Filed 12/23/13 P. v. Hernandez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047223

         v.                                                            (Super. Ct. No. 09NF3157)

STEVEN SALVADOR HERNANDEZ,                                             OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed as modified.
                   Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
               An information charged Steven Salvador Hernandez, Jose Francisco Nuno,
and Rene Antonio Lobos with murder committed for the benefit of, at the direction of, or
in association with a criminal street gang. 1 A jury convicted Hernandez of second degree
murder and active participation in a criminal street gang, and found true the criminal
street gang enhancement. The trial court sentenced Hernandez to serve a total prison
term of 15 years to life.
               Hernandez challenges the trial court’s denial of his motion to suppress
DNA evidence obtained during the criminal investigation. He also contends the trial
court erred by imposing a parole revocation fine (Pen. Code, § 1202.45; all further
statutory references are to the Penal Code) in an amount greater than that imposed for the
restitution fine (§ 1202.4, subd. (b)) and by failing to stay sentence for active
participation in a criminal street gang (§ 654.). Finally, he requests certain modifications
to the abstract of judgment to accurately reflect the trial court’s imposition of sentence.
The Attorney General asserts the trial court correctly denied Hernandez’s motion to
suppress evidence, but concedes the remaining issues and we agree. Therefore, the
judgment is affirmed as modified.
                        FACTS AND PROCEDURAL HISTORY
               Joshua Rodriguez was stabbed and killed during a fight at a 2009
Halloween party at a home in La Habra. Hernandez, a member of the All West Coast
(AWC) criminal street gang, attended the party with several friends and fellow gang
members.
               After the stabbing, officers from the La Habra Police Department
responded to the scene and found 13 people, including Hernandez, hiding in the party
house. Hernandez and four others had what looked like blood on their clothing, and the



       1   Nuno and Lobos are not parties to this appeal.


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officers separated them from the other eight people in the house for a period of time at
the scene while they conducted their investigation.
              Eventually, all 13 individuals were transported from the crime scene to the
La Habra Police Department, which was about a mile away. Once there, the officers
seized Hernandez’s blood-stained clothing, took his statement, and collected fingerprints,
photographs, and a sample of his DNA. During his recorded interview, Hernandez
denied being an AWC gang member, and he denied any involvement in the fight. Nuno
and Lobos were arrested, but the other 11 people, including Hernandez, were driven back
to the crime scene.
              The morning after the party, a neighbor found a knife, clown mask, and
Pendleton jacket in his backyard. Rodriguez’s blood was found on pants Hernandez
surrendered the night of the incident and on the outside of the jacket, mask, and the knife
blade. Hernandez’s DNA was found on the inside of the jacket and mask.
              At trial, Matthew Garcia, one of Hernandez’s friends and fellow gang
members, testified in exchange for a favorable plea agreement in a separate criminal case.
According to Garcia, Hernandez brought a knife to the party, and a few days after the
party, Hernandez admitted stabbing Rodriguez. Hernandez also told Garcia he had drawn
the knife just to scare Rodriguez, who would not stop fighting with a group of AWC
members, but Rodriguez had been accidently stabbed in the neck because he moved
suddenly. Hernandez claimed he had disposed the knife and mask by rolling them into
his jacket and throwing them over a fence.
              The prosecution’s gang expert, La Habra Police Officer Michael Costanzo
testified Hernandez was an active member of AWC, and that he was providing backup to
other AWC gang members when he stabbed and murdered Rodriguez.




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Motion to Suppress
              Hernandez filed a pretrial motion to suppress evidence of anything
“recovered or developed” from his DNA sample.2 At the suppression hearing, La Habra
Police Officer Timothy Eugene Shea testified that he was dispatched to an address in La
Habra on a report of an assault with a deadly weapon at approximately 12:30 a.m. on
November 1, 2009. When he arrived, Shea saw Rodriguez lying in the street, bleeding
profusely from his neck. Other officers from the La Habra Police Department had
already directed several people to sit on the curb in front of the house where the party
occurred. In addition, there were individuals walking and milling around.
              According to Shea, witnesses told the officers they had seen four to seven
gang members start a fight with Rodriguez in the street in front of the party house. They
also said that one of the gang members made a slashing motion at Rodriguez, which was
followed by blood spraying from Rodriguez’s neck. Rodriguez stumbled and collapsed
while his attackers ran back to the party house.
              Several uniformed officers, including Shea, went to the house to
investigate. The house was dark, but Shea heard people moving around inside. Officers
knocked on the front door, identified themselves, and directed everyone to come outside.
About 10 minutes later, 13 people came out a door in the back of the house. As they
walked by the officers to the front of the house, Shea noticed several of them had what
looked like blood on their clothing. These individuals were separated from the others and
directed to sit on the curb in front of the house.
              Around 3:00 a.m., Shea and two other officers asked the group of 13 if they
would voluntarily come to the police department to give statements. According to Shea,


       2 Hernandez also challenged aspects of the DNA and Forensic Identification
Database and Data Bank Act of 1998, as amended (the Act). (§§ 295, et seq.) The trial
court did not rule on this aspect of Hernandez’s motion, and we decline to discuss the Act
because it is unnecessary to do so in light of the issues presented.

