P. v. Hernandez

Filed 3/17/08 P. v. Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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,
v.
NARCISO HERNANDEZ,
Defendant and Appellant.
F051746
(Super. Ct. No. BF113180A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly,
Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Michael P. Farrell and
Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Narciso Hernandez of second degree murder and
possessing a sawed-off shotgun. He contends (1) the evidence was insufficient to sustain
the second degree murder conviction; (2) the trial court erred in instructing the jury;
(3) counsel rendered ineffective assistance; (4) the sentence imposed is cruel and unusual;

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2.
(5) imposition of consecutive sentences was error; and (6) the trial court erred in the
award of presentence credits. We will reverse the second degree murder conviction and
the accompanying enhancement on the basis of instructional error and remand the matter
to the trial court.
FACTUAL AND PROCEDURAL SUMMARY
On Christmas Eve and early Christmas morning in 2005, Narciso Hernandez
(hereafter Hernandez) and his brother Jose Hernandez,1 his cousin Everardo Contreras,
and his neighbor Carolina B. were gathered in the front yard of his residence drinking
and celebrating. When Contreras appeared to become intoxicated, Hernandez’s sister,
Melby,2 drove Contreras around the corner to his house.
Melby walked Contreras to the door of his home, where he lived with his mother
Melba Hernandez, his father, and his two sisters. Contreras wanted his mother to come
outside and listen to a song on the radio in his truck; Melby left and went back home. A
few minutes later, Jose walked around the corner to Contreras’s house. Contreras and
Jose were drinking and crying as they discussed Jose’s father, who had been killed that
year, and commenting that this was their first Christmas without him.
While Hernandez and Carolina were in his front yard, Manuel Madrigal, Jr.,
walked up to them and asked for a beer. Madrigal recently had been released from prison
and was visiting family in the area. Hernandez gave Madrigal a beer and Madrigal left.
A few minutes later, Madrigal returned and asked for cigarettes and another beer.
Hernandez gave Madrigal another beer and told Madrigal he had no cigarettes. Madrigal
left Hernandez’s house and walked around the corner toward Contreras’s house.
1 We will refer to Jose Hernandez, Melby Hernandez and Melba Hernandez by their
first names, not out of disrespect but to avoid any confusion to the reader.
2 Hernandez’s sister’s true name is Melba Hernandez. As Hernandez’s aunt also is
named Melba Hernandez, we will refer to his sister as “Melby,” which is a nickname that
appears in the record.

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3.
While Melba, Contreras, and Jose were outside listening to music, Madrigal
approached and asked for cigarettes. Jose gave him a cigarette. None of the three had
seen or met Madrigal before and they asked Madrigal to leave because they were
discussing private family matters. At that point Madrigal responded, “Fuck that. This is
my territory, and I’m not going to leave.”
Jose told Madrigal that he, Melba, and Contreras were going inside. Madrigal hit
Jose and Jose fought back. Melba pulled Jose away from Madrigal and toward her;
Madrigal then attacked Contreras. Contreras fell to the ground and was lying face down;
Madrigal continued to hit Contreras with his fists and kick him. Melba held on to Jose
and yelled for Madrigal to stop.
Melba managed to turn Contreras over so that he was lying face up. She screamed
when she saw he was missing teeth and had a large knot on his head. Melba then noticed
that Madrigal again was attacking Jose. Madrigal was on top of Jose, hitting him, while
Melba continued to scream.
Hernandez and Carolina heard Melba’s screams. Hernandez went inside the house
and retrieved a sawed-off shotgun. Carolina asked what he was going to do, and
Hernandez responded that he was “not going to let what happened … to his dad happen
to his aunt.”
As Hernandez ran toward Melba’s house, Carolina ran after him. Carolina could
still hear Melba screaming. Hernandez was running. By the time Hernandez arrived at
Melba’s house, Contreras was in the street, motionless and bleeding. Jose was on the
ground, with Madrigal on top of him, hitting him. Melba screamed at Madrigal to stop.
Carolina was frightened and screaming.
Hernandez approached Madrigal and began yelling at him, asking him what he
was doing. Hernandez thought Madrigal had killed Contreras and Jose. Madrigal
stopped hitting Jose, got up, headed quickly toward Hernandez and motioned like he
“was now going after” Hernandez. Hernandez fired twice, hitting Madrigal. After

