THE PEOPLE v. ERIC HERNANDEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Eric Hernandez appeals from a judgment of conviction for first degree murder.   He contends the trial court erred in not giving a juror unanimity instruction.   He also contends a $10 DNA fee should be stricken.   We affirm the convictions with instructions to strike the fee.

STATEMENT OF THE CASE

An information charged appellant with murder (Pen.Code, § 187).¹  It was alleged that appellant personally and intentionally used, discharged, and caused great bodily injury with a firearm in the commission of the offense (§ 12022.53, subds.(b), (c) & (d)).  Appellant pled not guilty and denied the allegations.

A jury found appellant guilty as charged, found the murder to be in the first degree, and found the firearm allegations true.   The trial court sentenced appellant to 50 years to life, and imposed various fees.   The abstract of judgment reflected that a $10 DNA fee was imposed.   Appellant filed a timely notice of appeal.

STATEMENT OF THE FACTS

On February 19, 2008, German Garay was shot and killed in front of a bakery in Los Angeles.   A medical examiner opined that Garay died from multiple gunshot wounds.   Bullets and bullet fragments from Garay's body were determined to have been fired by a .22–caliber weapon.

A percipient witness, Juventino Sanchez, testified that at around 4:30 p.m. that day, he was cleaning the backyard of his home when he heard three or four gunshots.   He turned in the direction of the shots and saw a light brown or gray Honda Civic with “deteriorated” paint driving by the scene.   Sanchez also saw a man sitting on the ground with his back against a wall.   The man tried to stand up, but fell and did not move again.   Sanchez called 911, and a recording of his call was played for the jury.

Police eventually located the vehicle.   Paperwork found inside the car indicated that appellant was the owner.   Police also found a spent .22–caliber casing in the frame of the vehicle.   No casings were found on the ground in or near the crime scene.

Police also learned that Garay was one of Adella Nava's two boyfriends.   Her other boyfriend was Jose Hernandez, appellant's brother.   One of Nava's two daughters testified that Jose and Nava had a couple of arguments about Garay.

Elizabeth Cazares, Nava's other daughter, testified that on the morning of the murder, she had a series of telephone conversations with her mother and with Jose's friend, Danny.   Her mother told her that there had been an argument with Garay and that he had pushed her.   Jose and Danny then had a fight with Garay, and the fight ended when Garay left.   Cazares spoke with Danny, who told her that he and Jose were going to a liquor store to buy some beers.   Cazares called Danny an hour later because she had a “bad feeling.”   Danny told her they were still at the liquor store.   Cazares told him not to lie because the liquor store was only two blocks away from Nava's house.   Danny hung up.   Cazares called Danny a third time.   She told him to tell her “what they were going to do” and “that they better not do nothing to [Garay].”   Danny replied that they were not going to do anything to him.

After that call, Cazares took a taxi to her mother's house.   She arrived sometime between 4:00 and 5:00 p.m. Along the way, she passed a scene where uniformed people were picking up a body in front of a bakery.   When she arrived at the house, she said, “Stupid, German.   Why did he say this?”   Her mother told her, “Don't say that.   He's dead already.”   Cazares also testified that appellant's family tried to pressure her into keeping silent about her suspicion that Jose was involved in the murder of Garay.

Appellant, Jose, and Nava were arrested July 11, 2008.   Appellant was interviewed by Detectives Jose Carrillo and Lisa Governo, and the videotape of the interview was played for the jury.   In the interview, appellant stated that on the morning of February 19, 2008, he was at his mother's house when he received a call from his brother, Jose. Jose asked him to come to Nava's house because he and Nava wanted to speak with appellant.   When appellant arrived, Nava asked him how much he would “charge” for “eliminat[ing]” Garay.   Nava and Jose told appellant that Garay had hit them and had tried to kill Jose with a machete.   Appellant agreed to eliminate Garay, and Nava told him she would pay him $200.

Appellant stated that he, Jose, and Danny then left in his Honda Civic to look for Garay.   Danny was driving the vehicle, and appellant was armed with a .22–caliber rifle.   The three men located Garay outside a bakery.   He was on the telephone at a phone booth with his back turned to them.   Danny pulled up to the bakery, and appellant fired two rounds at Garay.   Appellant stated he was trying to scare Garay and did not intend to kill him.   When the men returned to Nava's house, Nava paid him $200 in cash for shooting Garay.   Appellant stated that he felt guilty about the shooting.   He said, “I did what I did.”   He also said that, “Hopefully I get off from this one soon, so I can be with my son.”

Appellant testified in his defense.   He admitted owning a gray Honda Civic, but stated that he had loaned it to Jose that day.   On the day of the shooting, he worked at a pizzeria until leaving in the afternoon and going home to shower.   After showering, he watched a movie and then walked his mother and little sister to a bus stop.   Afterwards, he and his girlfriend went shopping until they came home around 5:00 p.m. They watched a movie before going to sleep early because his son sleeps at 7:00 p.m.

