Filed 6/17/14 P. v. Hernandez CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F066556

                   v.                                                    (Super. Ct. No. BF143148A

FREDDIE HERNANDEZ,                                                                OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Gideon Margolis, 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, Daniel B. Bernstein and Chung
Mi (Alexa) Choi, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Kane, Acting P.J., Detjen, J., and Franson, J.
       A jury convicted appellant, Freddie Hernandez, of making criminal threats (Pen.
Code, § 422;1 count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and
infliction of corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a); count 3), and
in a separate proceeding the court found true allegations appellant personally used a
deadly or dangerous weapon in committing the count 1 and count 3 offenses (§ 12022,
subd. (b)(1)), and that, as alleged in connection with each count, he had suffered two
“strikes”2 and that he had served a prison term for a prior felony conviction (§ 667.5,
subd. (b)). On count 3, the court imposed a prison term of 25 years to life, plus one year
on the accompanying weapon use enhancement. The court imposed, and stayed pursuant
to section 654, a term of 25 years to life plus one year on the weapon enhancement on
count 1, and a 25-year-to-life term on count 2. The court struck the prior prison term
enhancements as to all three counts.
       On appeal, appellant argues that (1) the court erred in instructing the jury with
CALCRIM No. 852, which deals with the jury’s consideration of evidence of uncharged
domestic violence, because the evidence was insufficient to establish appellant
committed an uncharged act of domestic violence, and (2) this court should correct an
error in the abstract of judgment. We order that an amended sentencing minute order and
an amended abstract of judgment be prepared—albeit to correct errors other than the one
claimed by appellant—and in all other respects affirm.




1      Except as otherwise indicated, all statutory references are to the Penal Code.
2      We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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                  FACTUAL AND PROCEDURAL BACKGROUND
The Instant Offenses
        In June 2012,3 appellant and Anna Valdivia were living together in the house at
2647-1/2 Kentucky Street (the house) in Kern County, along with James Hernandez
(James), who is Valdivia’s son and appellant’s stepson, James’s girlfriend and James’s
two children. Appellant and Valdivia are the parents of a 27-year-old daughter.
        Valdivia testified to the following. On June 18, appellant arrived home at
approximately 2:00 a.m. He appeared to be intoxicated. He and Valdivia drank some
beer, Valdivia prepared some food, and as the two were eating, Valdivia accused
appellant of being unfaithful and the two began arguing. At some point thereafter, the
two were in the living room and Valdivia told appellant to go to bed because he was
drunk. Appellant and Valdivia, who were both intoxicated at the time, began yelling at
each other.
        James testified to the following. Appellant was not at home on June 17 at noon
when James arrived home from an outing with his girlfriend and children. Appellant
came home around 2:00 a.m. the next day. By that time, Valdivia, who had been
drinking beer “probably the whole day,” had “probably” consumed a “[c]ouple [of] 12
packs” of beer. She was accustomed to drinking alcohol and she was “just buzzed.”
        James was asleep at approximately 3:30 a.m. when his girlfriend awakened him
and told him Valdivia “was yelling or crying or something.” James heard yelling and his
mother crying. He ran to the living room, where he saw his mother sitting on the couch
and appellant “on top of her.” It “looked like [appellant] was going to hit [Valdivia].”
Appellant had one hand on Valdivia’s stomach and one hand raised in the air.


3       Except as otherwise indicated, all references to dates of events are to dates in
2012.


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Appellant’s upraised hand was “[k]ind of closed,” “[p]robably like a fist,” and Valdivia
was crying. Both Valdivia and appellant were “intoxicated.” James “ran over and
pushed [appellant] off [Valdivia] and hit him a couple [of] times.” Appellant “rolled over
onto the side of her, … got up and … took off out the door.” As appellant fled, a knife
fell off the couch and landed on James’s foot. Shortly thereafter, sheriff’s deputies
arrived. James did not see any injuries to his mother.
       Kern County Deputy Sheriff Ernesto Alvarado testified he was dispatched to the
house on June 18, where he spoke to James, who stated that when he ran into the living
room he saw appellant “over [Valdivia],” holding a knife in his hand. James testified he
did not recall telling a deputy he saw appellant holding a knife.
       Valdivia testified she called 911. A tape of the call was played for the jury, and a
transcript of the tape indicates the following. Valdivia stated she “want[ed] to report an
assault.” She also stated appellant “tried to stick [her] with a knife” and “socked [her] in
[the] head.”
       Kern County Deputy Sheriff Standish Knowlton testified that on June 18, in
response to a dispatch call, he went to the house where he spoke with Valdivia. She
appeared to be “upset” but not “heavily intoxicated.” Valdivia told the deputy the
following. She and appellant had argued in the living room. During the argument
appellant punched her three or four times in the head. Thereafter, appellant went to the
kitchen, retrieved a knife, reentered the living room, said, “I will kill you,” and began
“jabbing and pok[ing] her in the stomach” with the knife. Next, he “put the knife to …
[the] left side of her throat.” When Valdivia felt “pressure from the knife on her neck,”
she thought appellant was going to kill her. She began screaming, at which point James
entered the living room and “broke up the altercation.”
       Valdivia, however, testified to the following. At no time during her argument with
appellant on June 18 did appellant push her, “use any sort of physical force towards

