defense.
16
Defense counsel’s failure to request the instruction did
not prejudice Hernandez. Hernandez’s defense at trial was
that R.E. killed the victim, without Hernandez’s aid or
knowledge, and then attempted to shift the blame to
Hernandez by calling M.D. and telling him that Hernandez
had just pulled out a gun and started shooting. In closing
statements, defense counsel argued that the jury should not
find Hernandez guilty because the evidence supporting the
prosecution’s theory of the case was insufficient to establish
Hernandez had either killed the victim or aided and abetted
R.E. in killing the victim beyond a reasonable doubt. In
light of defense counsel’s repeated use of the reasonable
doubt standard to further Hernandez’s third party liability
theory of defense, there is not a reasonable probability that
Hernandez would have achieved a more favorable result if a
third-party culpability instruction had been given. Because
he cannot demonstrate prejudice, Hernandez’s ineffective
assistance of counsel claim necessarily fails, as does his
related due process claim. (See Anderson, supra, 25 Cal.4th
at p. 569.)
Sufficiency of the Evidence Supporting Gang
Enhancement and Special Circumstance
With respect to the murder in count 1, the jury found
true the allegation that Hernandez had committed the crime
for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote,
17
further, or assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)(C)), and the special circumstance that
he killed the victim when he was an active member of a
criminal street gang in order to further the criminal
activities of the gang (§ 190.2, subd. (a)(22)). Hernandez
contends that neither gang finding was supported by
sufficient evidence in the record. We disagree.
Legal Principles
When reviewing for sufficiency of the evidence, we
consider “‘“‘[t]he whole record in the light most favorable to
the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable
doubt.’”’ [Citation.]” (People v. Casares (2016) 62 Cal.4th
808, 823 (Casares), disapproved of on another ground in
People v. Dalton (2019) 7 Cal.5th 166, 214; see also People v.
Clark (2011) 52 Cal.4th 856, 942–943; Jackson v. Virginia
(1979) 443 U.S. 307, 321 [federal due process requires proof
“sufficient to have led a rational trier of fact to find guilt
beyond a reasonable doubt”].) “‘The standard of appellate
review is the same in cases in which the People rely
primarily on circumstantial evidence.’ (People v. Bean (1988)
46 Cal.3d 919, 932.) ‘. . . [I]t is the jury rather than the
reviewing court that weighs the evidence, resolves
conflicting inferences and determines whether the People
18
have established guilt beyond a reasonable doubt.’ (People v.
Yeoman (2003) 31 Cal.4th 93, 128.)” (Casares, supra, at
p. 823.)
“Section 186.22 adds various sentencing enhancements
for gang-related felonies. For purposes of the enhancements,
subdivision (b)(1) of that section requires that the felony be
committed ‘for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct
by gang members.’ This portion of section 186.22 requires
proof of only two elements: (1) that the defendant committed
a felony for the benefit of, at the direction of, or in
association with any criminal street gang and (2) that he did
so with the intent to promote, further, or assist in criminal
conduct by gang members. (People v. Albillar (2010) 51
Cal.4th 47, 67 [(Albillar)].) It does not require proof that a
defendant acted with the specific intent to promote, further,
or assist a gang. (Ibid.)” (People v. Mejia (2012) 211
Cal.App.4th 586, 613 (Mejia).)
Section 190.2, subdivision (a)(22) increases the penalty
for first degree murder to life without parole or death if
“[t]he defendant intentionally killed the victim while the
defendant was an active participant in a criminal street
gang, as defined in subdivision (f) of Section 186.22, and the
murder was carried out to further the activities of the
criminal street gang.” “Section 190.2, subdivision (a)(22), by
its express terms contains three basic elements: (1) the
defendant must intentionally kill the victim; (2) while an
19
active participant in a criminal street gang; (3) in order to
further the activities of the gang.” (Mejia, supra, 211
Cal.App.4th at p. 612.)
