Filed 12/30/13 P. v. Hernandez CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

GIOVANNI HERNANDEZ,

Defendant and Appellant.

 B244259

 (Los Angeles County

 Super. Ct. No. SA061371)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael E. Pastor, Judge. Affirmed. 

John Steinberg, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J. 

Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

________________________________
2

A jury convicted Giovanni Hernandez of first degree murder (count 1; Pen. Code, 

§ 187, subd. (a));

1

four counts of attempted premeditated murder (counts 2-5; §§ 664 & 

187, subd. (a)); and shooting at an occupied motor vehicle (count 6; § 246). As to each

count, the jury found that Hernandez personally discharged a firearm causing great bodily 

injury or death (§ 12022.53, subd. (d)) and committed the crime for the benefit of a 

criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Hernandez to a

total term of 50 years to life in state prison.2 We affirm. 

FACTS

The Underlying Shooting

In 2006, the Culver City Boys gang and Sotel 13 gang were rivals. In the months 

leading up to July 2006, Hernandez began saying to people, including his friend Edy 

Hernandez,

3

and a gang unit police officer, that he was a member of the Sotel 13 gang. 

In the early morning hours of July 30, 2006, Los Angeles Police Department 

(LAPD) Officer Irene Castro and her partner responded to the area around Sawtelle and 

National Boulevards after receiving a radio call regarding shots fired. On arriving at the 

scene, Officer Castro saw a green Mustang with a shattered rear window and a bullet hole 

in the front windshield. Other officers at the scene stated that the victim, Jon Carillo, had 

already been transported to the hospital. Officer Castro and her partner went to the 

hospital to ask Carillo if he knew who shot him. Carillo was being treated and conscious

and talking to doctors and hospital staff, but he did not answer Officer Castro’s questions. 

Hospital staff informed Officer Castro that Carillo had sustained gunshot wounds to the 

knee, forearm and the back. Carillo was a member of the Sotel 13 gang. 

In the opinion of a police gang expert who testified at Hernandez’s trial, Carillo 

had been “grandfathered” into the Sotel 13 gang through relatives, and was “a ‘shotcaller’

 

1 All section references are to the Penal Code except where noted otherwise.

2 Hernandez was 21 years old on the date of sentencing.

3 Not meaning any disrespect, but for easy reference, we refer to Edy Hernandez as 

Edy. 
3

for his clique” in the gang. He was probably also one of Hernandez’s “mentors” in the 

gang. An attack on a gang’s shotcaller would be a “major, major insult” to the gang’s 

other members. 

The Shooting Incident by Hernandez

Felicia P. lived with her uncle and other relatives in an apartment on McLaughlin 

Street.4The murder victim, Gary O., was Felicia’s boyfriend, and he sometimes stayed at 

the apartment. Felicia knew Gary O. and Robert C. to be members of the Culver City 

Boys gang. Felicia’s cousin, Felix P., Jr., associated with members of the Sotel 13 gang. 

Felicia and Hernandez were friends. Felicia did not know “for sure” whether Hernandez 

was a gang member. Felicia was also friends with shooting victims Carillo, Jose Z., and 

Oscar M. She knew all three to be Sotel 13 gang members.

On July 30, 2006, Felicia woke up to a phone call from her friend “Christine.”

Christine told Felicia that Carillo had been shot. One of Felicia’s first thoughts was that a 

rival gang member must have shot Carillo, possibly “Santa Monica,” a main rival of the 

Sotel 13 gang. Later, Felicia received phone calls from both Oscar M. and Jose Z. In one 

call, Oscar casually asked Felicia who else was in the apartment with her. Felicia told 

Oscar that Gary and Robert were in the apartment. In other calls, Jose and Oscar both 

wanted to know what Robert and Gary would be doing that day, and Felicia told Jose and

Oscar that Robert and Gary would be leaving the apartment soon to go to the beach. 

At about 11:20 a.m. on July 30, 2006, Vanessa G., her sister Sophia G., and their 

friends Victor G. and Rudy D. drove to Felicia P.’s apartment where Gary O. and Robert 

C. were staying. Rudy was driving. Vanessa and the others parked and waited outside of 

the apartment, and Vanessa used her phone to call Gary and let him know that they had 

arrived. The group waited in Vanessa’s car for about 10 minutes before Gary headed 

down from the apartment. 

 

4

Felicia testified at a first trial in late 2010. She did not testify at a second trial at 

which Hernandez was convicted. Her testimony from the first trial was read to the jury at 

the second trial. 
4

Gary got into the car in the rear passenger seat behind Rudy D. Sophia told Gary 

to call Robert C. and tell him to hurry. At about that same moment, a four-door car drove 

up from behind and stopped alongside the driver’s side of the car in which Vanessa and 

the others were waiting.

5 Vanessa believed there were four males in the other car; she 

saw Hernandez seated in the rear passenger seat and heard him ask, “Where are you guys 

from?” Vanessa understood the question to be gang-related. Sophia saw and heard

Hernandez ask, “Where are you fools from?” Vanessa and Sophia immediately told 

Rudy to drive away. 

As Rudy tried to drive away, Hernandez began shooting at the people in Vanessa’s 

car. He fired the gun at least five times. Vanessa ducked until she heard the other car 

drive away from the scene. Rudy was shot and crashed the car into a parked car. Once 

the car came to a rest, Vanessa asked, “Is everyone okay?” Gary said he had been shot. 

Vanessa got out of the car, went to the driver’s side, and opened the door. Rudy had been 

shot in the head and appeared to be dead. Vanessa tried to speak to Rudy, but he did not 

respond. His head was resting on the steering wheel. Gary was clutching his own

stomach, and Vanessa dragged him out of the car to the curb. Sophia tried to speak to 

Gary, but he only made noises in pain. Victor G. had also been shot, but was able to get 

out of the car on his own. By then, Robert C. had come outside, and Vanessa told him to 

call the police. Sophia began shouting out for someone to call an ambulance. At trial, 

Vanessa and Sophia both identified Hernandez as the shooter. Both testified they were 

“sure” that Hernandez was the shooter. 

William K. was returning to his home on McLaughlin Street and saw a light green 

car blocking where he wanted to pull in. William parked his vehicle, approached the car 

and asked the driver to pull forward. Three men who looked Hispanic and had short hair 

were in the car. Two were seated in the front and one in the rear; the doors appeared to 

be ajar. The driver nodded in response to William’s request, but made no eye contact. 

As soon as the car pulled forward and William pulled his car into park, he heard what he 

 

5

Sophia testified the car was “like – I want to say blue gray tarnished like old 

car . . . .” Other witnesses saw the shooter’s vehicle as faded brown or maroon. 
5

thought might be firecrackers. William looked down the street and saw a man standing 

on the street. The man fired two gunshots into a car. The man jumped back into the car 

that William had approached seconds earlier, and the car drove off. 

