P. v. Hernandez

Filed 9/27/18 P. v. Hernandez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE HERNANDEZ,
Defendant and Appellant.
B283270
(Los Angeles County
Super. Ct. No. KA110022)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Juan Carlos Dominguez, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy
Attorney General, and Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.
* * * * * *

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George Hernandez (defendant) stands convicted of second
degree murder for stabbing his roommates’ friend 41 times. In
this appeal, he argues that the trial court should have given the
jury a special defense-of-home instruction applicable to intruders
and that the defense-of-home instruction the jury heard
improperly shifted the burden of proof onto him. These
arguments lack merit, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On a Wednesday evening in late June 2015, someone
stabbed Daniel Herrera (Herrera) 41 times in the head, chest,
arms, and legs; three of the wounds were fatal.
The stabbing occurred in one of the trailers at the
Thunderbird Trailer Park in Pomona, California. The trailer was
owed by Cece Arenas (Cece).1 Cece, her adult daughter Danielle,
and defendant each occupied a room in the trailer.
Both Cece and Danielle were friends with Herrera, and
Herrera would regularly drop by the trailer. On the night in
question, Herrera “walked in” to the trailer and knocked on
Danielle’s bedroom door to let her know he was there before going
back to the living room.
At some point thereafter, Danielle heard a scuffle in the
living room. When she investigated, she saw someone standing
over Herrera as Herrera sat on the sofa. She yelled “Stop!” and
hit the assailant with a floor lamp and then the television. She
then tried to pull the assailant away, but he sliced her hand with
a knife. Cece then came out to the living room and whacked the
1 Because Cece and Danielle share the same last name, we
use their first names for clarity. We mean no disrespect.

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assailant with her walking cane. At that point, the assailant
fled.
Overwhelming evidence established that defendant was
Herrera’s assailant. A six-inch fixed blade knife with Herrera’s
blood on it was recovered outside the apartment where
defendant’s ex-girlfriend lived, and whom he had gone to visit
right after the stabbing. When defendant was arrested that
night for violating the restraining order to keep away from his ex-
girlfriend, Herrera’s blood was on his hands as well as on the
shorts, t-shirt, and knife sheath he was wearing. Danielle’s blood
was also on his shorts and on a tank top. What is more, both
Cece and Danielle had told police that defendant was the
assailant.
II. Procedural Background
The People charged defendant with a single count of
murder (Pen. Code, § 187, subd. (a))2 and alleged that he had
personally used a deadly and dangerous weapon (namely, a knife)
(§ 12022, subd. (b)(1)). The People further alleged that
defendant’s two 1987 first degree burglary convictions
constituted strikes within the meaning of our “Three Strikes” law
(§§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)); that one of those
convictions constituted a prior “serious” felony (§ 667, subd. (a));
and that defendant had served four other prior prison terms
(§ 667.5, subd. (b)(1)).
At trial, Cece and Danielle were both in custody for
refusing to testify. Both recanted their prior statements
identifying defendant: Danielle said she could not identify the
“dark shadow[y] figure” who had attacked Herrera, and Cece
2 All further statutory references are to the Penal Code
unless otherwise indicated.

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went so far as to say she did not know defendant at all.
Defendant took the stand. He said that someone had
“socked [him] in the eye” the moment he entered the trailer that
night, and defendant “just started fighting” and went “wild”
because he feared the Mexican Mafia was making good on its
2003 threat to kill him. He explained his “life was in danger”
because six people—Herrera, Danielle, Cece, and three others—
were attacking him at the same time.
The trial court instructed the jury on the charged crime of
second degree murder, on the lesser included crime of voluntary
manslaughter (as the product of “a sudden quarrel or in the heat
of passion” as well as due to imperfect self-defense), on self-
defense, and on defense of one’s home.
The jury found defendant guilty of second degree murder
and found the weapon enhancement to be true. Defendant
subsequently admitted his prior convictions.
The trial court sentenced defendant to prison for 55 years
to life, comprised of a base sentence of 45 years (15 years to life,
tripled due to the two prior strikes), plus one year for the weapon
enhancement, plus five years for the prior serious felony, and
plus four years (one for each prior prison term).
Defendant filed this timely appeal.
DISCUSSION
In this appeal, defendant contends that the trial court
erred (1) in not instructing the jury that a person who uses
deadly force against an intruder within his residence is
“presumed to have held a reasonable fear of imminent peril of
death or great bodily injury,” and (2) in not modifying CALCRIM
No. 506. Defendant did not bring either claimed error to the trial
court’s attention. However, we will ignore any forfeiture