“‘In order to prove the elements of the criminal street
gang enhancement, the prosecution may, as in this case,
present expert testimony on criminal street gangs.’ (People
v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048 [].)
‘“Expert opinion that particular criminal conduct benefited a
gang” is not only permissible but can be sufficient to support
[a] gang enhancement.’ (People v. Vang (2011) 52 Cal.4th
1038, 1048; see Albillar, supra, 51 Cal.4th at p. 63.) While
an expert may render an opinion assuming the truth of facts
set forth in a hypothetical question, the ‘hypothetical
question must be rooted in facts shown by the evidence.’
(People v. Gardeley [(1996)] 14 Cal.4th [605,] 618.) Indeed,
an ‘expert’s opinion may not be based “on assumptions of fact
without evidentiary support [citation], or on speculative or
conjectural factors.”’ (People v. Richardson (2008) 43 Cal.4th
959, 1008.)” (People v. Franklin (2016) 248 Cal.App.4th 938,
948–949.) “As for the specific intent prong, ‘“[i]ntent is
rarely susceptible of direct proof and usually must be
inferred from the facts and circumstances surrounding the
offense.”’ [Citation.]” (Id. at p. 949.) “[A]lthough all gangs
regularly commit certain crimes, the fact that an individual
gang member commits one of those crimes by himself is not
substantial evidence that he did so for the benefit of, at the
direction of, or in association with the gang.” (People v.
Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7.)
20
Analysis13
Hernandez’s arguments fall into two categories:
arguments regarding the credibility of witnesses and the
weight to be afforded evidence, and arguments attacking the
prosecution’s expert witness testimony as based on
speculation and conjecture. With respect to the first
category of argument, it is the role of the jury to weigh
evidence and determine credibility. (Casares, supra, 62
Cal.4th at p. 823.) We defer to the jury’s findings, which are
supported by substantial evidence. It is immaterial that the
jury could have made a different finding. The second
category of argument is not supported by the record. The
expert witnesses in this case had both general professional
knowledge of gangs, including the Humphrey Boys, and
personal knowledge of the Humphrey Boys and Hernandez
himself. Officer Katherine O’Brien’s opinion that, in a
hypothetical case mirroring the facts of the instant one, the
defendant would act with the requisite intent, was based not
on conjecture, but on facts established by the evidence.
Substantial evidence demonstrated that Hernandez
was an active, high-level member of the Humphrey Boys.
Officer O’Brien testified regarding her personal knowledge of
the Humphrey Boys, and Hernandez in particular. Officer
O’Brien had been a peace officer with the Los Angeles Police
Department for 12 years at the time of trial, and was
13 Hernandez does not argue that the evidence was
insufficient to establish that the killing was intentional.
21
assigned to patrol the Humphreys Boys’ territory from 2010
to 2015. When she was promoted from gang duty in 2015,
she continued to patrol the same areas she had as a gang
officer. Officer O’Brien’s work on patrol involved daily
contact with, and interviews of, gang members. She got to
know individual members of the Humphrey Boys well.
Officer O’Brien had known Hernandez personally since 2010.
She was familiar with Hernandez’s numerous gang tattoos,
which demonstrated his allegiance to the Humphrey Boys.
The officer observed that Hernandez had new Humphrey
Boys tattoos when she photographed him in 2017. Officer
O’Brien knew that Hernandez was a “soldier” in the
Humphrey Boys—i.e., that he had “put in some work” or
committed crimes. She testified that “soldier” is not a low-
level position within the gang.
Detective Mario Santana testified regarding the
activities of soldiers in the Humphrey Boys. Detective
Santana worked for 19 years investigating homicides for the
Los Angeles Police Department. The detective had personal
knowledge of the manner in which the gang handled non-
gang drug sales within its territory because he had
negotiated a drug deal undercover as a non-gang member.
His testimony regarding how R.E.’s drug sales would have
been handled was based on that experience and other
interactions with the gang. Detective Santana estimated
that over half of the homicides he investigated were gang-
related. He had contact with and interviewed Humphrey
Boys gang members in connection with his homicide cases.