Theodore R. and his friend were seated in his friend’s truck in front of his

apartment building on McLaughlin Street when he heard sounds that at first sounded like 

fireworks. At about the same time, Theodore’s friend said, “Hey, they are shooting over 

there.” Theodore looked in the direction his friend had indicated and saw a “double 

parked” car, which he thought was “probably [a] late 80’s, early 1990’s” Japanese or 

Asian compact, either a “Mazda or Toyota or something like that.” Theodore heard four 

or five more gunshots, and saw an arm extending from the front passenger side window 

of the car; he was about 150 feet from the car and was not sure exactly which window. 

Immediately after the shots were fired, the car came speeding towards the area where 

Theodore and his friend were parked. Theodore’s friend said they should both duck, and 

they both did. As they were down, it sounded like the car stopped next to them. When 

they heard neighbors outside on the street, they thought it was safe to sit up and get out of 

the truck. Theodore walked in the direction of the shooting. He told one of the victims 

that help was on the way. Theodore walked toward a car that was still running and 

pressed up against a parked car. He saw gunshot wounds to the driver’s head. Theodore 

figured the driver was dead and tried to help the other victims. 

Blake H. lived in the area and heard the gunshots. He ran outside to see what had 

happened and saw a four-door maroon Toyota or Honda speeding away from the scene. 

Blake thought he saw three men in the car, as well as a puff of smoke coming from where 

the car seemed to have sped away. He believed the first two characters on the license 

plate were “2M.” Blake provided this information to the police. 

Police responded to the scene. An ambulance transported Gary O., Victor G., and 

Rudy D. to the hospital. Vanessa tried to speak with the police and tell them what had

transpired, but she was so upset that she could barely get out any words. Sophia also 

spoke to the police. Gary died as a result of internal injuries caused by the gunshot 

wound to his abdomen. Rudy suffered permanent brain injuries which cause seizures. 
6

After the shooting, Hernandez called his friend Edy. He told Edy to turn on the 

television because the news was covering something that had just happened in the 

neighborhood. Edy turned on the news and saw the coverage of the shooting, which 

included information that Gary O. had died.6

About two weeks after the shooting (August 14, 2006), Vanessa G. and Sophia G. 

both identified Hernandez’s photographs from six-pack arrays. In March 2008, Vanessa 

G. identified Hernandez from a live lineup. 

The Criminal Case

In November 2006, the People filed an information charging Hernandez with 

murder (count 1; § 187, subd. (a)); four counts of attempted premeditated murder (counts 

2-5; §§ 664 & 187, subd. (a)); and shooting at an occupied motor vehicle (count 6; 

§ 246). As to all counts, the information alleged that Hernandez personally discharged a 

firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and that he 

committed the offense for the benefit of a criminal street gang (§ 186.22). 

At a first trial in late 2010 into 2011, a jury was unable to reach verdicts. The case 

was tried to a jury a second time in spring 2012. In June 2012, the jury returned verdicts 

finding Hernandez guilty on all counts as stated at the outset of this opinion. The trial 

court sentenced Hernandez to a total aggregate term of 50 years to life as follows: on 

count 1 (first degree murder) a term of 25 years to life, plus a consecutive term of 25-

years-to-life for the personal firearm use enhancement; on counts 2 through 5 (four 

counts of attempted premeditated murder) concurrent terms of 15 years to life with 25 

years to life for the personal firearm use enhancements; and on count 6 (shooting at a 

motor vehicle) a concurrent term of 15-years to life with 25 years to life for the personal 

firearm use enhancement. 

 

6

Police arrested Hernandez on August 24, 2006, and seized a cell phone in his 

possession. At trial, evidence from the cell phone showed that 30 calls were made to or 

from the phone between midnight and 7:54 a.m. on July 30, 2006. Other phone records 

showed Hernandez’s phone number was on phones of known Sotel 13 gang members. 

Four phone calls were made to Hernandez’s phone between 11:24 a.m. and 11:35 a.m. on 

July 30, 2006 (the time of the shooting); all four calls went to voicemail. 
7

Hernandez filed a timely notice of appeal. 

DISCUSSION

I. Gang Evidence

Despite the fact that he was charged with a gang allegation, Hernandez contends 

his convictions must be reversed because the trial court allowed the prosecution to admit 

photographs of him with firearms and to question a number of witnesses regarding his 

gang status. Hernandez argues this “cumulative and highly inflammatory evidence” was 

inadmissible on several grounds and that its repeated use at trial violated his due process 

rights under federal and state constitutional standards. We are not persuaded. 

The Evidence

1. Prosecution Witness Edy Hernandez

The prosecution first sought to introduce gang-related photographs of Hernandez 

during the testimony of Edy. As noted above, Edy testified that Hernandez made 

statements suggesting that he had been involved in the shooting. Edy further testified 

that he and Hernandez were friends. Edy admitted he was associated with the Sotel 13 

gang, but was not a member of the gang. When the prosecutor asked Edy whether or not 

Hernandez “claimed Sotel,” Edy answered that, in 2006, he had told detectives that 

Hernandez “claimed Sotel.” In this vein, Edy identified a photograph of Hernandez with 

other gang members in Mar Vista Park. 

On cross-examination, Edy testified that, in 2006, neither he nor Hernandez had

actually been “jumped” into the Sotel 13 gang. On redirect examination, Edy reiterated 

his testimony that, in 2006, Hernandez “claimed Sotel.” Edy explained: “He was saying 

he was from [Sotel 13]. That’s all I remember. I don’t know if he was jumped in or

anything like that.” The prosecutor then showed Edy a photograph of Hernandez with 

others whom Edy recognized as Sotel 13 gang members. Hernandez was “throwing”

a Sotel 13 gang sign in the photograph. The prosecutor also asked Edy if he had ever 

seen Hernandez with a gun? Edy answered, “No.” The prosecutor then asked, “If you 

did, would that change your opinion that maybe he is a gang member?” Edy answered, 

“A little, yeah, more.” 
8

2. The Gang Expert

The prosecution’s gang expert, LAPD Officer Agustin Lopez, testified about his 

familiarity with Hispanic gangs, their hierarchy, how one becomes a member of a gang, 

and the strong likelihood of retaliation by violence in the event of violence perpetrated 

against their own gang by a rival. Officer Lopez testified the primary activities of Sotel 

13, about which he is an expert, include murder, attempted murder, robbery, grand theft 

auto, vandalism and gun possession. He indicated that Hernandez admitted he had been 

jumped into Sotel 13 with the nickname of “Gio” and a moniker of “Minor.” He opined 

the Culver City Boys were rivals of Sotel 13 and that based on a hypothetical arising 

from the facts of the shooting in this case, that it was committed on behalf of a gang in 

retaliation against rivals. The prosecutor questioned Officer Lopez about the photographs 

of Hernandez and other Sotel 13 gang members with firearms and throwing gang signs. 

