Filed 7/24/13 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055441
v. (Super.Ct.No. RIF10002423)
MANUEL HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,
Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Susan Miller and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Manuel Hernandez is serving a life sentence after a jury convicted him
of attempted murder and gang participation, with enhancements, for stabbing two rival
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gang members during a daytime altercation on a Riverside street. Defendant challenges
the gang participation conviction and street gang enhancement as unsupported by
sufficient evidence. As discussed below, while defendant does point to evidence that, if
believed, could negate the gang charge and enhancements, there is more than sufficient
evidence, viewed in the light most favorable to the verdict, to support the jury’s
conclusions.
FACTS AND PROCEDURE
On April 30, 2010, around noon, a state parole agent was driving his car in
Riverside when he saw two males on bicycles arguing with the occupants of a Honda
Accord at an intersection. The passenger of the Honda got out and started fighting with
the two males. The driver of the Honda (defendant) pulled closer, got out, and stabbed
the two males. Defendant and the passenger then got back into the Honda and drove
away.
An off-duty police officer also witnessed the fight. The officer followed the
Honda in his car and called for back up. The Honda pulled into a parking space at an
apartment complex. The officer, who was wearing civilian clothes, got out of his car
with his gun drawn, identified himself as a police officer1 and told the men to stay in the
Honda. Defendant backed the Honda out of the stall and, with the Honda’s front facing
the officer, accelerated toward the officer. The officer fired his gun at the Honda, but the
1 Defendant testified at trial that he heard the officer say something like “[g]et out
of the car or I’m going to shoot you in your head.”
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car struck him, flipping him onto and over the Honda. The Honda crashed. The injured
officer ordered the two men to get out of the car and awaited backup.
On April 27, 2011, the People filed an information charging defendant with two
counts of attempted murder (Pen. Code, §§ 664/187),2 one count of active participation in
a criminal street gang (§ 186.22, subd. (a)) and one count of assault on a peace officer
with a deadly weapon (§ 245, subd. (c)). Regarding the attempted murder charges, the
People also alleged that defendant personally inflicted great bodily injury (§§ 12022.7,
subd. (a), 1192.7, subd. (c)(8)), personally used a dangerous weapon (a knife) (§§ 12022,
subd. (b)(1), 1192.7, subd. (c)(23), and committed the crimes for the benefit of a criminal
street gang (§ 186.22, subd. (b)).
On November 14, 2011, a jury found defendant guilty of both counts of attempted
murder along with all three enhancements as to each, guilty of the gang participation
count, not guilty of assault on a peace officer with a deadly weapon, and guilty of the
lesser included offense of assault with a deadly weapon (§ 245, subd. (a)).
At the sentencing hearing on January 6, 2012, the trial court sentenced defendant
to a determinate term of 12 years, plus 30 years to life as follows: 15 years to life plus
four years3 for each of the attempted murder counts, plus two years for active
participation in a street gang (stayed pursuant to section 654), plus four years consecutive
for assault with a deadly weapon. This appeal followed.
2 All section references are to the Penal Code unless otherwise indicated.
3 The four-year enhancement to each life term consists of one year for personal
use of a deadly weapon and three years for personal infliction of great bodily injury.
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DISCUSSION
1. Substantial Evidence – Active Gang Participation
Defendant argues that insufficient evidence supports his conviction for active
participation in a gang. Specifically, defendant contends there is insufficient evidence of
two of the three elements of this crime: 1) that he actively participated in the 18th Street
gang; and 2) that he assisted in felonious criminal conduct by gang members.
“In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate
court presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citations.] The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.)
Active participation in a street gang has three elements: 1) defendant’s active gang
participation that is more than nominal or passive, and that is reasonably near the time of
the crime; 2) defendant’s knowledge of a pattern of criminal gang activity; and 3)
defendant willfully promoting, furthering, or assisting felonious gang conduct (§ 186.22,
subd. (a); People v. Lamas (2007) 42 Cal.4th 516, 523; People v. Garcia (2007) 153
Cal.App.4th 1499, 1509). Defendant challenges the first and third elements.
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The substantial evidence of defendant’s recent active gang participation is as
follows. First, defendant had 18th Street gang tattoos. Second, a police officer testified
that defendant claimed gang membership. Specifically, Police Officer Townsend, who
was one of the first officers to respond to the request for backup, testified that he lifted up
the shirt of the handcuffed defendant to see if he had been shot. He saw 18th Street gang
tattoos on defendant’s stomach, back and right forearm. In addition, the People
introduced evidence that defendant also had a gang tattoo on his upper chest. Officer
Townsend testified that, while he was looking at the tattoos, defendant told him “I’m with
18th Street,” which he took to mean “That he just claimed a gang.” A defendant’s
admission of gang membership to law enforcement is probative of active participation.
(People v. Williams (2009) 170 Cal.App.4th 587, 626.) Third, defendant had gang
graffiti on several personal belongings—a compact disc case, a laundry basket and a
course syllabus. Fourth, defendant had at his home five letters between himself and two
18th Street gang members, dated as recently as three weeks before the attempted
murders. In these letters, both defendant and his gang correspondents discuss criminal
activity and court proceedings and use language and symbols both unique to the 18th
Street gang and indicative of mutual, active gang membership. Fifth, a police detective
who testified as a “gang expert” stated that, in his opinion, defendant was an active
participant in the 18th Street gang, based on the tattoos, the personal items with graffiti,
and the letters.