                                              4
[her],” point a knife at her, hit her in the head, put a knife to her throat, or threaten to kill
her. Valdivia did not tell Deputy Knowlton she thought appellant would kill her. She
made many claims about appellant to Knowlton and said the things she said during the
911 call because she was angry at appellant. She “[m]ost likely” got the bump on her
head when she tripped and fell. She is “always tripping” because she has glaucoma and
“can’t see at nighttime,” and she was drunk at the time.
       Valdivia further testified to the following. Appellant returned later in the morning
on June 18, at which time, although she was no longer upset with appellant, she told him
“it wasn’t a good idea” for him to live in the house because James was upset with him.
Appellant left and “stayed gone for a while.” James testified that approximately one
month after the June 18 incident, appellant came back to the house to live.
       Deputy Knowlton testified he went back to the house on September 11 and made
contact with Valdivia, at which time she told him the June 18 incident was a “nightmare,”
the account she gave that day was not true, she and appellant “were in an argument
regarding a relation problem,” and she and appellant had been “just playing around.” She
explained that her “recollection of what happened on June 18” was different than the
account she had previously given the deputy because “she was mad at [appellant] because
she believed he was cheating on her.”
       Audio recordings of telephone calls between appellant and Valdivia made while
appellant was incarcerated in Kern County Jail were played for the jury. In one of these
calls appellant told Valdivia “to keep calling down to the attorney’s office” and directing
Valdivia to “[t]ry to … get these charges dismissed ….” Valdivia testified she agreed
that she and appellant “were talking about [her] attempt to not want to press charges,”
and that she still wanted the charges dismissed. During the telephone call, Valdivia made
multiple references to “the last time,” as in the following exchange:



                                                5
       “[Valdivia]: … I’ll just go in there and tell [them] that … I don’t want to press
charges. And I don’t even wanna, I don’t want [nothing] I just don’t want to testify or
nothing.
       “[Appellant]: I know [because] that didn’t happen I mean, you know?
       “[Valdivia]: Yeah….yeah and they can’t make me so.
       “[Appellant]: Yeah.
       “[Valdivia]: Uh-huh, like last time babe same shit we went through.”
Uncharged Acts Evidence
       Valdivia, when asked about the references in the telephone call to “the last time,”
indicated she was referring to an incident that occurred on November 2, 2010, when she
called the police and “[t]hey tried to get [appellant] for assault ….” She further testified
to the following. On the day of that incident, she and appellant had been drinking
together. At one point, after they had gone to a store to buy cigarettes and “more beer,”
they were walking down an alley and Valdivia had to urinate. She went to a “corner [of]
the alley,” pulled her pants and underwear down, and “went to the bathroom.” However,
because she was “pretty intoxicated,” she “couldn’t get up,” and when appellant tried to
help her up, Valdivia fell on her back and appellant “fell on top of [her].” At some point
thereafter, two men “came around the corner,” walking toward appellant and Valdivia,
and asked Valdivia if appellant “was hurting [her].” She “said no.” The men “were
[telling appellant] to get off of her, get off of her,” and she “told [appellant] to leave
because they probably think you’re trying to hurt me, and [she] was scared that they were
going to do something to [appellant].” Appellant ran away.
       The following exchanges occurred in the prosecutor’s direct examination of
Valdivia:
       “Q.    Did [appellant] try to get on top of you when you were on the ground?
       “A.    He didn’t try. No, he didn’t.”