During the course of these exchanges, Officer Lopez testified that Hernandez was a 

“soldier” in the gang. 

3. Defense Witness J.H.

Hernandez’s sister, J.H., testified as a defense alibi witness. On direct 

examination, she testified that Hernandez’s parents were growing concerned in summer 

of 2006 that he was hanging out in the park with Sotel 13 gang members. She testified 

that Hernandez participated in soccer tournaments and was enrolled in a confirmation

program at their church. She did not offer an opinion whether he was a gang member.

On cross-examination, J.H. reiterated that Hernandez was “hanging around with 

gang members a lot that summer.” When the prosecutor asked, “Do you think your 

brother was a gang member?” J.H. answered, “No, he was not.” The prosecutor 

proceeded to show J.H. the photographs of Hernandez firing a weapon, holding a weapon 

in the presence of other gang members and throwing gang signs. The prosecutor asked 

J.H. if the photographs changed her opinion whether Hernandez was a gang member.

J.H. answered, “My opinion stays.” 
9

4. Other Defense Witnesses

The prosecutor used the photographs again during the testimony of Hernandez’s 

father, mother, and brother, all who testified as defense alibi witnesses. The scenario was 

largely the same as to all three witnesses –– all testified that Hernandez had been hanging 

out with gang members leading up to the time of the shooting, but none offered an 

opinion as to whether Hernandez, in fact, was a gang member. Then, on crossexamination, the prosecutor asked about their knowledge of Hernandez’s gang 

membership, and showed them the photographs, and asked whether the photographs 

changed their opinions about Hernandez’s gang membership. 

Hernandez’s father, testified on direct examination that Hernandez was hanging 

out with people his father did not approve of in Stoner Park. He did not offer an opinion 

whether Hernandez was a gang member. On cross-examination, Mr. Hernandez testified 

that he often went to Stoner Park to pick up Hernandez. He told Detective Lumbreras 

that Hernandez was hanging out with gang members. The prosecutor asked if he had 

ever seen Hernandez with a gun. He answered, “No.” The prosecutor then asked if he 

believed Hernandez was a gang member. When he responded, “No, I don’t think so,” the 

prosecutor showed him a photograph of Hernandez holding a gun and asked whether it 

changed his opinion. Mr. Hernandez responded, “I already knew he was hanging out 

with those guys. But I know him, and he lived at home. So I don’t believe he was a gang

member.” The prosecutor then showed him a photograph of Hernandez shooting a gun 

and asked, “How do you react to seeing your son practicing shooting a weapon like that? 

Does that change your mind at all that maybe he was a gang member?” He responded, 

“No.” 

Hernandez’s mother testified on direct examination that she told Hernandez not to 

hang out in the park because a police officer told her gang members congregated there. 

She saw him in the park with gang members. She testified that Hernandez was involved 

in soccer and confirmation classes. She did not offer an opinion whether Hernandez was 

a gang member.
10

On cross-examination, Mrs. Hernandez testified that Hernandez went to the park 

every day in the summer of 2006. She threw away some of his clothes because he was 

dressing like a gang member. The prosecutor asked if the police officer who warned her 

not to allow Hernandez to go to the park also told her that Hernandez was a gang 

member. Mrs. Hernandez responded that the officer did not assert Hernandez was a gang 

member, but counseled her. The prosecutor showed Mrs. Hernandez a photograph of 

Hernandez with other gang members throwing gang signs and asked whether “he looked 

a little bit like a gang member?” The prosecutor showed her a photograph of Hernandez

holding a gun and asked whether he was allowed to go shooting. She responded that he 

was not. The prosecutor asked if the photograph changed her opinion whether Hernandez

was a gang member. She responded, “My son is not a gang member.” 

Hernandez’s brother, S.H., Jr. testified on direct examination, that Hernandez

frequented Stoner Park and was “hanging around with people . . . that might have been 

just the wrong crowd . . . I think they were gang members.” He did not offer an opinion 

whether Hernandez was a gang member.

On cross-examination, the prosecutor showed the witness photographs of 

Hernandez throwing gang signs , and asked whether the photographs changed his opinion 

that “maybe my brother was a gang member and we didn’t know it.” The witness 

responded, “No, I didn’t think he was a gang member.” The prosecutor then showed the 

witness photographs of Hernandez holding a gun and shooting a gun , and asked if the 

photographs changed his opinion. He responded, “It is disappointing. It is something I 

wasn’t aware he was doing.”

Analysis

Hernandez argues his affiliation with the Sotel 13 gang “was not reasonably 

subject to dispute” and that the prosecution established his relationship with the Sotel 13 

gang with evidence independent of the photographs of him holding and shooting 

firearms. He contends the prosecution overused the gang evidence to show his “bad 

character” and his “propensity to commit crimes,” resulting in a denial of his federal 

constitutional right to due process. His arguments rely on cases addressing claims that 
11

trial courts erred in admitting gang evidence (see, e.g., People v. Albarran (2007) 149 

Cal.App.4th 214, 223-232 (Albarran)), or in admitting cumulative evidence (see, e.g., 

People v. Williams (2009) 170 Cal.App.4th 587, 611 (Williams)). 

To prevail on a claim that he was denied a fair trial or due process of law by the 

admission of gang evidence, Hernandez must show “admission of the evidence was 

erroneous, and that the error was so prejudicial that it rendered his trial fundamentally

unfair. [Citation.]” (People v. Garcia (2008) 168 Cal.App.4th 261, 275.) “‘Only if there 

are no permissible inferences the jury may draw from the evidence can its admission 

violate due process. Even then, the evidence must “be of such quality as necessarily 

prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that 

the jury must have used the evidence for an improper purpose.’ [Citation.] ‘The 

dispositive issue is . . . whether the trial court committed an error which rendered the trial 

“so ‘arbitrary and fundamentally unfair’ that it violated federal due process.” 

[Citations.]’ [Citation.]” (Albarran, supra,149 Cal.App.4th at pp. 229-230, fn. omitted.) 

As has been noted, the information charged Hernandez with counts for murder, 

attempted murder, and shooting at a motor vehicle, and included allegations as to all of 

the counts that he personally discharged a firearm causing great bodily injury or death 

(§ 12022.53, subd. (d)) and that he committed the crimes for the benefit of a criminal 

street gang (§ 186.22). The prosecution had the burden of proving the elements of the 

substantive offenses, and the ancillary allegations, beyond a reasonable doubt. It follows, 

that the prosecution was allowed to introduce evidence to satisfy its burden of proof as to 

all aspects of the case, including the gang allegations. 

