Filed 11/14/14 P. v. Hernandez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065946

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. RIF10003046,
                                                                                     RIF10004526)
ALBERT PAUL HERNANDEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Riverside County, Richard T.

Fields, Judge. Affirmed.

         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Albert Paul Hernandez of attempted murder (Pen. Code,1

§ 664/187, subd. (a), count 1); assault with a deadly weapon (§ 245, subd. (a)(1), count

2); active participation in a street gang (§ 186.22, subd. (a), counts 3, 5); and second

degree robbery (§ 211, count 4). It found true allegations that the attempted murder was

willful, deliberate and premeditated. Hernandez personally used a deadly and dangerous

weapon in committing it (§§ 12022.7, subd. (a); 1192.7, subd. (c)(23)) and personally

inflicted great bodily injury (§§ 12022.7, subd. (a); 1192.7, subd. (c)(8)); in committing

the assault, Hernandez personally inflicted great bodily injury (§§ 12022.7, subd. (a);

1192.7, subd. (c)(8)); and in committing the robbery he personally used a deadly and

dangerous weapon (§§ 12022.7, subd. (a); 1192.7, subd. (c)(23)).

       The court sentenced Hernandez to state prison for an indeterminate term of life

with the possibility of parole and a total determinate term of 8 years as follows: 4 years

on the attempted murder conviction and its enhancements and a consecutive term of 4

years on the robbery conviction and its enhancements. The court dismissed the gang

convictions in the interest of justice under section 1385.2

       Hernandez contends: (1) under Evidence Code section 1101, subdivision (b), the

court prejudicially erred by admitting evidence of his uncharged prior juvenile

1      All statutory references are to the Penal Code unless otherwise stated.

2      The court explained it dismissed the gang convictions because it had instructed the
jury regarding the defendant directly committing the crimes but without identifying a
second gang member with whom Hernandez had worked in concert. After the verdict,
but before sentencing, the California Supreme Court decided People v. Rodriguez (2012)
55 Cal.4th 1125, holding that a gang member does not violate section 186.22 if he acts
alone in committing a felony.
                                              2
adjudication; further, such evidence was prejudicial under Evidence Code section 352;

(2) his attempted murder conviction should be reversed because of prejudicial spillover

from evidence regarding his gang membership presented to prove the dismissed gang

convictions; and (3) there was cumulative error. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

Attempted Murder Conviction

       On June 7, 2010, Harry Schlitz, Jr. was waiting at a bus stop in the City of Corona

when Hernandez approached asking what Schlitz was doing there. Schlitz sought

clarification of the question by repeating it to Hernandez. That interaction lasted

approximately 10 seconds, and Schlitz did not remember what happened immediately

afterwards. One eyewitness saw Hernandez stab Schlitz. That witness and another one

testified that as Schlitz lay on the ground, Hernandez kicked him before walking away.

One of the eyewitnesses screamed at Hernandez to stop attacking Schlitz.

       Schlitz was taken to the hospital, where he stayed one week. He was unable to

work for a month and a half. Schlitz required surgery for 24 wounds he received to his

skull, nose, neck, esophagus, chest and finger. At the time of trial, his injuries still hurt.

Robbery Conviction

       On June 12, 2010, Hernandez and two companions approached Daniel Ruiz and

threateningly asked him what he carried in his pocket. Ruiz said it was a phone, and

Hernandez took it out of Ruiz's pocket without permission. Ruiz's friend told Hernandez

to return the items, and fought with Hernandez briefly. Afterwards, Hernandez dropped



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the robbed items and left, holding a knife threateningly. Both Ruiz and his friend

identified Hernandez at the curbside shortly after the incident, and again at trial.

Hernandez's Prior Uncharged Crime

       At the start of trial, the People moved in limine to admit into evidence a detective's

testimony regarding a robbery that Hernandez had committed as a juvenile in 2007. The

court summarized the facts of the juvenile adjudication: "[It] involves [Hernandez] and

two others walking . . . [Miguel Barrios] told [Hernandez] that this other person by the

name of Gomez had been talking to [Barrios'] girlfriend. Gomez approached them and

said, 'What's up?' . . . [Hernandez] asked him, 'Where are you from?' And Gomez

replied, 'From L.A.' [Hernandez] then told him, . . . 'Fuck L.A.' [Hernandez] then told

him to empty out his pockets. And [Gomez] then handed him his iPod. When

[Hernandez] saw the cell phone also, he asked for the cell phone. And then Gomez . . .

started running. Miguel Barrios caught him, threw him to the ground, and [Hernandez]

started punching Gomez in the back of the head."