                                               6
        “Q.    Isn’t it true that you told the [investigating] officer [appellant] came on to
you and it went too far?
        “A.    No, I didn’t say that.”
        “Q.    Isn’t it true you told the [investigating] officers that [appellant] pushed you
down?
        “A.    No, I didn’t say that.”
        “Q.    Did you scream?
        “A.    … I don’t remember screaming.”
Procedural Background
        Prior to trial, the People filed a memorandum of points and authorities stating,
“The People seek to introduce evidence of [appellant’s] prior acts of domestic violence
pursuant to Evidence Code section 1109 ….” At the pretrial hearing on the People’s
request, the prosecutor specified that the People wished to introduce evidence of “an
arrest involving [appellant] and [Valdivia] back in 2010.” The prosecutor explained:
“The facts of the [2010 incident] involve the defendant committing an assault while
attempting to rape Ms. Valdivia in an alley when there were several witnesses [whose
attention was] called to … a woman screaming in the alley that a man was trying to take
her pants down ….” Over defense objection, the court ruled the evidence admissible
under Evidence Code section 1109 and was not made inadmissible by Evidence Code
section 352.
        During a discussion of jury instructions between defense counsel, the court and the
prosecutor after the defense had rested, defense counsel argued that the court should not
give CALCRIM No. 852, which deals with the jury’s consideration of evidence of
uncharged domestic violence, on the ground that there was “no evidence” appellant
committed a prior act of domestic violence. The court rejected this argument, finding,
“… I do think that there is sufficient evidence to support the giving of the instruction in

                                               7
this particular case.” Thereafter, the court instructed the jury in the language of
CALCRIM No. 852, in relevant part, as follows:
        “The People presented evidence that the defendant committed domestic violence
that was not charged in this case, specifically an alleged assault on Anna Valdivia in
2010.
        “Domestic violence means abuse committed against an adult who was a cohabitant
or person with whom the defendant has had a child.
        “Abuse means intentionally or recklessly causing or attempting to cause bodily
injury or placing another person in reasonable fear of imminent serious bodily injury to
himself or herself or to someone else.
        “[¶] … [¶]
        “You may consider this evidence only if the [P]eople have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged act of
domestic violence.
        “[¶] … [¶]
        “A fact is proved by a preponderance of the evidence if you conclude that it is
more likely than not that the fact is true.
        “If the People have not met this burden of proof, you must disregard this evidence
entirely.
        “If you decide that the defendant committed the uncharged domestic violence, you
may, but are not required to, conclude from that evidence that the defendant was disposed
or inclined to commit the domestic violence and, based on that decision, also conclude
that the defendant was likely to commit the crimes charged here.
        “If you conclude that the defendant committed the uncharged domestic violence,
that conclusion is only one factor to consider along with all other evidence. It is not
sufficient by itself to prove that the defendant is guilty of the crimes charged here.

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       “[¶] … [¶]
       “Do not consider this evidence for any other purpose except for the limited
purpose described in this instruction.”
                                       DISCUSSION
CALCRIM No. 852
       Appellant contends the trial court erred in instructing the jury pursuant to
CALCRIM No. 852 because, he asserts, the evidence was insufficient to establish that in
the 2010 incident he committed an act of domestic violence. We agree.
       “A party is entitled to a requested instruction if it is supported by substantial
evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose if it is ‘sufficient to
“deserve consideration by the jury,” that is, evidence that a reasonable jury could find
persuasive.’ [Citation.] At the same time, instructions not supported by substantial
evidence should not be given. [Citation.] ‘It is error to give an instruction which, while
correctly stating a principle of law, has no application to the facts of the case. [Citation.]’
[Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.)
       To justify the giving of CALCRIM No. 852, the prosecution was required to
establish by a preponderance of the evidence that appellant committed an act of domestic
violence, i.e., “abuse,” as defined in section 13700, against a cohabitant or a person with
whom he had had a child. (Evid. Code, § 1109; Pen. Code, § 13700.) Abuse consists of
“intentionally or recklessly causing or attempting to cause bodily injury, or placing
another person in reasonable apprehension of imminent serious bodily injury to himself
or herself, or another.” (§ 13700, subd. (a).)
       As indicated above, the prosecutor, in arguing for admission of the uncharged act
evidence prior to trial, represented that “The facts of the [2010 incident] involve the
defendant committing an assault while attempting to rape Ms. Valdivia in an alley when
there were several witnesses [whose attention was] called to … a woman screaming in

