Filed 4/21/21 P. v. Hernandez CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and 

Respondent,

v.

OSCAR HERNANDEZ,

Defendant and 

Appellant.

 B301861

 (Los Angeles County

 Super. Ct. No. PA089685)

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, 
2

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)).
3

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.
4

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.
5

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 
6

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.
7

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.
8

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.
9

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 
10

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.

8 S.C. identified the gun as the one depicted in People’s 

Exhibit 59.
11

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. reentered 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 
12

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.
13

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.
14

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.
15

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. 
16

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.
17

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, 
18

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 
19

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 
20

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.)
21

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.
22

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 lowlevel 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 nongang 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 gangrelated. He had contact with and interviewed Humphrey 

Boys gang members in connection with his homicide cases. 
23

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 shotcaller 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 
24

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 nongang 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.
25

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 
26

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.
27

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 
28

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.)
29

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.