In order to prove the gang allegation, the prosecution must prove that the felonious 

conduct was “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.” (§ 186.22, subd. (b)(1).) “‘In addition, the prosecution must 

prove that the gang (1) is an ongoing association of three or more persons with a common 

name or common identifying sign or symbol; (2) has as one of its primary activities the 

commission of one or more of the criminal acts enumerated in the statute; and 
12

(3) includes members who either individually or collectively have engaged in a “pattern 

of criminal gang activity” by committing, attempting to commit, or soliciting two or more

of the enumerated offenses (the so-called “predicate offenses”) during the statutorily 

defined period. (§ 186.22, subds. (e) and (f).)’ (People v. Gardeley [(1996)] 14 Cal.4th 

[605,] 616-617.)” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 (Hernandez).)

Given the burden of proving this allegation, the trial court did not err in allowing 

the introduction of gang photographs. In addition, evidence of gang membership is 

admissible to help prove identity, motive, specific intent or other issues pertinent to a 

charged crime. (Hernandez, supra, 33 Cal.4th at p. 1049.) Hernandez’s arguments that 

the gang expert could not be questioned about the basis for his opinions, including being 

questioned about photographs showing Hernandez’s gang-related activities, are simply 

not persuasive. 

The prosecutor’s questioning of Hernandez’s family and friends was also 

appropriate. There is no rule that limits the proof of a gang allegation to the testimony of 

a gang expert. Indeed, a gang expert’s testimony, standing alone, is often challenged as 

insubstantial. The testimony from defense witnesses that Hernandez was not a gang 

member was properly rebutted by the evidence presented by the prosecutor. 

The evidence was also properly admitted to impeach the civilian witnesses. 

Evidence that bears on the credibility of a witness’s testimony is relevant and admissible

(Evid. Code, § 785; People v. Abel (2012) 53 Cal.4th 891, 924-925) and trial court’s are 

afforded “considerable latitude” in allowing evidence that goes to credibility (People v. 

Winston (1956) 46 Cal.2d 151, 157). A trial court has discretion to admit or exclude 

relevant impeachment evidence under Evidence Code section 352. (People v. Clark

(2011) 52 Cal.4th 856, 932.) Because of the “‘great variety of factual situations in which 

the issue arises,’” the court’s discretion is as broad as needed to deal with each such 

situation, and is ordinarily upheld. (Ibid.) A court abuses its discretion when its ruling is 

arbitrary or capricious or unreasonable, all circumstances considered. (People v. Branch

(2001) 91 Cal.App.4th 274, 282.) 
13

During cross examination, Edy testified that neither he nor Hernandez had actually 

been jumped into the Sotel 13 gang. This was plainly a tactical decision by defense 

counsel to try to undermine proof of Hernandez’s identity as the shooter (because, as the 

trial court accurately observed, the shooting had earmarks of a gang shooting), as well as 

to challenge the gang enhancement allegations. As for the family member defense 

witnesses, they all testified that they had known Hernandez was “hanging around with the 

wrong people” leading up to the time of the shooting, but did not acknowledge nor deny 

that he was a gang member. 

Having made the tactical decision to attack the gang aspects of the case against 

Hernandez, the prosecutor was permitted to present evidence attacking the credibility of 

those witnesses for impeachment purposes. (Evid. Code, § 785.) The trial court did not 

act unreasonably in allowing the prosecutor to examine witness Edy and to cross-examine 

Hernandez’s sister and mother regarding their knowledge of Hernandez’s gang 

membership, and, in doing so, using the photographs showing his gang activities, subject 

to the protections of Evidence Code section 352. And such rulings under Evidence Code 

section 352 ordinarily do not infringe on a defendant’s due process rights. (People v. 

Falsetta (1999) 21 Cal.4th 903, 919-922.) The cases cited by Hernandez do not support 

the proposition that a defendant has a due process right to shield a witness from gang 

evidence that impeaches his or her credibility, where, as here, the evidence is relevant to 

the witness’s credibility. 

Two of the defense witnesses went further –– Hernandez’s sister and mother 

testified that he was involved in soccer, and was enrolled in a confirmation program at 

their church. This too was plainly a tactical decision designed to show Hernandez’s 

“good character,” and to implicitly suggest he would not have been involved in a gang 

shooting. Once Hernandez’ good character was put in issue, the prosecutor was free to 

challenge that characterization. (Evid. Code, § 1102, subd. (b).) 

With regard to Hernandez’s father and brother, neither of whom offered “good 

character” testimony, Hernandez claims the evidence was only offered to show 

Hernandez’s propensity to commit crimes. Not so. As we have noted, the evidence was 
14

relevant to prove the gang allegation; it was also relevant to the motive and identity of the 

shooter. We agree with Hernandez that the use of gang evidence to show criminal 

propensity may be problematic. (See Albarran, supra, 149 Cal.App.4th at p. 228.) 

But Hernandez’s reliance on Albarran in support of his position on this case is misplaced 

in this case. 

Albarran was found guilty of attempted murder, shooting at an inhabited dwelling 

and attempted kidnapping for carjacking. As to each count, a gang enhancement 

allegation was found true. Thereafter, a motion for new trial was granted as to the gang 

allegations, but the trial court found sufficient evidence to support each of the underlying 

convictions. On appeal, Division Seven of this court determined that the trial court 

should have granted a new trial as to the underlying convictions as well because the gang 

evidence, properly admitted to prove the gang allegations which were subsequently 

subject to the new trial order, prejudiced his trial on the underlying charges. (Albarran, 

supra, at pp. 230-231.) Obviously, this case is different because the gang allegations 

were not subject to order for new trial.

Hernandez also argues the repeated use of the gang evidence created a problem of 

cumulative evidence. But his trial did not involve a situation where a prosecutor “overproved” the case against the defendant, creating a problem of cumulative, prejudicial

evidence. (See Williams, supra, 170 Cal.App.4th at pp. 610-611.) The prosecutor did 

not call a list of witnesses, each of whom presented in turn a “repeat of previous 

evidence.” (Id. at p. 610.) Hernandez’s trial did not involve a situation where “[the] 

sheer volume of evidence extended the trial –– and the burden on the judicial system and 

the jurors –– beyond reasonable limits . . . .” (Id. at p. 611.) Here, the prosecutor did no 

more than challenge the credibility of defense witnesses as they testified, as is the right of 

every party at trial. 