22
In 2011, Detective Santana was assigned to Foothill
Homicide, and investigated the instant case. The detective
testified that a soldier is “high[] level” within the gang. Shot
callers are responsible for the actions of the gang. They
order shootings, beatings, and other criminal activity.
Soldiers are one step below shot callers. “A soldier works out
there, and if a shot-caller directs him to go do something, to
do it. So if you need something done and you need
something done without hesitation, then you send a soldier
to go out and do it.”
There was also substantial evidence that Hernandez
murdered the victim for the benefit of, at the direction of, or
in association with the Humphrey Boys. S.C. testified that
she saw Hernandez speaking with a shot-caller for the
Humphrey Boys the night before the murder. The shot-
caller paid particular attention to the victim as he was
leaving, telling her goodbye and laughing. S.C. thought it
was strange that the shot caller spoke to the victim because
he was supposedly angry with her for snitching. The victim
had also stolen profiles from the shot-caller. S.C.’s testimony
that the victim had snitched was consistent with
Hernandez’s own statements about the victim. Hernandez
told a confidential informant that the victim had done some
“foul shit” because she had snitched, and also said that he
had personally seen her talking with police officers. The
jury could reasonably infer that, the night before the
murder, the shot caller instructed Hernandez to kill the
victim, either because she had snitched, which multiple
23
witnesses testified was an offense that carried the penalty of
death, or because she had stolen profiles from him, which
was unlikely to be tolerated, as allowing the victim to steal
from a shot caller without reprisal would injure the gang’s
reputation.
The jury could also have found that Hernandez killed
the victim because she owed R.E. money for drugs, and as
R.E.’s paid protector, the Humphrey Boys were responsible
for disciplining anyone who disrupted R.E.’s drug business.
Detective Santana testified that a soldier in the Humphrey
Boys would handle any problems R.E. had, including killing
someone if necessary, in the normal course of business. The
detective had personal knowledge of the manner in which
the gang handled non-gang drug sales within its territory
because he had negotiated a drug deal undercover as a non-
gang member. His testimony was based on that experience
and other interactions with the gang. Several witnesses
testified that R.E. was very angry with the victim because
she owed him money, cursing at her on two separate
occasions. R.E. dealt drugs within Humphrey Boys territory,
and although he denied that he had permission to do so, it
was the gang’s practice to require that he obtain permission
and to tax him.14 It was also Humphrey Boys policy for gang
members to carry out any killings within its territory in
order to maintain the appearance of control. The Humphrey
14 The jury could credit all or part of R.E.’s testimony
and could consider evidence of the Humphrey Boys’ regular
practices when making its findings.
24
Boys had a strong incentive to prevent buyers from taking
drugs from R.E. without paying. The money was not simply
owed to R.E. Proceeds also went to the Mexican Mafia. If
R.E. failed to pay the Humphrey Boys the money owed to
them because the victim failed to pay him, the gang would
lose revenue, and if the Humphrey Boys failed to pay the
Mexican Mafia, members of the gang could be killed.
Allowing a delinquent buyer to go undisciplined could send a
signal to others that the gang would allow them to be late
with payments, and compound the problem. Failing to
discipline the victim could give the gang the appearance of
softness, which would negatively affect its reputation, and
its ability to continue its criminal enterprises as easily.
From the evidence presented, the jurors could reasonably
infer that R.E. asked the Humphrey Boys to kill the victim
because she failed to pay him, the shot caller ordered the hit,
and Hernandez carried out the shooting.
There was substantial evidence that the shot caller and
the Humphrey Boys had multiple reasons to kill the victim.