       The court had earlier ruled that certain evidence regarding Hernandez's youth was

admissible.3 In light of that ruling, the court explained the probative value of



3        In admitting a photograph that identified Hernandez as a 16-year-old, the court
ruled: "I understand why the People want it excluded because it could be a tremendous
appeal to sympathy to say he's 16, particularly if there's no purpose for bringing that
forward. [¶] I actually think there is a purpose, because the jury has to determine
whether this gentleman specifically, he had a specific intent, whether he premeditated and
deliberated. [¶] . . . I think it would be hard-pressed for us to say that age has no
relevance or consideration in that at all. Certainly I don't think we expect the same type
of premeditation and intent from a 16-year-old. It doesn't even require an expert opinion.
It's just a matter of common knowledge. You don't necessarily get the same type of
                                              4
Hernandez's prior juvenile adjudication: "In this case, looking at it, it looks to me like it's

very probative because the court is allowing evidence of [Hernandez's] age at the time of

the offense, at the strong behest of the defense, to show that perhaps [Hernandez] didn't

have the requisite specific intent or did not premeditate or deliberate. [¶] In other words,

the [defense] argument is, 'look, [Hernandez is] young, he really didn't think about it that

much.' But I think the evidence actually gives the People an opportunity to rebut that, to

say [Hernandez] did think about it, he does think about these kinds of things, even though

he may be young. Because it looks to me like when [Hernandez is ] asking 'where are

you from,' it looks like he's deliberating. He's making—he's premeditating. He's making

a decision what he's going to do depending upon where you're from. It looks like he's

both premeditating and deliberating. If you're not where you belong, he's going to take

action against you."

       The court conducted a prejudice analysis under Evidence Code section 352, noting

Hernandez's juvenile adjudication was far less inflammatory than the charges in this case:

"I don't see any problem with confusion or undue time consumption here. It won't take

that long . . . . The question of [Hernandez's] intent and whether or not he premeditated

and deliberated are so critical in this case, its probative value will outweigh any prejudice

attached."

careful thought from a 16-year-old than you might from someone 35 or 40 years of age.
[¶] It is hard for me to imagine that his specific age has no relevance with respect to
specific intent, and whether he premeditated and deliberated. I think it actually does have
an impact and certainly should be considered. [¶] I am concerned about the fact the jury
saying [sic] he's 16. Maybe some type of nullification just based on his age or
inappropriate sympathy the People are afraid about. [¶] At the same time, I don't feel
comfortable in any way saying it's not relevant at all."
                                               5
       Over Hernandez's objection, the court admitted the testimony on grounds it was

probative regarding Hernandez's motive, intent, and deliberation. Therefore, Corona

Police Department Officer Michael Nielsen testified regarding the facts of Hernandez's

juvenile adjudication for robbery, which occurred when Hernandez was 13 years old.

Hernandez had discussed the robbery in an interview with the Detective Nielsen. The

court instructed the jury regarding the proper use of the uncharged crime testimony. 4

       Corona Police Department Officer Robert Newman testified as an expert regarding

the Corona Varrio Locos criminal street gang, whose primary activities included murder,

attempted murder, assault with deadly weapons, robberies, batteries, vandalism and

vehicle thefts. Officer Newman identified Hernandez as a gang member based on his

gang moniker, photos in which Hernandez appeared wearing the gang's bandana, postings