Hernandez’s arguments on appeal do not persuade us to find a constitutional due 

process error. The gang evidence was properly admitted for a purpose other than 

showing criminal propensity. In summary, we find Hernandez’s case unlike Albarran, 

supra, 149 Cal.App.4th 214, where irrelevant, prejudicial gang evidence regarding such 
15

matters as the Mexican mafia was admitted to no discernible end other than to poison the 

jury. We also find Hernandez’s current case unlike Williams, supra, 170 Cal.App.4th

587, where there was continuous drumbeat of gang evidence to no discernible end other 

than to poison the jury. The overwhelming use of gang evidence at Hernandez’s trial had 

a legitimate purpose other than causing the jury to convict based on gang animus rather 

than the evidence.7

Finally, Hernandez contends his convictions must be reversed because the trial 

court erred in allowing the prosecutor to use gang evidence to impeach the testimony of 

the defense lay witnesses. Specifically, he argues that the use of gang evidence to 

impeach a witness should not be allowed when the evidence is more prejudicial than 

probative. He cites cases such as United States v. Tsosie (10th Cir. 2008) 288 Fed. Appx. 

496, 499 (Tsosie). We are not persuaded to reverse. 

In Tsosie, the defendant was convicted of assault offenses on lands within, in the 

language of the federal statutes, “Indian country.” During trial, “the government cross 

examined three defense witnesses with regard to their gang affiliation.” (Tsosie, supra, 

288 Fed. Appx. at p. 499.) The 10th Circuit Court of Appeals affirmed, applying this

rule: evidence of gang affiliation is admissible for proving a witness’s bias when a 

proper foundation is laid to show the witness’s gang affiliation, and the evidence is not 

more prejudicial to the defendant than probative to an issue at trial. (Ibid.) 

The Court of Appeals explained: “The district court was within its discretion in 

allowing [the] questioning [on gang affiliation]. First, the government met its burden of 

laying a proper foundation by showing Tsosie and the three defense witnesses (Derrick 

Ross, Adrian Beletso, and Elton Beletso) were members of the same gang- viz., the West 

 

7

In so far as Hernandez contends his convictions must be reversed because the 

opinions of lay witnesses as to whether he was a member of the Sotel gang were 

improperly admitted at trial, his argument falters. If a lay witness, without any personal 

knowledge, offered an opinion that a defendant was a gang member, and the lay witness 

opinion was used to prove a gang aspect or gang enhancement involved in a case, we 

might potentially see an issue. But this is simply not the context for the use of the lay 

witnesses’ opinion testimony at Hernandez’s trial, as we have shown. 
16

Side Crips. . . . [¶] Nor was the gang evidence unduly prejudicial under [Federal Rules 

of Evidence,] Rule 403. Evidence that the defense witnesses were biased in favor of their 

fellow gang member was highly probative. [See U.S. v. Keys (10th Cir. 1990)] 899 F.2d 

at 987-88; [U.S. v. Abel (1984) ] 469 U.S. at 52 . . . (‘A witness’ and a party’s common 

membership in an organization . . . is certainly probative of bias.’) . . . . Although gang 

membership can be prejudicial, the district court mitigated this problem by giving the 

jury a limiting instruction which said, ‘Evidence of possible gang membership may be 

considered by you for the sole purpose of evaluating the credibility of witnesses Derrick 

Ross, Elton Beletso, and Adrian Beletso and not for any other purpose.’ . . . This limiting 

instruction diminished any prejudicial effect of the evidence. [(Abel, 469 U.S. at p. 55 

. . . (noting court’s offer to give limiting instruction ‘ensure[d] that the admission of this 

highly probative evidence did not unduly prejudice’ defendant).)] 

Here, at Hernandez’s trial, the use of gang evidence was probative of the 

witnesses’ credibility. It provided a basis for the jurors to assess testimony that 

Hernandez was a soccer-playing, church-attending kid. We do not find it unduly 

prejudicial. The Tsosie opinion is largely a discussion of the rules of federal evidence, 

which mostly correspond with an Evidence Code section 352 analysis under state 

evidence law; the opinion is only marginally helpful is considering Hernandez’s due 

process claim on appeal. For all the reasons discussed above, we do not view 

Hernandez’s trial as fundamentally unfair based on the presentation of the gang evidence 

in the context of impeachment. 

For all of the reasons stated above, we do not find that the gang evidence, viewed 

as a cumulative matter, resulted in a denial of due process. The evidence was properly 

presented to support the gang expert’s testimony and to impeach witnesses. 

II. Prosecutorial Misconduct 

Hernandez contends his convictions must be reversed based upon prosecutorial 

misconduct. Specifically, Hernandez argues the prosecutor engaged in wrongful crossexaminations of witness Edy and Hernandez’s family member defense witnesses for the 

sole purpose of presenting inflammatory evidence of his gang membership and activities. 
17

For the reasons explained above in addressing and approving of the use of gang evidence, 

we reject Hernandez’s argument that the prosecutor engaged in misconduct in using the 

gang evidence at trial. Although a prosecutor may be found to have engaged in 

misconduct by intentionally eliciting inadmissible evidence (see People v. Smithey (1999) 

20 Cal.4th 936, 960), we do not see such misconduct in Hernandez’s trial record. As we 

explained above, the gang evidence was admitted for a proper purpose.

Assuming that misconduct occurred in the use of some limited portion of the gang 

evidence, we are not persuaded to reverse. “Under the federal Constitution, a prosecutor 

commits reversible misconduct only if the conduct infects the trial with such ‘“unfairness 

as to make the resulting conviction a denial of due process.”’ [Citation.] By contrast, our 

state law requires reversal when a prosecutor uses ‘deceptive or reprehensible methods to 

persuade either the court or the jury’ [citation] and ‘“it is reasonably probable that a result 

more favorable to the defendant would have been reached without the misconduct”’ 

[citation].” (People v. Davis (2009) 46 Cal.4th 539, 612.) In applying those standards, 

neither dictate reversal here. 

III. The “Excluded” Defense Evidence Issue

Hernandez contends his convictions must be reversed because the trial court erred 

in excluding evidence showing that one of the victims identified another person’s photograph in a six-pack array as the shooter. We disagree. 

After the shooting, LAPD Detective Joe Lumbreras prepared a six-pack array of 

photographs to show to victim Rudy D. The six-pack lineup included a photograph of 

Hernandez and a photograph of Luis C. At the hospital, Detective Lumbreras showed the 

six-pack to Rudy, and started asking him as to the photographs something to the effect, 

“Do you recognize this person?” When the detective pointed to Luis’s photograph, Rudy 

made a “thumbs up” gesture.8

 

8

The context of the out-of-court identification from the six-pack was shown by 

statements from the lawyers. There was no evidentiary hearing. 
18

During a break at Hernandez’s trial, shortly before Detective Lumbreras took the 

stand to testify, Hernandez’s trial counsel indicated to the court that the defense intended 

to question the detective about Rudy’s identification of another person as the shooter as 

described above. The prosecutor objected that Rudy’s out-of-court identification was 

inadmissible hearsay, and that the evidence should be excluded under Evidence Code 

section 352 because delving into the matter would be more prejudicial, time consuming 

and confusing than probative. The trial court ruled that the evidence inadmissible.9

The Governing Law

Hearsay evidence has two elements. It is evidence of a statement that was made 

other than by a witness while testifying in court, “that is offered to prove the truth of the 

matter stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay 

evidence is inadmissible.” (Evid. Code, § 1200, subd. (b).)