                                                 9
the alley that a man was trying to take her pants down ….” The evidence presented fell
far short of this. The only evidence of the 2010 incident was Valdivia’s testimony.
There was no evidence Valdivia accused appellant of trying to remove her pants, and
Valdivia testified she did not remember if she screamed. Rather, the evidence,
considered in the light most favorable to the prosecution, showed, at most, the following:
Valdivia was lying on her back in an alley, with her pants and underwear down, and
appellant was on top of her. Two men came into the alley, observed this scene, asked
Valdivia if appellant was hurting her, and ordered appellant to get off of her. Soon
thereafter, appellant fled. This evidence was not sufficient to establish it was more likely
than not that appellant, in the 2010 incident, committed an act of domestic violence.
Therefore, giving CALCRIM No. 852 was error.
       We turn now to the question of whether the error compels reversal. When a court
errs by giving a correct instruction that has no application to the facts of the case, the
error “does not appear to be of federal constitutional dimension.... [¶] The error is
therefore one of state law subject to the traditional Watson test (People v. Watson (1956)
46 Cal.2d 818, 836) .... Under Watson, reversal is required if it is reasonably probable
the result would have been more favorable to the defendant had the error not occurred.”
(People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton).)
       Appellant argues that giving CALCRIM No. 852 was prejudicial because (1) the
jury requested a readback of the testimony of the two deputy sheriffs, which indicated,
according to appellant, that the jury was comparing Valdivia’s testimony with Deputy
Knowlton’s testimony as to statements Valdivia made to him, and that conviction was not
a “foregone conclusion”; (2) the deputies’ testimony was not particularly strong evidence
of guilt because neither deputy was a percipient witness to the events of June 18; and
(3) the prosecutor, in questioning Valdivia, “insinuated” that appellant attempted to rape
Valdivia.

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       These points are not well taken. The testimony of Deputies Knowlton and
Alvarado of statements made by, respectively, Valdivia and James, close to the time of
the events in question constituted strong evidence of appellant’s guilt, and the jury’s
request for a readback does not suggest otherwise. Further, appellant has not established
that the jury concluded from the prosecutor’s questions that appellant sexually assaulted
Valdivia. As appellant acknowledges, the court instructed the jury that what the
attorneys say is not evidence. We reject appellant’s contention that another instruction
given by the court, viz., that questions asked by the attorneys “are significant only if they
helped you understand the witness’ answers,” was somehow contrary to CALCRIM No.
852. As indicated earlier, we presume jurors follow the court’s instructions. More
fundamentally, however, appellant’s argument fails for the following reasons:
       “[G]iving an irrelevant or inapplicable instruction is generally ‘“only a technical
error which does not constitute ground for reversal.”’ [Citation.]” (People v. Cross
(2008) 45 Cal.4th 58, 67.) “[T]he jury is presumed to disregard an instruction if the jury
finds the evidence does not support its application.” (People v. Frandsen (2011) 196
Cal.App.4th 266, 278.) This is because jurors are “as well equipped as any court to
analyze the evidence and to reach a rational conclusion,” and thus their “own intelligence
and expertise” will save them from relying on a factually inadequate theory. (Guiton,
supra, 4 Cal.4th at p. 1131.) Moreover, the court instructed the jury that “[s]ome of the
instructions may not apply depending on your findings about the facts of the case,” and
“[a]fter you’ve decided what the facts are, follow the instructions that do apply to the
facts as you find them.” CALCRIM No. 852 itself told the jury to disregard the
uncharged act evidence entirely if the People did not prove the act by a preponderance of
the evidence. Jurors are presumed able to understand and correlate instructions and are
further presumed to have followed the court’s instructions. (People v. Romo (1975) 47



