Filed 12/30/13 P. v. Hernandez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B244259

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA061371)
         v.

GIOVANNI HERNANDEZ,

         Defendant and Appellant.



         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.


                                  ________________________________
       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.

                                              2
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.4 The 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.

                                               3
       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.

                                              4
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.

                                             5
       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.

                                              6
       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.”

                                             7
       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.”




                                             8
        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 cross-
examination, 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.



                                             9
       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

                                            10
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

                                             11
(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.)



                                             12
       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

                                             13
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 “over-
proved” 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

                                             14
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.


                                             15
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 cross-
examinations of witness Edy and Hernandez’s family member defense witnesses for the
sole purpose of presenting inflammatory evidence of his gang membership and activities.

                                              16
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 photo-
graph 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.


                                              17
       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.

                                               18
        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-of-
court 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.

                                              19
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. . . .”

                                             20
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.”

                                             21
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.

                                             22
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

                                              23
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

                                             24
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-without-
parole 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

                                             25
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.




                                              26
       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.)




                                             27
                                 DISPOSITION
     The judgment is affirmed.




                                               BIGELOW, P. J.
We concur:


             RUBIN, J.




             GRIMES, J.




                                     28