Hernandez acknowledges that Rudy’s “thumbs up” gesture in the hospital in 

response to Detective Lumreras’s act of pointing at a photograph was a “statement that 

was made other than by a witness while testifying in court.” Rudy’s thumbs up gesture 

amounted to a statement to the effect, “That’s the guy who shot me.” Hernandez also 

agrees that Rudy’s out-of-court statement was offered to prove the truth of the matter 

stated. As Hernandez states in his opening brief on appeal: “[T]he evidence of the 

identification of Luis C[.] was relevant evidence of third-party culpability, capable of 

raising a reasonable doubt of . . . guilt . . . .” The only issue, therefore, is whether the 

evidence of Rudy’s out-of-court statement was admissible “as provided by law.” 

Hernandez argues the evidence of Rudy’s out-of-court statement was admissible 

as a spontaneous statement under Evidence Code section 1240. Section 1240 reads:

“‘Evidence of a statement is not made inadmissible by the hearsay rule if 

the statement: [¶] (a) Purports to narrate, describe, or explain an act, 

condition, or event perceived by the declarant; and [¶] (b) Was made 

 

9

The trial court had disqualified Rudy from testifying at trial after his neurologist 

testified that Rudy had suffered brain damage in the shooting, that he had recurrent 

seizures, and that testifying would create a risk of causing a seizure. 
19

spontaneously while the declarant was under the stress of excitement 

caused by such perception.’”

“A spontaneous statement is one made without deliberation or reflection. 

[Citation.] ‘The crucial element in determining whether a declaration is sufficiently 

reliable to be admissible under this exception to the hearsay rule is . . . the mental state of 

the speaker. The nature of the utterance — how long it was made after the startling 

incident and whether the speaker blurted it out, for example — may be important, but 

solely as an indicator of the mental state of the declarant.’ [Citation.]” (People v. Raley

(1992) 2 Cal.4th 870, 892-893 (Raley).)

Whether a statement was a spontaneous statement admissible under Evidence 

Code section 1240 is “largely a question of fact.” (People v. Poggi (1988) 45 Cal.3d 306,

318.) The determination of the question for purposes of admissibility is vested in the trial 

court, not the jury. (Ibid.)

10 The trial court necessarily exercises an element of discretion 

in determining the facts. (Ibid.) On appeal, a trial court’s decision ruling to admit or 

exclude evidence as a spontaneous statement is reviewed for abuse of discretion. (People 

v. Phillips (2000) 22 Cal.4th 226, 236.) A court abuses its discretion when its decision is 

arbitrary or beyond the bounds of reason; a factual determinations that is not supported 

by substantial evidence falls within this framework. (Ibid.)

We find the evidence supports the trial court’s determination that Rudy’s out-ofcourt identification statement was not spontaneous. First, he made the statement well 

after the shooting. Although we do not see specific times stated in the record, we know 

that a period of time had passed since the shooting to allow for Rudy to be transported to 

the hospital, and for Detective Lumbreras to have prepared a six-pack. A measureable 

period of time ensued between the shooting and the statement. Although it is true that no 

mechanically applied time-link required between an event and statement for a statement 

to qualify as spontaneous under the Evidence Code (see, e.g., Raley, supra, 2 Cal.4th at 

pp. 892-893 [victim statement almost 20 hours after rape, but made immediately after 

 

10 The credibility of the statement ultimately remains with the jury or other trier of 

fact. 
20

victim found in ravine, essentially to first rescuers she encountered after the attack]), 

there is no indication that Rudy spoke when he was first able to do so. This brings us to 

second, related aspect of Rudy’s identification statement. Rudy did not “spontaneously”

make his statement. He did not walk into a police station, independently see a person’s 

photograph on a wanted poster, and begin pointing and identifying. On the contrary, he 

made the statement in response to “questions” posed by Detective Lumbreras –– who 

pointed to photographs in the six-pack to obtain an identification. Rudy’s statement was 

a thought-about, out-of-court identification, not subject to testing by cross-examination in 

court. As a result, the evidence was inadmissible hearsay, not subject to the spontaneous 

statement exception. 

IV. The Defense Closing Argument Issue

Hernandez contends his convictions must be reversed because the trial court 

abused its discretion in limiting the defense’s closing argument. We disagree. 

Before closing argument, Hernandez’s counsel requested to argue in his closing 

about famous cases of misidentification. Hernandez’s counsel indicated that he did not 

want a disruption during argument, and requested an opportunity to provide case 

authority to the trial court before argument, supporting his intention to discuss other 

criminal cases where there had been misidentifications. The court agreed to review any 

materials submitted before argument began. Defense counsel sought to make reference 

to cases such as the “Father Pagano” case which had been the subject of a movie, and the 

“Linell Jeeter” case which had been the subject of a 60 Minutes story. Defense counsel 

also wanted to make reference to comments by United States Supreme Court Justice 

Felix Frankfurther on the subject of eyewitness identification, and to news stories in 

general about people in prison being exonerated by DNA evidence later developed by the 

“Innocence Project.” The trial court directed defense counsel not to “make reference to 

so-called notorious cases by name or by issue. . . .” The court ruled that counsel could 

“argue about misidentification [generally]. . . . But we are not going to get into

discussions about notorious cases which involve hearsay and . . . undue time 

consumption. . . .” 
21

The Governing Law

The defense’s closing argument “is a basic element of the adversary factfinding 

process in a criminal trial” and the complete denial of an opportunity to make a closing 

argument is a violation of the constitutional right to counsel. (Herring v. New York 

(1975) 422 U.S. 853, 858-859, 863 (Herring).) In the same vein, a defendant’s right to 

counsel is denied when a trial court seriously limits defense closing argument, as by 

precluding reference to an entire theory of defense (Conde v. Henry (9th Cir. 1999) 198 

F.3d 734, 739) or by not allowing counsel to argue the significance of evidence critical to 

a theory of the defense (U.S. v. Kellington (9th Cir. 2000) 217 F.3d 1084, 1099-1100). 