Appellant also testified that Jose returned the car to him the next day and told him about the shooting of Garay.   Appellant further testified that he lied to the police when he claimed responsibility for the shooting in order to protect his brother.   He knew the details about the shooting based upon what his brother had told him.   Appellant acknowledged receiving money from Nava, but explained that it was for hiring a Mariachi band for her birthday party, not for shooting Garay.   He conceded he had no receipt from the band.   Appellant also stated that when he was arrested, Detective Carrillo told him that he should tell the truth to help himself out.   Appellant stated that Detective Carrillo told him that appellant's son would be taken away if “I don't help myself out.”   Detective Carrillo subsequently testified.   He denied threatening or making any promises to appellant and denied knowing that appellant had a son.

The defense produced witnesses who supported appellant's alibi, including his girlfriend and two of his sisters.   In addition, the defense called Mayra Gurado, who lived above the bakery.   She testified she saw another man, who got out of the Honda, shoot Garay.  (RT 1260–1263.)   Detective Carrillo testified that he investigated and exonerated this man of any involvement in the murder of Garay.

DISCUSSION

Appellant contends (1) that the trial court erred in not instructing the jury that it was required to unanimously agree on a theory of murder, and (2) that the $10 DNA fee should be stricken.   We address each contention in turn.

I. Juror Unanimity Instruction

The prosecutor argued that appellant was guilty of first degree murder based on either of two theories:  premeditation or drive-by shooting.   The first theory was supported by evidence that appellant was paid $200;  the second theory by evidence that appellant shot and killed Garay while inside the Honda Civic.

The jurors were instructed that they were not required to agree as to the theory of murder.   Appellant contends this constituted reversible error, as a drive-by shooting is factually distinct from premeditated and deliberate first degree murder because to find the former, the jury must specifically find that the shooter was in a motor vehicle.   We disagree that the possible factual differences between a drive-by shooting and a premeditated and deliberate murder necessarily require that the jury be given a unanimity instruction.

In Schad v. Arizona (1991) 501 U.S. 624, 637, the United States Supreme Court held that a State may determine that “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime.”   In that case, Arizona law provided that “ [a] murder which is perpetrated ․ by any other kind of wilful, deliberate or premeditated killing, or which is committed ․ in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree.”  (Id. at p. 629, fn. 1.) In light of Arizona law, the court rejected appellant's contention that he could be convicted of first degree murder only if the jury unanimously agreed either that he committed the murder with premeditation or that he committed the crime while in the course of committing a robbery.  (Id. at p. 639.)   According to the court, “a first-degree murder conviction under jury instructions that did not require agreement on whether the defendant was guilty of premeditated murder or felony murder” was constitutional.  (Id. at p. 627.)

California has determined that “[a]ll murder which is perpetrated ․ by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking ․, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.” (§ 189.)   The California Supreme Court in People v. Nakahara (2003) 30 Cal.4th 705, 712, noted that it was well-established that “jurors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation” in order to convict a defendant of first degree murder.   (Ibid.) The court rejected the argument that recent cases such as Apprendi v. New Jersey (2000) 530 U.S. 466, suggested a different result.

Here, the prosecutor's two theories of murder—drive-by shooting and premeditated and deliberate murder—are merely alternative means of committing the single offense of first degree murder under California law.  (See § 189 [“All murder which is perpetrated ․ by any other kind of willful, deliberate, and premeditated killing ․ or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.”].) Thus, the jury could convict appellant of first degree murder even if, for example, some jurors believed that appellant got out of the vehicle to shoot Garay.²  Accordingly, the trial court did not err by failing to give a juror unanimity instruction.

II. $10 DNA Fee

Appellant contends the $10 DNA fee listed in the abstract of judgment should be stricken because the trial court did not orally impose that fee and because the fee was unauthorized by any statute.   Respondent agrees.  (RB at p. 21.)   Accordingly, the $10 DNA fee is stricken.

DISPOSITION

The abstract of judgment shall be corrected to remove the $10 DNA fee.   As corrected, the judgment is affirmed.   The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. The information also charged Jose Hernandez with murder.   Appellant's case was severed from Jose's case.All further statutory citations are to the Penal Code, unless otherwise stated..  FN1. The information also charged Jose Hernandez with murder.   Appellant's case was severed from Jose's case.All further statutory citations are to the Penal Code, unless otherwise stated.

FN2. We note there is no evidence suggesting the jurors were not unanimous in their factual findings.   Moreover, based upon the evidence in this case, the jury could unanimously find that appellant was guilty under both theories of murder..  FN2. We note there is no evidence suggesting the jurors were not unanimous in their factual findings.   Moreover, based upon the evidence in this case, the jury could unanimously find that appellant was guilty under both theories of murder.

EPSTEIN, P. J. SUZUKAWA, J.