                                             11
Cal.App.3d 976, 990, disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d
208, 213-214.)
       When we apply the forgoing principles, we conclude that even though CALCRIM
No. 852 was lacking in evidentiary support, the jurors’ “own intelligence and expertise”
would lead them to conclude that the People had not shown by a preponderance of the
evidence that appellant committed an uncharged act of domestic violence and would have
disregarded entirely the evidence of the 2010 incident. Appellant has thus not
demonstrated that it is reasonably probable that the outcome of the trial would have been
more favorable to the defense had the challenged instruction not been given.
Correction of Abstract of Judgment and Sentencing Minute Order
       Appellant contends “the abstract of judgment shows that six strike priors were
charged and found to be true,” and that this constitutes clerical error which this court
should correct. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts may correct
clerical errors at any time”].) Appellant suggests, as best we can determine, that sentence
was imposed on only two strikes, and that the abstract should reflect this.
       Some background explanation is required. In the instant case, it was alleged in
the information that appellant had suffered two prior felony convictions that qualified as
strikes. The information alleged these strikes as to each of the three counts, and thus the
information contained a total of six strike allegations. The court found each of these
allegations true and imposed sentence under the three-strikes law on all three counts,
although execution of sentence was stayed on two of the three counts.
       Thus, in some sense, sentence was imposed on six strike allegations, and this is
what the abstract shows—or attempts to show—in item No. 3, the section designated for
“ENHANCEMENTS charged and found to be true FOR PRIOR CONVICTIONS OR
PRISON TERMS (mainly in the PC 667 series).” The designation “PC 667(e)>2012,” an
apparent reference to the three strikes law, appears six times. This is the basis for

                                             12
appellant’s claim that the abstract erroneously shows that the court found six strike
allegations true.
       The abstract contains errors, but not quite the errors appellant claims. First, item
No. 3 is the place on the abstract form for showing time either imposed or stayed on
certain enhancements. Problems with the abstract arise from the fact that a strike is not
an enhancement. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527
[“The Three Strikes law ... articulates an alternative sentencing scheme for the current
offense rather than an enhancement”].) Strictly speaking, where a defendant has suffered
one or more strikes, sentence is not imposed on the strike. Rather, sentence is imposed
on the substantive offense conviction, and that sentence is determined under the three
strikes law. Therefore, item No. 3 is not the section of the form for indicating a
defendant’s strikes or that he or she has been sentenced under the three strikes law. The
fundamental problem with item No. 3 on the abstract in the instant case is not that it
shows appellant was sentenced on six strikes, but that it contains any reference at all to
appellant’s strikes. A new abstract should be prepared eliminating all references to
appellant’s strikes from item No. 3.
       Second, item No. 6—the section for indicating indeterminate terms—which
indicates a 25-year-to-life sentence was imposed on count 3 only, is in error. As
indicated above, a term of 25 years to life was imposed on each of the three counts, not
just count 3. The amended abstract should show, in item No. 6, that a term of 25 years to
life was imposed on counts 1, 2 and 3. (As is also indicated above, sentence was stayed
on counts 1 and 2 pursuant to section 654. That fact is correctly indicated in item No. 1
of the abstract.)4

4       The unfeasibility of using item No. 3 to indicate the sentence imposed “on” strikes
is further demonstrated by the fact that item No. 3 calls for the court to indicate for each
enhancement the “TIME IMPOSED,” if that time is not stayed. If time imposed under

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       Third, as indicated above, prior prison term enhancements (§ 667.5, subd. (b))
were alleged and found true as to each of the three counts and each was stricken by the
trial court. Item No. 3 directs, “DO NOT LIST ANY STRICKEN
ENHANCEMENT(S).” The amended abstract should eliminate all references in item
No. 3 to the prior prison term enhancements.
       Fourth, to show that appellant was sentenced under the three strikes law, item
No. 8 should be completed so that it shows appellant was sentenced pursuant to sections
667, subdivisions (b) through (i) or 1170.12.
       Finally we note that the January 15, 2013, sentencing minute order erroneously
fails to indicate that the punishment for the prior prison term enhancements alleged in
connection with each of counts 1 and 2 was stricken.
                                     DISPOSITION
       The trial court is directed to prepare an amended sentencing minute order and an
amended abstract of judgment consistent with the views expressed in this opinion and to
forward a certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects the judgment is affirmed.




the three strikes law is shown in item No. 3, and time imposed under the three strikes law
is also shown in item No. 6, as it should be, the abstract will be incorrect. For example,
in the instant case, if item No. 3 showed an unstayed term “on” appellant’s strikes of 25
years to life, it would indicate, incorrectly, that the 25-year-to-life term was imposed in
addition to the unstayed 25 years to life imposed under the three strikes law on count 3,
which is correctly indicated in item Nos. 6 and 1. And what would be indicated in the
“TIME IMPOSED” box on the abstract form for each of the two strikes alleged in
connection with count 3 upon which the unstayed 25-year-to-life term was based?
Should the form show 25 years to life for both strikes? Or only for one? Either option
would be confusing and would inaccurately represent the sentence imposed.


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