At the same time, a trial court is not wholly precluded from governing closing 

argument. “The presiding judge must be and is given great latitude in controlling the 

duration and limiting the scope of closing summations. He [or she] may limit counsel to 

a reasonable time and may terminate argument when continuation would be repetitive or 

redundant. He [or she] may ensure that argument does not stray unduly from the mark, or

otherwise impede the fair and orderly conduct of the trial. In all these respects he [or she] 

must have broad discretion. [Citations.]” (Herring, supra, 422 U.S. at p. 862; and see 

also People v. Holloway (2004) 33 Cal.4th 96, 137.) Counsel’s argument to the jury 

“‘must be based solely upon those matters of fact of which evidence has already been 

introduced or of which no evidence need ever be introduced because of their notoriety as 

judicially noticed facts.’ [Citations.] He may state matters not in evidence that are

common knowledge, or are illustrations drawn from common experience, history, or 

literature. [Citations.]” (People v. Love (1961) 56 Cal.2d 720, 730, disapproved on other 

grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2.)

But the trial court retains discretion pursuant to section 104411 to limit counsel’s 

argument under the circumstances of each case. (See People v. London (1988) 206 

 

11 Section 1044 provides: “It shall be the duty of the judge to control all proceedings 

during the trial, and to limit the introduction of evidence and the argument of counsel to 

relevant and material matters, with a view to the expeditious and effective ascertainment 

of the truth regarding the matters involved.”
22

Cal.App.3d 896, 909.) Counsel “may not dwell on the particular facts of unrelated, 

unsubstantiated cases.” (People v. Mendoza (1974) 37 Cal.App.3d 717, 725 [trial court 

properly precluded defendant’s counsel from reading newspaper clipping about unrelated 

crimes, which constituted hearsay material that could only confuse jury with irrelevant 

facts]; see also People v. Sanders (1995) 11 Cal.4th 475, 554-555 [trial court properly 

precluded references to the “notorious but unrelated” Charles Manson case, but allowed 

defense counsel to argue in general terms that there were “‘worse cases’” than the 

defendant’s in terms of number of victims and nature of crime]; People v. Pelayo (1999) 

69 Cal.App.4th 115, 122 [trial court properly restricted defense counsel’s closing 

argument by prohibiting references to newspaper articles about individual who was

acquitted of sex crimes against children when it discovered children fabricated their 

stories].)

Analysis

We find the trial court did not abuse its discretion nor improperly impede 

Hernandez’s constitutionally guaranteed fair trial and assistance of counsel rights by 

restricting closing argument in the manner the court did. As the cases teach, a defendant 

does not have an absolute constitutional right to present closing argument of the kind and 

scope that the defendant desires. 

At Hernandez’s trial, the court precluded defense counsel from referring to certain 

historical cases of misidentification during closing argument. In so doing, the court had 

concerns about counsel engaging in a continuous loop of presentations concerning 

unrelated cases of proper identification cases and misidentification cases that would 

confuse the jury and cause undue delay by requiring discussion of the specific facts of 

each. The court also did not want to create trials within a trial that would result because 

the “notorious” cases which Hernandez wanted to discuss might well not have been

within the common knowledge of the jurors.12 It is difficult to make meaningful 

comparisons with other crimes and cases, even when well publicized, without knowing 

 

12 To be frank, we confess no memory of the Pagano and Jeeter cases.
23

the specific circumstances of such cases. (People v. Roybal (1998) 19 Cal.4th 481, 529;

People v. Marshall (1996) 13 Cal.4th 799, 854-855.) All of these concerns expressed by 

the trial court were legitimate. 

In addition, the court did not come close to foreclosing defense counsel from

arguing misidentification. The court permitted defense counsel to argue the witnesses 

misidentified Hernandez by any other lawful manner apart from reference to other cases. 

Defense counsel did so by arguing that eyewitnesses are “often mistaken,” After 

considering all circumstances, we find no abuse of discretion or denial of the right to 

counsel or to present a defense or to a fair trial by the court’s limits on argument. 

But, even assuming the court erred in limiting closing argument, we would not 

reverse even under the heightened standard of Chapman v. California (1967) 386 U.S. 

18, 24. Hernandez’s trial would not have been any different had his defense counsel been 

allowed to refer to the Pagano and Jeeter cases. We are amply satisfied that the jury 

would not have decided Hernandez’s case any differently had the jurors heard mention of 

two or three separate, “notorious” cases of misidentification. The jury plainly knew of 

the misidentification issue in Hernandez’s case, and could evaluate the issue based on the 

actual case presented to it at Hernandez’s trial. 

V. Sentence

Hernandez contends his sentence of 50 years to life violates the ban on cruel and 

or unusual punishment under the state and federal constitutions. His arguments implicate 

the factor of his age at the time he committed his crimes (14 years 11 months). We find 

no state or federal constitutional violation in Hernandez’s sentence. 

Article I, section 17 of the California Constitution prohibits cruel or unusual 

punishment. In In re Lynch (1972) 8 Cal.3d 410 (Lynch), our Supreme Court held a 

punishment may violate the California Constitution “if, although not cruel or unusual in 

its method, it is so disproportionate to the crime for which it is inflicted that it shocks the

conscience and offends fundamental notions of human dignity.” (Id. at p. 424.) Under

Lynch, there are three separate prongs of analysis: (1) the nature of the offense and/or the 

offender, with particular regard to the degree of danger both present to society; (2) a 
24

comparison of the challenged penalty with punishments prescribed in the same 

jurisdiction for different, more serious offenses; and (3) a comparison of the challenged 

penalty with punishments prescribed for the same offense in other jurisdictions. (Id. at

pp. 425-427, fn. omitted.)

The federal constitutional standard is similar to the state constitutional standard. 

The Eighth Amendment to the United States Constitution, applicable to the states by the 

Fourteenth Amendment, prohibits cruel and unusual punishment. Under the federal 

constitutional examination, a sentence may be cruel and unusual when it is grossly

disproportionate to the defendant’s crime. (See, e.g., Solem v. Helm (1983) 463 U.S. 277

(Solem); Harmelin v. Michigan (1991) 501 U.S. 957.) In determining whether crime and 

sentence are unconstitutionally disproportionate, courts are required to must evaluate 

certain objective criteria including the seriousness of the offense, the penalty imposed, 

the sentences imposed on others who have committed the same or similar offenses in the 

same jurisdiction, and the sentences imposed in other jurisdictions for the same or similar 

offenses. (Solem, supra, 463 U.S. at p.292.)

Issues concerning juvenile offenders and lengthy sentences have been the subject 

of a number of recent state and federal court decisions. The United States Supreme Court 

in Graham v. Florida (2010) __ U.S. __ [130 S.Ct. 2011], held that a sentence of life in 

prison without the possibility of parole cannot be imposed upon a juvenile defendant for a 

nonhomicide offense without violating the Eighth Amendment. In Miller v. Alabama 

(2012) __ U.S. __ [132 S.Ct. 2455], the United States Supreme Court held that the Eighth 

Amendment prohibits mandatory sentencing schemes that require a term of life in prison

without the possibility of parole for juvenile defendants convicted of homicide, without 

permitting the sentencing court any discretion to consider the offender’s age, age-related 

characteristics, and the nature of the crime. (Miller, supra, 132 S.Ct. at p. 2465.)

