Filed 7/15/13 P. v. Hernandez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063465
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11902241)
                   v.

JUAN CARLOS HERNANDEZ,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James M.
Petrucelli, Judge.
         Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Kane, J. and Peña, J.
       Juan Carlos Hernandez appeals from a conviction for domestic abuse and resisting
arrest. He was sentenced to a term of 11 years because he had prior convictions for
domestic abuse, had served a prior prison term, and had a prior conviction that
constituted a strike.
       The only issue is whether he received ineffective assistance of counsel when trial
counsel intended to exercise a preemptory challenge on a juror, but inadvertently failed to
do so. We conclude, even if we were to assume trial counsel‟s performance was
deficient, Hernandez cannot establish he suffered any prejudice from the omission.
Accordingly, we affirm the judgment.
                        FACTUAL AND PROCEDURAL SUMMARY
       The charges
       Hernandez was charged with two counts of inflicting corporeal injury on a spouse,
in violation of Penal Code section 273.5, subdivisions (a), (e)(1)1 and one count of
misdemeanor resisting arrest, in violation of section 148, subdivision (a)(1). In addition,
the information alleged that because Hernandez had suffered prior convictions for
violating section 273.5, subdivision (a) within the preceding seven years, he was subject
to increased punishment pursuant to section 273.5, subdivision (e). Finally, the
information alleged that Hernandez had suffered a prior conviction that constituted a
strike within the meaning of section 667, subdivisions (b)-(i).

       1All   further statutory references are to the Penal Code unless otherwise stated.
        The information charged Hernandez with violating section 273.5, subdivision
(e)(1), and the abstract of judgment reflects Hernandez was convicted of violating section
273.5, subdivision (e)(1). Both documents are incorrect. The crime of domestic abuse is
codified in section 273.5, subdivision (a). Subdivision (e) is not a substantive crime. The
information should have charged Hernandez with violating subdivision (a), and also
alleged he was subject to increased punished pursuant to subdivision (e)(1). We will
order the trial court to correct the abstract of judgment to indicate that Hernandez was
convicted of violating subdivision (a) and found to have met the increased punishment
criteria of subdivision (e)(1).



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       The testimony
       The two felony allegations arose out of conflicts between Hernandez and Vivian
Centeno. The two were cohabitating at the time of the incident. Centeno testified that
she had a poor memory and could not remember much of what had occurred on the date
of the incident. She did recall that Hernandez wanted her attention, but she was working
under her vehicle and did not want to be bothered. Hernandez grabbed her leg to get her
attention. She apparently called out to a friend, Stephanie Trevino, and asked her to call
the police. Centeno did not think Trevino would do so. Centeno spoke with the police
when they arrived but could not recall what she had said to them. She was certain,
however, that Hernandez did not hurt her in any manner, and any marks on her body were
the result of a medical condition or hurting herself while working on her vehicle.
       The prosecutor played for the jury a recording of a phone conversation between
Centeno and Hernandez that occurred after Hernandez was arrested. During the phone
conversation, Hernandez and Centeno proclaimed their love for each other. In other
portions of the conversation, Centeno made statements that could be interpreted as
suggesting she would help Hernandez avoid a jail term.
       Trevino testified she was goods friends with both Hernandez and Centeno and was
living with them on the date of the incident. Trevino did not see Hernandez hit Centeno
on that date or any other date. Centeno did ask her to call the police on that date, but
Trevino did not know why. Hernandez was with Centeno at the time, but everything
appeared normal. When Centeno repeated her request, Trevino went across the street and
called the police.
       Fresno Police Officer Phia Vang responded to the scene on the date of the incident
and interviewed Centeno. Centeno appeared to be upset and stated she had been
assaulted. She had bruises on her arms and a fresh scratch on the side of her face.
       Centeno described the following events to Vang. Centeno was working under her
truck when Hernandez grabbed her leg and pulled her out from under the truck.

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Hernandez placed his arm around her neck and then tried to pull her into the house.
Centeno struggled with Hernandez and held onto the vehicle in an attempt to avoid being
taken into the residence. Hernandez grabbed her arms and pushed her into the residence.
Centeno ran into her son‟s bedroom. Hernandez followed her, so Centeno ran into her
bedroom and yelled for Trevino to call the police. Hernandez left the residence,
departing through the alley.
       When Vang asked Centeno about a bruise that appeared to be older, Centeno
stated it probably came from an altercation between Hernandez and herself that had
occurred the day before. Centeno stated Hernandez became upset because Centeno was
talking to another man. Hernandez grabbed her in a bear hug and threw her onto her bed.
He then pointed a pocketknife at Centeno before departing.
       While Vang was interviewing Centeno, Fresno Police Officer Felipe Lucero
located Hernandez a short distance away from the residence. Lucero pointed his “less-
lethal” beanbag shotgun at Hernandez and ordered Hernandez to the ground. Hernandez
ran. Lucero ordered Hernandez to stop. When Hernandez did not do so, Lucero fired a
beanbag, striking Hernandez on the wrist. Hernandez continued running. Lucero shot
three more beanbags at Hernandez, striking him at least once. Lucero‟s partner then
began pursuing Hernandez on foot and eventually detained him.
       The People presented an expert witness to discuss battered woman‟s syndrome in
general, and the parties stipulated to Hernandez‟s prior convictions for domestic violence.
       Verdict and sentencing
       The jury convicted Hernandez of one count of domestic violence and one count of
resisting arrest. The jury found Hernandez not guilty of the second count of domestic
violence. Hernandez admitted he had one conviction that constituted a strike within the
meaning of section 667, subdivisions (b)-(i) and had served a prior prison term within the
meaning of section 667.5, subdivision (b) as alleged in the complaint.