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all of them agreed to go, and they were transported together in a van to the La Habra
Police Department, which was about a mile away. Shea testified none of the individuals
had been handcuffed before or after they were transported.
              La Habra Police Officer Eric Ocampo testified he was dispatched to the
area on a report of a fight. After talking to witnesses, Ocampo and other officers
approached a house in an attempt to secure it. None of the lights inside or out of the
house were lit.
              Ocampo knocked on the front door and identified himself as a La Habra
police officer. No one responded initially, but Ocampo heard people moving around
inside. He and several other officers waited for a few minutes, and eventually 13 people
came out of a sliding glass door in the back of the house. The officers patted them down
for officer safety, but Ocampo did not recall seeing anyone being placed in handcuffs.
He and the other officers moved the group from the backyard to the front of the house.
He testified that he told everyone “they were not under arrest, that we were conducting an
investigation as to what had taken place out in front of the house.”
              La Habra Police Sergeant Jason Forgash testified he was at the La Habra
Police Department when a group of 13 individuals arrived together. Some of the 13
individuals were told to wait in the covered sally port area of the department while others
were inside in a briefing room. He told all 13 people “we’re obviously here conducting
an investigation. We want to get you out of here as quickly as possible. What we’d like
you to do is come in and meet with this gentleman. He’s going to photograph you.
Depending on if you have blood on your clothing, he may take some articles of clothing
and then we’re going to get a DNA swab from your cheek. It doesn’t hurt. There’s
nothing difficult about it. It will just take a few minutes. And we can get you out of here
and get you on your way.”
              Forgash explained his role at the station as being the person who directed
other officers and tried to “limit the chaos, to make sure everything gets done in an

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expedient fashion so we can get [the 13 individuals] all home because they’re all there
voluntarily.” He testified all of the individuals agreed to “it,” and that they were later
transported back to “where they needed to go.” Forgash did not recall any arrests being
made that night, although the parties stipulated Nuno and Lobos had been arrested that
night. Forgash testified he could not recall the exact wording he used with the
individuals to advise them of what the officers wanted to do, but he would have explained
the purpose of the DNA test if anyone had asked.
              La Habra Police Officer William Irwin had also been at the police station
on the night of the shooting. He testified, “we were in the process of interviewing
everybody that was — that we had at the police station regarding the incident. And I
asked [Hernandez] if he could follow me to the interview room, where he’d be
interviewed concerning the incident.” After about an hour interview, Hernandez was led
back to the sally port. Irwin did not know if Hernandez had been handcuffed at the
scene, but he was not handcuffed at the police station.
              Hernandez also testified at the suppression hearing. He said a group of five
people, those with the suspected blood stains on their clothing, had been handcuffed and
told to sit on the curb in front of the house. The remaining eight people in the house were
detained in the backyard for about an hour before being transported as a group to the
police station. Hernandez claimed he and the other four individuals with suspected blood
on their clothing remained at the scene. Shortly afterward, an officer removed the
handcuffs and told Hernandez he would be taken to the police station to get his statement.
              Hernandez said he was transported to the police station in the back of a
police cruiser, and not in a van as the police officers had testified. Once he arrived at the
police station, police officers directed him to sit in the sally port area on a bench. He was
alone when he first sat down, but other people soon joined him. Then, after another hour
passed, he was taken into an interview room. After the interview, Hernandez was walked
to another building where someone took his picture, asked him to remove his clothing,

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ran a Q-tip around his fingers, and took a swab from his mouth. Afterward, he was
returned to the bench in the sally port.
              Hernandez testified no one asked him if he would be willing to go the
police station, they simply told him he would be transported. He also said no one
explained the DNA test to him. In fact, he thought the officer swabbed his mouth to
determine if he was under the influence of anything.
              At the conclusion of the hearing, the court made the following factual
findings: (1) Police officers were dispatched to a report of an assault with a deadly
weapon; (2) when they arrived, Rodriguez was bleeding from the neck and either dead or
in the process of dying; (3) two civilian witnesses told the officers that a group of
between four to seven gang members jumped Rodriguez; (4) one of the attackers made a
slashing motion at Rodriguez’s throat that precipitated blood spraying from a neck
wound; (5) all the attackers ran back to the party house; (6) the officers knocked and gave
notice but the suspects did not come out for between five to 15 minutes; (7) when they
did come out of the house, five of the 13 individuals had blood stains on their clothing;
(8) Hernandez, who was one of the five with blood stains on his clothing, was handcuffed
for a short period of time; (9) all 13 detainees were told they were not under arrest; (10)
they were asked if they would voluntarily go to the police station to be interviewed; (11)
all of the participants agreed; (12) Hernandez and the others voluntarily remained at the
police station for a period of time until they were interviewed and evidence collected
before being released.
              Based on these factual findings, the trial court held that police officers had
reasonable cause to detain Hernandez at the scene. Referring to Florida v. Royer (1983)
460 U.S. 491, People v. Celis (2004) 33 Cal.4th 667, In re Tony C. (1978) 21 Cal.3d 888,
and United States v. Sharpe (1985) 470 U.S. 675, 686-687, the court stated, “given the
fact we have a murder victim in the street, two eyewitness statements, and blood found
on several subjects, persons, including Mr. Hernandez, the court finds that when the