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4.
Madrigal fell to the ground, Hernandez kicked him and then Hernandez began to cry.
Hernandez stated, “[W]hy didn’t you leave? If you had left none of this would have
happened.”
Melba knelt next to Madrigal. Hernandez continued to cry, threatened to kill
himself, and began hitting himself.
Jose and Contreras were injured, not dead. Jose took the shotgun away from
Hernandez and they all went into the house. Carolina went home.
Melby, Contreras, and Jose subsequently disposed of Madrigal’s body by dumping
it along the roadside about two miles from the house. Hernandez was not involved in
moving the body. The body was recovered and identified on December 26, 2005.
An autopsy disclosed that Madrigal had sustained a lethal gunshot wound to the
right side of the chest. The shot caused massive injury to chest organs and extensive
bleeding. This shot would have immediately incapacitated Madrigal. Madrigal also had
a second gunshot wound in the right hip area, although it could not be determined which
shot occurred first. There were abrasions to Madrigal’s face and a wound to the head that
was consistent with having been kicked. The amount of blood from the head wound
indicated that it was inflicted after Madrigal had been shot in the chest.
Madrigal had a blood-alcohol level of 0.17 at the time of death and also had
cocaine in his system. Alcohol and cocaine together make cocaethylene, a central
nervous system stimulant with psychoactive effects. Cocaethylene generally causes
problems with information processing and judgment. Aggression, anxiety, and paranoia
also can be present.
During an interview, Hernandez initially denied any knowledge of the shooting.
Eventually, he told officers that he heard his aunt screaming, got his shotgun, and ran to
her house. When he arrived at the house, he saw Madrigal hitting Jose and saw Contreras
unconscious and bleeding in the street. Hernandez said he did not know why he had shot
Madrigal. He cried during his interview.

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5.
The jury convicted Hernandez of second degree murder, a violation of Penal Code
section 187, subdivision (a),3 and possession of a sawed-off shotgun, a violation of
section 12020, subdivision (a)(1). Two arming enhancements also were found true.
Hernandez moved to vacate the second degree murder verdict. The trial court denied the
motion.
At sentencing, the trial court imposed a term of 15 years to life for the second
degree murder conviction, a consecutive 25-year term for the section 12022.53,
subdivision (d) enhancement, and a consecutive two-year term for violating section
12020, subdivision (a)(1).
DISCUSSION
Hernandez contends his second degree murder conviction must be reversed
because the evidence was insufficient to support the conviction. He also claims the trial
court erred in instructing the jury regarding heat of passion. Hernandez also argues
counsel rendered ineffective assistance for failing to assure the jurors were properly
instructed on heat of passion and for failing to object to the prosecutor’s closing
argument. In addition, Hernandez contends that under the circumstances of this case, a
sentence of 40 years to life is cruel and unusual. Finally, he contends the trial court erred
in imposing consecutive terms of imprisonment and in the calculation of presentence
credits.
I. Prejudicial Instructional Error
The People charged Hernandez with first degree murder and argued for that
verdict at closing, asserting the evidence showed deliberation, premeditation, and intent.
Hernandez argued that the evidence established that he had acted in self-defense or in
3 All further statutory references are to the Penal Code unless otherwise specified.

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6.
defense of others, either reasonably or unreasonably, or upon a sudden quarrel or heat of
passion.
Hernandez had requested the trial court instruct the jury with Judicial Council of
California Criminal Jury Instructions (2006), CALCRIM No. 570, which defines the
crime of voluntary manslaughter upon a sudden quarrel or heat of passion. CALCRIM
No. 570 states, in part:
“The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as the result of a sudden quarrel or in the heat of
passion. If the People have not met this burden, you must find the
defendant not guilty of murder.”
Instead of instructing the jury with CALCRIM No. 570, the trial court instructed
with various CALJIC instructions. CALJIC No. 8.40 (voluntary manslaughter defined),
CALJIC No. 8.42 (sudden quarrel or heat of passion and provocation explained), and
CALJIC No. 8.44 (no specific emotion alone constitutes heat of passion) were all given.
Nothing in these instructions informed the jury that the People had the burden of proving
beyond a reasonable doubt that Hernandez did not kill as the result of a sudden quarrel or
heat of passion.
The trial court also instructed the jury with a modified version of CALJIC No.
8.50 (murder and manslaughter distinguished—nature of act involved). The modification
deleted critical language in the second and third paragraphs that pertain to heat of passion
and sudden quarrel. The standard version of CALJIC No. 8.50 states:
“The distinction between murder [other than felony-murder] and
manslaughter is that murder [other than felony-murder] requires malice
while manslaughter does not.
“When the act causing the death, though unlawful, is done [in the
heat of passion or is excited by a sudden quarrel that amounts to adequate
provocation,] [or] [in the actual but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury,] the offense is
manslaughter. In that case, even if an intent to kill exists, the law is that
malice, which is an essential element of murder, is absent.