Any one reason—failure to make payment on drugs,
snitching, or stealing—could be grounds for murder, and
killing the victim for one of those reasons would further the
criminal activities of the Humphrey Boys gang and its
members. (See, e.g., Mejia, supra, 211 Cal.App.4th at p. 616
[jury could reasonably conclude gang members attacked
rival in retaliation for disrespect towards gang, and attack
elevated gang’s reputation].) The evidence showed that the
victim had engaged in conduct that merited death in the
25
view of the Humphrey Boys, that carrying out an order to
murder the victim was consistent with Hernandez’s station
within the Humphrey Boys’ hierarchy, and that the shot
caller communicated with Hernandez the night before the
murder. This was sufficient to support a finding that
Hernandez acted at the shot caller’s direction in association
with, and for the benefit of the Humphrey Boys.
Officer O’Brien and Detective Santana testified that
committing violent criminal acts helped the Humphrey Boys
instill fear in the community, and that the timing of the fire
to coincide with the Summer Night Lights event sent a
strong message to the neighborhood that the Humphrey
Boys were in control. The Humphrey Boys demonstrated
that even when police were gathered across the street, they
could murder a woman who crossed them execution-style,
and then burn her body in a gruesome public display with
impunity. There was substantial evidence that Hernandez’s
actions benefitted, furthered, and promoted both the
Humphrey Boys gang and gang members in their criminal
activities by frightening away potential witnesses.
Officer O’Brien’s opinion that, in a hypothetical
situation mirroring the facts of the instant case, the
defendant would be acting for the benefit of, in association
with, or at the direction of a criminal street gang was
properly rooted in the facts presented, and the jury could
reasonably rely upon the opinion in reaching its verdict.
26
Implied Malice Murder of a Fetus
Hernandez contends that, because the jury was not
required to find that he knew the victim was pregnant when
he killed her, murder of the fetus was essentially a strict
liability offense, which, when used to support a multiple
murder special circumstance, violates the Eighth
Amendment. Hernandez acknowledges that our Supreme
Court has held that there is no requirement that a defendant
be aware that the victim is pregnant to be found guilty of
fetal murder. In People v. Taylor (2004) 32 Cal.4th 863, at
page 868 (Taylor), the Supreme Court stated: “When a
defendant commits an act, the natural consequences of
which are dangerous to human life, with a conscious
disregard for life in general, he acts with implied malice
towards those he ends up killing. There is no requirement
the defendant specifically know of the existence of each
victim.” We are bound by Taylor (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455), and decline
Hernandez’s invitation to urge the Supreme Court to revisit
its decision.
Section 667.5 Subdivision (b) Prior Prison Term
Enhancements
Hernandez contends, and the People concede, that the
three prior prison term enhancements imposed and stayed
27
pursuant to section 667.5, subdivision (b) must be stricken
pursuant to Senate Bill 136. We agree.
On October 8, 2019, the Governor signed Senate Bill
136 into law. The new law, which became effective on
January 1, 2020, amends section 667.5, subdivision (b),
which formerly imposed a one-year sentence enhancement
for each separate prior prison term or county jail term
imposed under section 1170, subdivision (h), where the
defendant had not remained free of custody for at least five
years. (Former § 667.5, subd. (b).) Pursuant to Senate Bill
136, the enhancement now applies only if a defendant served
a prior prison term for a sexually violent offense as defined
in Welfare and Institutions Code section 6600, subdivision
(b). (See Stats. 2019, ch. 590, § 1.)
Because Hernandez’s sentence was not final when
Senate Bill 136 took effect and because his prior offenses
were not for sexually violent felonies, we agree with the
parties that the amended law applies to him retroactively.
(People v. Herrera (2020) 52 Cal.App.5th 982, 995–996;
People v. Lopez (2019) 42 Cal.App.5th 337, 341–342 (Lopez).)
We modify the judgment to strike Hernandez’s prior prison
term enhancements. We need not remand this matter for
resentencing. (See Lopez, supra, at p. 342.)
28
DISPOSITION
Hernandez’s three 1-year prior prison term
enhancements imposed pursuant to section 667.5,
subdivision (b) are stricken. The trial court shall forward a
certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. As modified,
the judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
29