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       The trial court imposed an aggravated term of five years for the domestic violence
conviction and then doubled that term because of the strike prior. It added one year
because Hernandez had served a prior prison term, for a total term of 11 years.
                                       DISCUSSION
       The only issue in this case is whether Hernandez‟s counsel was ineffective at trial.
The sole basis of this claim is an assertion that counsel forgot to exercise a preemptory
challenge on the juror in seat No. 7 (Juror No. 7) after the trial court denied counsel‟s
motion to excuse him for cause.
       The standard of review for an ineffective assistance of counsel claim is well
established. A defendant is entitled to a new trial if he received ineffective assistance of
counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.)
       “Establishing a claim of ineffective assistance of counsel requires the defendant to
demonstrate (1) counsel‟s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel‟s
deficient representation prejudiced the defendant, i.e., there is a „reasonable probability‟
that, but for counsel‟s failings, defendant would have obtained a more favorable result.
[Citations.] A „reasonable probability‟ is one that is enough to undermine confidence in
the outcome. [Citations.]
       “Our review is deferential; we make every effort to avoid the distorting effects of
hindsight and to evaluate counsel‟s conduct from counsel‟s perspective at the time.
[Citation.] A court must indulge a strong presumption that counsel‟s acts were within the
wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference
is not abdication; it cannot shield counsel‟s performance from meaningful scrutiny or
automatically validate challenged acts and omissions. [Citation.]” (People v. Dennis
(1998) 17 Cal.4th 468, 540-541.)
       Factual support for the claim exists in the record because after the jury was
impaneled, and before testimony was taken, counsel moved for a mistrial on the basis that

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she had intended to use one of her preemptory challenges on Juror No. 7 after her motion
to dismiss him for cause was denied. The trial court denied the motion.
          During voir dire, Juror No. 7 stated he was an attorney and he had three relatives
connected to law enforcement -- an aunt and uncle who were both retired from the
Merced County Sheriff‟s Office and a cousin who was employed as a deputy sheriff in
San Diego County. Juror No. 7 also had a very close friend who, until recently, was a
prosecutor in the Fresno County District Attorney‟s Office. Finally, he explained he was
an attorney in private practice. Approximately 50 percent of his clients were employed in
law enforcement or as correctional officers, with the majority of the matters related to
employment issues.
          Juror No. 7 denied that his relationship with the former prosecutor would affect his
ability to be fair and impartial and stated he would be able to judge the testimony of
police officers the same as he would any other witness. Nor would the the fact that he
had relatives who were employed in law enforcement cause him any “difficulties.”
Counsel received consistent responses when she questioned Juror No. 7 about these
issues.
          Hernandez asserts counsel‟s failure to exercise a preemptory challenge to excuse
Juror No. 7 constituted ineffective assistance of counsel. Since counsel admitted this
omission during trial, we accept for the sake of this appeal that the omission was
inadvertent.
          This omission, however, does not establish ineffective assistance of counsel. Even
if we were to assume, for the sake of argument, that the omission resulted in deficient
performance by counsel, Hernandez still must establish that had counsel used a
preemptory challenge on Juror No. 7, there is a reasonable probability he would have
obtained a more favorable result. This is a showing Hernandez cannot make.
          Hernandez relies on essentially two facts in his attempt to establish prejudice.
First, he points out that Juror No. 7 was voted to be the foreperson of the jury and

                                                6.
presumably was able to influence the other jurors. Second, he points out that the
prosecution‟s entire case was based on the jury deciding who was more believable --
victim Centeno or Police Officer Vang. Hernandez asserts that because Juror No. 7 had
numerous clients who were police officers, he must have been convinced that Vang was
more truthful than Centeno.
        This entire argument is based on speculation, not evidence. There is nothing in the
record that suggests Juror No. 7 was predisposed to believe Vang over Centeno. Indeed,
Juror No. 7 stated he would not be so predisposed, so this suggestion directly contradicts
Juror No. 7‟s sworn testimony.
        Second, there is nothing in the record to suggest Juror No. 7 had any influence
over any of the other jurors. The jurors were instructed to “decide the case for yourself,
but only after you have discussed the evidence with the other jurors.” Since we presume
the jury followed the instructions (People v. Williams (2010) 49 Cal.4th 405, 469), we
presume each juror faithfully fulfilled his or her duty and was not influenced by Juror No.
7. The fact the jury acquitted Hernandez on count 2 shows the jurors were swayed by the
evidence and not by any perceived bias or special influence on the part of Juror No. 7.
        Finally, the evidence against Hernandez on count 1 was overwhelming. His past
convictions demonstrated a disposition to commit domestic violence. Centeno stated, in
essence, that she would lie for Hernandez because she was in love with him. The bruises
observed by Vang were consistent with domestic violence. Moreover, expert testimony
explained that it was not uncommon for victims of domestic violence to recant their
accusations. Each of these reasons makes it impossible for Hernandez to establish any
possibility that he would have achieved a better result if Juror No. 7 had not been on the
jury.
        We are not swayed by the fact the jury requested the court reporter read back
Vang‟s testimony and the jailhouse conversation between Centeno and Hernandez. The
request could have been related only to the second domestic violence charge, of which

                                             7.
Hernandez was found not guilty, and not to the charge of which Hernandez was
convicted. Once again, Hernandez asks us to engage in speculation to reach the result he
wishes. This we will not do.
                                     DISPOSITION
      The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment to reflect the crime of which Hernandez was convicted and to
forward a copy of the corrected abstract of judgment to all appropriate agencies.




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