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officers considered the totality of the circumstances, they had plausible ground to believe
Mr. Hernandez may have committed a crime. [¶] This was sufficient cause to detain him
while they secured the residence, searched the many subjects, and made arrangements to
interview the various witnesses.”
              As to whether Hernandez consented to go to the station to be interviewed
and to submit to various evidentiary collection procedures, the court found “nothing in
the record to contradict persuasively the officers’ respective accounts of the defendant
and others being uncuffed, told there were not under arrest, being asked to go to the
station and provide voluntary statements, and to consent to the collection of evidence.”
The court also relied on Hernandez’s own testimony to conclude his transportation to the
police station and cooperation with the officers once he arrived there was also done with
his consent under an objective test and considering the totality of the circumstances. (See
Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227-234, [when the subject of a search
is not in custody and the state would justify a search on the basis of consent, the Fourth
and Fourteenth Amendments require that it demonstrate that consent was in fact
voluntary]; Kaupp v. Texas (2003) 538 U.S. 626, 633-634 [suspect removed from home
in his underwear, taken to a crime scene, and then delivered to the police station]; United
States v. Mendenhall (1980) 446 U.S. 544, 558-559 [whether consent to accompany the
police is voluntary or the product of duress or coercion is to be determined by the totality
of the circumstances].)
              The court placed great weight on certain aspects of Forgash’s testimony.
Specifically, Forgash testified he requested, not ordered, the 13 people to submit to
various tests. He also stated the individuals were processed as quickly as possible so they
could be “transported . . . back to where they needed to go.” As the court concluded,
“[a]nd so it appears to the court from the testimony and from everything I’ve heard that
the individuals were asked for consent and that consent was given. [¶] As to the main
issue of whether the defendant was asked to accompany the officers and provide the

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samples and his voluntary agreement to do so, the court finds that the officers’ testimony
was credible. [¶] So given the totality of the circumstances including a consideration of
Mr. Hernandez’s age and status as a minor at the time of the incident, the court finds
nothing fatal to the finding of consent and it is for all of the forgoing reasons that the
motion to suppress is respectfully denied.”
                                       DISCUSSION
              Hernandez challenges the trial court’s ruling on his motion to suppress
evidence, insisting that he did not consent to being transported to the La Habra Police
Department, nor did he understand or consent to have his DNA collected.
              A seizure within the meaning of the Fourth Amendment occurs whenever
an individual’s liberty is restrained by the police, either by physical force or by an
assertion of authority to which the individual submits, in circumstances in which a
reasonable person would have believed he or she was not free to leave. (People v. Soun
(1995) 34 Cal.App.4th 1499, 1515.)
              Although “detention[s]” and “arrest[s]” are both seizures under the Fourth
Amendment, the constitutional standard for permissible detentions “is of lesser degree
than that applicable to an arrest.” (People v. Harris (1975) 15 Cal.3d 384, 389.) “[A]n
investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop. Similarly, the investigative methods employed should
be the least intrusive means reasonably available to verify or dispel the officer’s
suspicion in a short period of time. [Citations.] It is the State’s burden to demonstrate
that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently
limited in scope and duration to satisfy the conditions of an investigative seizure.”
(Florida v. Royer, supra, 460 U.S. at p. 500.)
              Hernandez does not contest the legality of his detention at the scene.
Instead, he claims to have been transported and held at the La Habra Police Department
against his will. However, his argument depends on this court’s rejection of the trial