4       Specifically, the court instructed the jury: "You may consider this evidence only
if the People have proved by a preponderance of the evidence that the defendant, in fact,
committed the uncharged offense. Proof by a preponderance of the evidence is a
different burden of proof than proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not that the fact
is true. If the People have not met this burden, you must disregard this evidence entirely.
If you decide that the defendant committed the uncharged offense, you may, but are not
required to, consider that evidence for the limited purpose of deciding whether or not:
the defendant acted with the intent to kill in this case; the defendant had a motive to
commit the offenses alleged in this case; the defendant premeditated and deliberated the
offense alleged in count 1 of this case. Do not consider this evidence for any other
purpose except for the limited purpose of evaluating the expert's opinion as to whether or
not defendant was an active participant in a criminal street gang as alleged in counts 3
and 5. Do not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime. If you conclude that the defendant committed the uncharged
offense, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of any of the crimes or
allegations charged in this case. The People must still prove each charge and allegation
beyond a reasonable doubt."
                                             6
and photographs on Hernandez's social website, letters found at his house, and interviews

between police and Hernandez between 2007 and 2010. Officer Newman testified that in

the 2007 incident, Hernandez asked the victim, "Where are you from?" That question

was significant because "there was a disrespect issue that these three gang members now

had to bring back some of that respect they thought they had lost by an outsider talking to

one of their girlfriends."

                                      DISCUSSION

                                             I.

       Conceding he stabbed Schlitz, Hernandez contends the trial court prejudicially

erred by admitting evidence of his prior juvenile adjudication under Evidence Code

section 1101, subdivision (b) to show motive, intent to kill, premeditation and

deliberation.5

       "Evidence of uncharged crimes is admissible to prove identity, common design or

plan, or intent only if the charged and uncharged crimes are sufficiently similar to support

a rational inference of identity, common design or plan, or intent." (People v. Carter

(2005) 36 Cal.4th 1114, 1147.) Admissibility depends on the materiality to the current

offense of the fact sought to be proved, the tendency of the uncharged act to prove the


5       At the outset of closing argument, defense counsel told the jury: "What I'm about
to tell you may shock some of you. You may not hear this from defense attorneys. Mr.
Hernandez is, in fact, guilty. He is guilty of assault with a deadly weapon. He was
present. He did, in fact stab Mr. Schlitz. That's been proven to you beyond a reasonable
doubt." Defense counsel continued: "But now your job gets a little more difficult. It's
whether or not he had the intent to kill. That's what you must decide. Whether or not it's
been proven to you."

                                             7
material fact, and whether there is any other rule requiring exclusion of the uncharged

act. (People v. Walker (2006) 139 Cal.App.4th 782, 796.)

       The least degree of similarity between the uncharged act and the charged offense

is required in order to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The

recurrence of similar results tends "to negative accident or inadvertence or self-defense or

good faith or other innocent mental state, and tends to establish (provisionally, at least,

though not certainly) the presence of the normal, i.e., criminal, intent accompanying such

an act." (Ibid.) In order to be admissible to prove intent, the uncharged misconduct must

be sufficiently similar to support the inference that the defendant " ' "probably harbor[ed]

the same intent in each instance." ' " (Ibid.)

       "In addition to its relevance to an issue other than predisposition or propensity, to

be admissible under [Evidence Code] section 1101, subdivision (b), the probative value

of the evidence of uncharged crimes 'must be substantial and must not be largely

outweighed by the probability that its admission would create a serious danger of undue

prejudice, of confusing the issues, or of misleading the jury.' " (People v. Walker, supra,

139 Cal.App.4th at p. 796, quoting People v. Kipp (1998) 18 Cal.4th 349, 371.)

       Evidence Code section 352 states in part that the court may exclude evidence if its

probative value is substantially outweighed by the probability its admission will create

substantial danger of undue prejudice. Prejudice is inherent whenever other crimes

evidence is admitted. (People v. Carter, supra, 36 Cal.4th at p. 1150, citing People v.

Ewoldt, supra, 7 Cal.4th at p. 404.) However, undue prejudice exists when the evidence

" 'uniquely tends to evoke an emotional bias against a party as an individual, while

                                                 8
having only slight probative value with regard to the issues.' " (People v. Robinson

(2005) 37 Cal.4th 592, 632, quoting People v. Crittenden (1994) 9 Cal.4th 83, 134.)