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7.
“To establish that a killing is murder [other than felony-murder] and
not manslaughter, the burden is on the People to prove beyond a reasonable
doubt each of the elements of murder and that the act which caused the
death was not done [in the heat of passion or upon a sudden quarrel] [or] [in
the actual, even though unreasonable, belief in the necessity to defend
against imminent peril to life or great bodily injury].” (CALJIC No. 8.50
(Fall 2006 ed.) p. 394.)
The modified version given by the trial court deleted the bracketed portions of the second
and third paragraphs that address heat of passion or sudden quarrel. The record does not
contain any discussion of this instruction, or disclose any reason for the deletion.
The due process clause of the United States Constitution requires the prosecution
to prove the absence of heat of passion. (Mullaney v. Wilbur (1975) 421 U.S. 684, 704.)
After the United States Supreme Court issued its decision in Mullaney, CALJIC No. 8.50
was revised to conform to that decision and specifically to instruct the jury that the
People have the burden of proving the absence of heat of passion or a sudden quarrel.
(People v. Najera (2006) 138 Cal.App.4th 212, 227.)
By deleting the bracketed language from the third paragraph, the language that
was added to conform to the Mullaney decision was omitted. There was no other
instruction that specifically informed the jury that the People had the burden of proving
the absence of heat of passion or sudden quarrel. Clearly, the trial court felt there was
sufficient evidence from which a reasonable jury could conclude that Hernandez had
acted in the heat of passion or on a sudden quarrel because the jury received numerous
instructions on this point.
The People argue on appeal that the other instructions, including CALJIC No.
2.90, when taken as a whole, informed the jury of the People’s burden of proving the
absence of heat of passion or sudden quarrel. None of the instructions given by the trial
court, however, informed the jury whether the People had the burden of proving the
absence of heat of passion or sudden quarrel or if the defense had the burden of proving
its existence.

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8.
When a jury considers both murder and voluntary manslaughter, heat of passion is
not an element of voluntary manslaughter; the absence of heat of passion is an element of
murder the prosecution must prove beyond a reasonable doubt. (People v. Rios (2000) 23
Cal.4th 450, 462.) CALJIC No. 8.50 was modified after Mullaney to satisfy due process
requirements and to instruct the jury on this fine distinction. When the defense is
contending that a killing occurred in the heat of passion or upon a sudden quarrel, as
Hernandez did, and there is evidence to support this contention, there is no valid reason
for modifying CALJIC No. 8.50 to delete the language informing the jury that the People
have the burden of proving its absence.
Without an instruction informing the jury that the People have the burden of
proving the absence of heat of passion or a sudden quarrel, the jurors erroneously may
conclude that the defense has the burden of proving its existence.
The People contend that any instructional error was harmless because the evidence
of malice was “more than substantial.” We disagree. The evidence of malice was slight
at best. Madrigal was a recent parolee with a violent history; Hernandez had no criminal
record. Madrigal was the aggressor in the fight against Contreras and Jose. Melba
testified that Madrigal headed toward Hernandez as though to fight with him. Hernandez
responded to Melba’s screams, concerned about his aunt’s welfare, and with his father’s
recent death fresh on his mind. Hernandez arrived around the corner at Melba’s house
and found Contreras unconscious and bleeding and Jose on the ground being hit
repeatedly by Madrigal. Madrigal then advanced toward Hernandez, at which time
Hernandez fired.
The jury did request the written instructions and the prosecution’s “chart on
definition of self defense,”4 indicating that it was considering a verdict other than the first
4 The chart was not made part of the record on appeal.

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9.
degree murder verdict requested by the People and needed to review the instructions
before reaching a verdict. A verdict was returned shortly after receipt of the requested
information.
The problem was compounded by the prosecutor’s erroneous statement of the law
in closing argument. When arguing whether Hernandez could be found to have acted
upon a sudden quarrel or heat of passion, the prosecutor stated that the jury was to
evaluate Hernandez based upon whether the circumstances would have caused a “normal
person” and “reasonable person” to have acted similarly. The People concede on appeal
that the prosecutor’s comments constituted a misstatement of the law regarding the
application of the heat of passion or sudden quarrel principles, but assert that no prejudice
resulted from the misstatement or defense counsel’s failure to object to the statement. In
light of the instructional error, we make no such assumption.
The failure to instruct the jury that the People had the burden of proving the
absence of heat of passion or a sudden quarrel deprived Hernandez of his constitutional
right to due process. The error was compounded by the prosecutor’s misstatement of the
law with respect to application of heat of passion or sudden quarrel to Hernandez’s
actions, misstatements that were not objected to by defense counsel or corrected by the
trial court.
This is a very close case. We are not convinced beyond a reasonable doubt that a
properly instructed jury would have returned a second degree murder verdict under the
facts of this case.
We will reverse the second degree murder verdict. The true findings appended to
that count also must be reversed in light of the reversal of the underlying offense.
II. Custody Credits
Hernandez contends the trial court erred in calculating presentence credits. He
asserts he was arrested and placed in custody on January 5, 2006, but the trial court
calculated from January 9, 2006. Testimony established that Hernandez was interviewed

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10.
by the authorities on January 5, 2006. There was no testimony at trial regarding the date
he was taken into custody. The probation report shows that Hernandez was placed in
custody on January 9, 2006.
Hernandez’s claim that he is entitled to four additional days of presentence
custody credit is not supported by the record.
III. Conclusion
In light of our conclusion that the instructional error was prejudicial, we need not
address Hernandez’s contentions regarding sufficiency of the evidence, ineffective
assistance of counsel, and cruel and unusual punishment. The matter will be remanded
for further proceedings.
DISPOSITION
The second degree murder conviction and the true findings on the section 12022.5,
subdivision (a) and section 12022.53, subdivision (d) enhancements are reversed. The
conviction for violating section 12020, subdivision (a)(1) is affirmed. The matter is
remanded to the trial court for further proceedings.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
HILL, J.

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