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court’s credibility determination. Hernandez claims his “account is both more detailed
and more plausible” than the testimony of the officers involved. But this court must be
deferential to the trial court’s credibility determination if supported by substantial
evidence. (People v. Soun, supra, 34 Cal.App.4th at p. 1507.) We then use our
independent judgment to determine if the facts found by the trial court establish a seizure
in violation of the Fourth Amendment. (Ibid.)
              Here, the trial court found the officers’ account of events at the scene and
police station more credible than Hernandez’s recall of these events, notwithstanding the
inconsistencies between the individual officers’ recollections. Substantial evidence
supports the court’s factual findings. We have reviewed the trial court’s ruling, which
was based on its consideration of a totality of the circumstances, and Hernandez fails to
undermine the trial court’s credibility assessment.
              Hernandez cites the following seven factors to be considered in determining
when consent is voluntary: (1) physical domination of the defendant; (2) implied threats;
(3) lack of a specific statement that consent can be withheld; (4) presence or absence of a
consent form; (5) whether Miranda (Miranda v. Arizona (1966) 384 U.S. 436) warnings
were given; (6) physical acquiescence without a verbal response; and, (7) the defendant’s
age, education, intelligence, and knowledge of the law.
              We find nothing in the record to confirm Hernandez’s claims that the
officers impliedly threatened him by advising him what the officers wanted to do in
exchange for a ride back to the scene, physically dominated the detainees by engaging in
an unnecessarily prolonged detention with intermittent use of handcuffs, or by failing to
adequately advise the detainees of exactly what procedures they had consented to
perform. Under the facts found by the trial court, Hernandez, who was 17 years old at the
time, has not persuaded us that he misunderstood what the officer said, or felt intimidated
into cooperating.



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              Hernandez’s reliance on Dunaway v. New York (1979) 442 U.S. 200, is
misplaced. In that case, the police had vague suspicions that Dunaway, a teenager, was
involved in a robbery. However, despite the absence of probable cause, they decided to
arrest him. When officers found him at a neighbor’s residence, they asked him to
accompany them to the station without informing him that he was free to refuse.
Although he consented to their request, they were prepared to physically restrain him if
he did not cooperate. The Supreme Court held that Dunaway was seized for purposes of
the Fourth Amendment. (Id. at p. 207.)
              Here, although there was probable cause to arrest at least those individuals
with blood on their clothing at the scene, all 13 of the people who hid inside the party
house were told they were not under arrest. Instead, the officers asked if they would
voluntarily come to the police station to make statements. According to the police
officers, everyone agreed to be transported. Nothing Hernandez points to in the record
undermines the trial court’s determination on this point.
              Once at the police station, officers again advised them they were not under
arrest. Five individuals, including Hernandez, were separated from the others, but
Hernandez was not further isolated, and he was later joined by the other people with
blood on their clothing. Forgash asked the group of five if they would allow a DNA
swab, and according to Forgash everyone agreed. Hernandez had already been advised
that blood-stained clothing would be confiscated, and he does not even suggest his
subsequent interview was involuntary.
              After Hernandez’s interview, where he denied any participation in the
murder, an officer walked him to another area in the station where a technician examined
his hands, photographed him, and swabbed his fingers and mouth. Again, Hernandez
was not arrested, and he admits he was returned to the neighborhood where the crime
occurred. Hernandez admitted he was only briefly handcuffed at the scene, and there is



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no evidence he was threatened with physical restraint, arrest, or anything else to obtain
his DNA sample.
              While “the compulsory, nonconsensual extraction of DNA samples
constitutes a search and seizure under the Fourth Amendment” (People v. Travis (2006)
139 Cal.App.4th 1271, 1281), “[a] search conducted pursuant to consent ‘is a
constitutionally permissible and wholly legitimate aspect of effective police activity.’
[Citation.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1577-1578.) In this case, the
evidence supports the trial court’s finding that Hernandez consented to the collection of
his DNA.
Modifications to the Judgment
              Hernandez contends, and the Attorney General agrees, that the court
improperly imposed a $10,000 parole revocation fine when it imposed a $5,000
restitution fine. (§ 1202.45 [“the court shall, at the time of imposing the restitution fine
pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation
restitution fine in the same amount as that imposed [for a restitution fine] pursuant to
subdivision (b) of section 1202.4.”].) The Attorney General seeks to remand the matter
for the court to decide which amount, $10,000 or $5,000 should be imposed for both
fines. However, we exercise our authority to modify the judgment (§ 1260) to impose
$5,000 for both fines.
              Hernandez also asserts the court improperly imposed sentence for active
participation in a criminal street gang in violation of section 654. The Attorney General
concedes the issue and we shall modify the judgment accordingly.
              Finally, Hernandez and the Attorney General agree the abstract of judgment
fails to reflect a $30 criminal conviction assessment fee and a $40 court operations fee
that was imposed for each count.




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                                     DISPOSITION
              The judgment is modified to reflect the imposition of a $5,000 parole
revocation fine and a stay of sentence on count 2 pursuant to section 654. It is corrected
to reflect the imposition of a $30 criminal conviction assessment fee and a $40 court
operations fee on each count. The clerk of the superior court is directed to amend the
abstract of judgment to reflect these changes and forward a copy to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                 THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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