The substantial evidence that defendant willfully assisted a fellow gang member in
committing a felony is as follows. First, the gang detective testified that the passenger is
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a member of the 18th Street gang. Second, the gang detective based this opinion on
photographs he presented of the passenger throwing 18th Street gang signs, on police
reports from Orange County stating that in 2004 the passenger had claimed membership
in the gang to law enforcement, and on several field identification cards from Orange
County, the latest being in 2007. In addition, as the People point out, section 186.22,
subdivision (a), requires that the defendant be a recently active gang member, but does
not require that the person or persons the defendant willfully assists to commit a felony
be other than “members of that gang.”
Defendant points to his own testimony that he did not claim gang membership to
Officer Townsend, but rather simply identified the tattoos on his body, saying “This is
18th Street.” Defendant also testified that he had joined 18th Street when he was 13
years old, but had drifted away from the gang, and had never committed any crimes for
the gang. Defendant pointed to his lack of a criminal record. Defendant also testified
that, although he and the passenger in his car had been close friends for two and one-half
years, he was not aware that the passenger was a member of 18th Street. One of
defendant’s high school teachers testified that that she was not aware defendant was a
gang member, although she knew others who were. She testified that defendant was very
respectful and was not violent toward other students. Defendant also points to the gang
expert’s testimony that defendant had no criminal history, that there were no field
identification cards on defendant showing that police had ever contacted him and
identified him as a gang member, and that some gang members do become inactive and
drift away from gangs without being “jumped out.”
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The evidence at trial, viewed in the light most favorable to the verdict, rather than
in the light most favorable to defendant, is sufficient to support the verdict. The jury, as
the finder of fact, was entitled to believe Officer Townsend’s testimony that defendant
claimed to be a gang member over defendant’s testimony that he was merely identifying
his tattoos. The jury was also entitled to disbelieve defendant’s testimony that he was
good friends with the passenger for more than two years but had not discovered their
mutual gang membership.
2. Substantial Evidence—Gang Enhancement Allegation
Defendant also contends the evidence was insufficient to support the jury findings
as to both attempted murder counts that these crimes were committed for the benefit of or
in association with the gang. “[S]ection 186.22[, subdivision] (b) is satisfied if the crime
was ‘committed for the benefit of, at the direction of, or in association with a[] criminal
street gang, with the specific intent to promote, further, or assist in . . . criminal conduct
by gang members . . . .’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324,
1332 (Martinez); People v. Leon (2008) 161 Cal.App.4th 149, 163 (Leon).) Defendant
here addresses both prongs of the gang allegation—he argues there is insufficient
evidence to show he stabbed the two men for the benefit of or in association with any
gang because there is no evidence that he gave a gang sign or did anything to increase the
reputation of the 18th Street gang. He also contends he could not have stabbed the two
men with the specific intent to assist gang members in a criminal activity because there is
no evidence that he knew his passenger was a gang member.
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The evidence, viewed in the light most favorable to the verdict, is sufficient on
both counts. First, the two victims, one of whom had been identified as a member of
another gang,4 told police in their initial interview that the occupants of the car had yelled
at them to find out what neighborhood they were from. After the victims responded with
their neighborhood, the passenger got out of the car and began to fight them, followed by
defendant with the knife. The gang expert later testified that this kind of confrontation
beginning with a “where are you from?” inquiry that escalates into a fight, stabbing, or
shooting, is a “textbook hypothetical gang scenario.” There exists pressure on behalf of
the gang to escalate such a situation until the non-gang members back down or there is a
physical altercation. The expert stated that the stabbing was committed for the benefit of
the 18th Street gang because it would bolster the gang’s violent reputation. The stabbing
was committed in association with 18th Street because it was committed by two 18th
Street gang members. “Expert opinion that particular criminal conduct benefited a gang
by enhancing its reputation for viciousness can be sufficient to raise the inference that the
conduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the
meaning of section 186.22(b)(1). [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47,
63.)
Second, defendant committed the attempted murders while assisting a fellow gang
member. Although defendant points to his testimony that he specifically did not know
4 The police officer who initially interviewed the two victims knew one of them
from being previously a resource officer at a local high school, where the victim had
shouted out his gang affiliation during a fight.
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that his passenger was a member of the 18th Street gang, the jury was entitled to reject
this testimony based on his lack of credibility5 and the improbability that the subject
would not have come up between close friends over the course of two and one-half years,
especially given that defendant’s upper body and right forearm were covered with 18th
Street gang tattoos, and items in his home had 18th Street graffiti on them.
Thus, despite defendant’s arguments to the contrary, sufficient evidence supports
the jury’s finding that defendant committed the attempted murders for the benefit of or in
association with the 18th Street gang, with the specific intent to further criminal conduct
by gang members.
DISPOSITION
The judgment of conviction and the sentence are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
5 Defendant also testified that he did not intend to stab either victim. While he
did admit to having brought the knife into the fight, he testified that “I ended up cutting
one of them” while swinging both of his hands, one of which was holding the knife.
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