       "The weighing process under [Evidence Code] section 352 depends upon the trial

court's consideration of the unique facts and issues of each case, rather than upon the

mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th

1301, 1314.) On appeal, a trial court's resolution of these issues is reviewed for abuse of

discretion. (People v. Carter, supra, 36 Cal.4th at p. 1149.) It will not be disturbed on

appeal unless " 'the prejudicial effect of the evidence clearly outweighed its probative

value.' " (Jennings, at pp. 1314-1315, citing People v. Brown (1993) 17 Cal.App.4th

1389, 1396.) In the absence of a showing of such an abuse, we must affirm the lower

court's ruling. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

       Here, the court did not abuse its discretion in admitting testimony regarding

Hernandez's juvenile adjudication because Hernandez acted similarly in both instances.

In the juvenile case, Hernandez first asked where his victim was from, and upon hearing

he was from Los Angeles, Hernandez immediately expressed his disdain and proceeded

to rob him. Likewise, here, Hernandez first asked Schlitz what he was doing at the bus

stop. Upon not receiving a satisfactory response, Hernandez promptly stabbed Schlitz.

In both instances Hernandez carried out his intent to harm persons who were strangers to

him, who had not provoked him, and who did not answer his question to his satisfaction.

       In any event, any prejudicial effect of this evidence was negligible because the

prior offense was far less serious than the charged offense, did not involve violence, and

was not likely to inflame the jury. In addition, the jury was instructed to use the evidence

                                             9
for the limited purpose of deciding whether Hernandez was the person who committed

the offenses. There is no reason to question the normal presumption that the jury

understood and followed that instruction. (People v. Wilson (2008) 44 Cal.4th 758, 803.)

       We also note that there was abundant independent testimony to support the

attempted murder conviction. As Hernandez conceded at trial, identity was not an issue

in this case; therefore the critical question was his intent. The jury reasonably could have

inferred his intent to attempt to murder Schlitz from the fact that without provocation he

stabbed Schlitz 24 times in vulnerable parts of the body, kicked him, and left him injured

and bleeding on the ground. It is not reasonably probable Hernandez would have

obtained a different verdict absent the testimony regarding his juvenile adjudication.

       To the extent Hernandez claims the court's evidentiary ruling violated his due

process rights, we disagree. The evidence was properly admitted under Evidence Code

section 1101, subdivision (b) and there is no basis for the contention that admission of the

evidence violated defendant's due process rights and rendered his trial fundamentally

unfair. (People v. Rogers (2013) 57 Cal.4th 296, 331 [no due process violations when

evidence was material, probative, and properly admitted].)

                                             II.

       Hernandez contends his attempted murder conviction should be reversed because

of prejudicial spillover from evidence presented to prove the dismissed convictions

regarding his gang membership.

       In light of the charges of gang participation, the evidence of gang membership was

relevant to, and admissible regarding, those charged offenses. Evidence of a defendant's

                                            10
gang affiliation—including evidence of the gang's territory, membership, signs, symbols,

beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity,

motive, modus operandi, specific intent, means of applying force or fear, or other issues

pertinent to guilt of the charged crime. (People v. Hernandez (2004) 33 Cal.4th 1040,

1048.) Here, the fact the court dismissed the gang charges does not mean Hernandez was

prejudiced by the introduction of the gang testimony. As noted, overwhelming

independent evidence supported the jury's verdict regarding Hernandez's intent in

committing the attempted murder.

                                             III.

       We reject Hernandez's contention of cumulative error. In a close case, the

cumulative effect of multiple errors may be sufficient to cause the trial to have been

unfair and hence cause a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709,

726, overruled on other grounds by People v. Morante (1999) 20 Cal.4th 403, 415.)

Multiple errors may require reversal even when the errors, considered individually,

would not warrant the same conclusion. (People v. Jackson (1991) 235 Cal.App.3d 1670,

1681.) If, in the absence of the cumulative errors, it is reasonably probable that the jury

would have reached a result more favorable to a defendant, the decision must be reversed.

(People v. Holt (1984) 37 Cal.3d 436, 459, superseded by statute on another ground as

stated in People v Muldrow (1988) 202 Cal.App.3d 636, 645.) These principles do not

apply as we have found no error.




                                             11
                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




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