In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), our Supreme Court

considered Graham and Miller in determining whether a juvenile’s sentence violated the 

Eighth Amendment to the United States Constitution. In Caballero, the defendant was 

sentenced to 110 years to life for three counts of attempted murder; he had been 16 years 
25

old when he committed his crimes. (Id. at p. 265.) Our Supreme Court noted that, in

Graham, the United States Supreme Court ruled that the Eighth Amendment requires 

state courts to afford juvenile offenders a meaningful opportunity to be released based on 

demonstrated growth and maturity. In clarifying this standard, Graham relied on studies 

showing the fundamental differences between juvenile and adult minds, including

behavior control, which continues to mature through late adolescence, and that juveniles 

are more capable of change than adults. (Caballero, supra, 55 Cal.4th at p. 266.) As the 

our Supreme Court further observed in Caballero: “Graham likened a life without parole 

sentence for nonhomicide offenders to the death penalty itself, given their youth and the 

prospect that, as the years progress, juveniles can reform their deficiencies and become 

contributing members of society.” (Ibid.)

In Caballero, our Supreme Court also noted that Miller reiterated Graham’s focus 

on the “distinctive (and transitory) mental traits and vulnerabilities” of children, finding 

them applicable even in a robbery turned homicide situation. (See Caballero, supra, 55 

Cal.4th at p. 267.) Our Supreme Court found that Miller clarified Graham’s “‘flat ban’” 

on life-without-parole sentences in nonhomicide cases involving juvenile defendants, 

including sentences that amount to the “functional equivalent” of a term of life-withoutparole sentence, as had been imposed in Caballero. (Caballero, supra, at pp. 267-268.)

Based on its analysis of Miller and Graham, our Supreme Court held in Caballero that 

sentencing a juvenile offender for a nonhomicide offense to a specified term of years,

with a parole eligibility date that falls outside the offender’s own natural life expectancy,

constitutes cruel and unusual punishment. (Caballero, supra, at p. 268.) The court 

reversed the defendant’s sentence and remanded for resentencing in light of these 

principles. 

Here, we consider the constitutionality of a sentence of 50 years to life on a 

defendant – 14 years old on the day of his crimes – who is convicted of first degree 

murder, four counts of attempted murder, and shooting at an occupied motor vehicle. 

While Caballero did not involve a juvenile who had been convicted of murder, our 

Supreme Court there did discuss the possibility of a murder sentence violating the Eighth
26

Amendment as follows: “Although Miller concluded that Graham’s categorical ban on

life without parole sentences applies only to all nonhomicide offenses, the court 

emphasized that in homicide cases, states are forbidden from imposing a ‘[m]andatory 

life without parole for a juvenile.’” (Caballero, supra, 55 Cal.4th at p. 291, fn. 4.)

Our Supreme Court noted that mandatory sentences preclude consideration of a 

juvenile’s chronological age and its hallmark features—among them, immaturity, 

impetuosity, and failure to appreciate risks and consequences. Such sentences also 

prevent taking into account the family and home environment that surround the

juvenile—no matter how brutal or dysfunctional. Our Supreme Court concluded: 

“Thus, in Miller the high court did ‘not foreclose a sentencer’s ability’ to determine 

whether it was dealing with homicide cases and the ‘“rare juvenile offender whose crime 

reflects irreparable corruption.”’ [Citations.] The court requires sentencers in homicide 

cases ‘to take into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.’ [Citation.] We leave 

Miller’s application in the homicide context to a case that poses the issue.” (Caballero, 

supra, 55 Cal.4th at p. 268, fn. 4.)

This is such a case, and we find the punishment imposed on Hernandez is not 

unconstitutional, notwithstanding his age on the day he committed his crimes. The 

sentencing judge was familiar with the cases we have outlined above. The record makes 

clear that the court was diligent and thoughtful about their holdings, as well as their 

import and application to the facts of this case. The court considered Hernandez’s 

actions. Specifically, Hernandez murdered Gary. He also shot Rudy, destroying his 

quality of life and causing him to suffer from seizures that put his life in jeopardy. 

Hernandez also shot Victor G., and shot at still others, all to benefit a criminal street 

gang. The gravity of the offenses cannot be ignored. Moreover, Hernandez’s sentence is 

not the functional equivalent of life without the possibility of parole; he will be eligible 

for parole in his expected lifetime.
27

Hernandez faced a potential sentence far beyond the one imposed by the 

sentencing court, who expressly stated he was constrained by Eighth Amendment issues. 

Indeed, on each of counts 2 through 5, Hernandez could have been sentencing to an 

additional and consecutive 15 years to life, for an additional 75 years to life. Consecutive 

firearm enhancements of 25 years to life on counts 2 through 5 could also have been 

imposed, for an additional 100 years to life. As a result, Hernandez’s potential sentence 

was 275 years to life. The able sentencing court knew he was required to impose a 

sentence that would not exceed Hernandez’s life expectancy, because, as he noted, it 

“would not fulfill the constitutional requirements under the Eighth Amendment.” The 

court also stated: “I want to make it clear. I believe without these cases that I would 

sentence the defendant as to counts 2, 3, and 4, to consecutive terms . . . . ” Expounding, 

the court said, “I wanted very much to sentence Mr. Hernandez to consecutive terms 

because of [the] separate acts of violence committed against completely innocent people. 

He deserves it. I can’t do it Constitutionally especially as regards to [Rudy], and that has 

kept me up at night.” 

We acknowledge Hernandez’s youth at the time he committed the offenses, but his 

total sentence of 50 years to life is substantially less severe than the sentences in Graham, 

Miller, and Caballero. In addition, Hernandez’s offenses were substantially more severe. 

Hernandez’s sentence will not keep him in prison until he dies, without an opportunity to 

demonstrate his growth, maturity, and rehabilitation entitle him to release on parole. 

The trial court considered these factors. His sentence is not cruel and or unusual 

punishment under either the federal or state constitutions. 

VI. Cumulative Error

Because we have found no reversible errors as discussed above, we reject 

Hernandez’s argument that cumulative errors require reversal. (People v. Watson (2008) 

43 Cal.4th 652, 705; People v. Abilez (2007) 41 Cal.4th 472, 523.)
28

DISPOSITION

The judgment is affirmed. 

BIGELOW, P. J. 

We concur:

RUBIN, J.

GRIMES, J.