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(§ 1259),3 and will independently review the correctness of the
trial court’s instructions (People v. Simon (2016) 1 Cal.5th 98,
132-133).
I. Sua Sponte Duty to Instruct on Presumption
A homicide is justified “[w]hen committed in defense of
habitation . . . .” (§ 197, subd. (2).) The Home Protection Bill of
Rights, enacted in 1984, made this defense easier to prove by
erecting a rebuttable presumption that “[a]ny person using force
intended or likely to cause death or great bodily injury within his
or her residence” will be “presumed to have held a reasonable
fear of imminent peril of death or great bodily injury to self,
family, or a member of the household” under certain
circumstances. (§ 198.5; People v. Brown (1992) 6 Cal.App.4th
1489, 1494-1495 (Brown).) The only circumstances in which this
presumption applies, however, is where: (1) there was “an
unlawful and forcible entry into a residence”; (2) “the entry [was]
by someone who is not a member of the family or the household”;
(3) the defendant “used ‘deadly’ force . . . against the [intruder]
within the residence”; and (4) the defendant had “knowledge of
the unlawful and forcibly entry.” (Brown, at pp. 1494-1495;
People v. Curtis (1994) 30 Cal.App.4th 1337, 1361-1362; § 198.5.)
The presumption’s limitations reflect its purpose, which is “to
permit residential occupants to defend themselves from intruders
without fear of legal repercussions.” (People v. Owen (1991)
226 Cal.App.3d 996, 1005; People v. Grays (2016) 246 Cal.App.4th
679, 688 [“The bill was specifically discussed in the context of
protection against burglars”].)
3 In so doing, we obviate defendant’s claim that his counsel
was constitutionally ineffective for not objecting on these
grounds.

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A trial court’s duty to give a particular defense instruction
when there has been no request to do so turns on whether:
(1) there is substantial evidence supporting that instruction; and
(2) the instruction is not inconsistent with the defendant’s theory
of the case. (People v. Townsel (2016) 63 Cal.4th 25, 58; People v.
Abilez (2007) 41 Cal.4th 472, 517.) In assessing substantial
evidence for these purposes, we construe the record in the light
most favorable to the defendant. (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1137; People v. Posey (2004) 32 Cal.4th
193, 218.)
The trial court did not violate its duty to instruct in this
case. That is because substantial evidence did not support at
least one of the four prerequisites to the applicability of the
homeowner’s presumption—namely, the requirement that the
homicide victim be someone who made an “unlawful and forcible
entry” into the residence. (§ 198.5; Brown, supra, 6 Cal.App.4th
at pp. 1494-1495.) Both Cece and Danielle testified that Herrera
was their friend and a welcome guest in their mobile home, and
Danielle testified that Herrera was present inside the mobile
home with her permission the night he was killed. Defendant’s
testimony did not in any way touch on how the person who
attacked him had entered the mobile home. Consequently, the
only evidence in the record indicates that Herrera had not made
“an unlawful [or] forcible entry” into the mobile home. A defense
instruction premised on the opposite was inapplicable.
Defendant offers two arguments in response. First, he
asserts that it should be enough that he reasonably believed his
assailant was an intruder who had made an unlawful and forcible
entry into the home. This assertion ignores the plain language of
section 198.5 and the cases interpreting it, all of which require

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both the fact of an unlawful and forcible entry and the
defendant’s knowledge of or reasonable belief in that fact.
(§ 198.5; Brown, supra, 6 Cal.App.4th at pp. 1494-1495.) Second,
defendant urges that the presumption should apply even when
the entry was not “forcible” as long as it was “unlawful,” and
here, defendant continues, Herrera’s entry into the trailer earlier
that evening was unlawful because it was made with the intent
to do defendant harm. This argument asks us to ignore the plain
language of section 198.5, which requires proof of an “unlawful
and forcible” entry. (§ 198.5) This we cannot do. (Melissa R. v.
Superior Court (2012) 207 Cal.App.4th 816, 822 [“‘“Appellate
courts may not . . . rewrite the clear language of [a] statute to
broaden the statute’s application”’”].) A “forcible entry” is one
“with strong hand with unusual weapons, or with menace of life
or limb.” (McMinn v. Bliss (1866) 31 Cal. 122, 126-127.) No
evidence supports a finding that Herrera’s entry was effected in
such a manner; to the contrary, Herrera’s entry was with the
blessing of both the trailer’s owner and its only other occupant at
the time of entry.
II. Failure to Modify General Habitation Instruction
A. Pertinent Facts
With respect to defense of home, the trial court gave
CALCRIM No. 506, which provides that a defendant is “not guilty
of murder or manslaughter if he killed to defend himself in [his]
home” if:
“1. The defendant reasonably believed that he was
defending a home against . . . Herrera, who intended to or tried to
commit great bodily harm or murder;
“2. The defendant reasonably believed that the danger was
imminent;

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“3. The defendant reasonably believed that the use of
deadly force was necessary to defend against the danger; AND
“4. The defendant used no more force than was reasonably
necessary to defend against the danger.” (Italics added.)
That instruction further explained that “[t]he People have
the burden of proving beyond a reasonable doubt that the killing
was not justified.”
B. Analysis
Defendant argues that the trial court’s failure to omit the
italicized language effectively placed the burden on him to prove
Herrera’s specific intent, which he claims violates both due
process and the Sixth Amendment.
We reject this argument. “In reviewing [a] purportedly
erroneous instruction[], ‘we inquire “whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution.’” (People v.
Frye (1998) 18 Cal.4th 894, 957, quoting Estelle v. McGuire (1991)
502 U.S. 62, 72.) We conclude that there is no reasonable
likelihood that the jury read the italicized language to require
defendant to prove Herrera’s specific intent because (1) the
instruction makes clear that the People have the burden of
disproving any defense of justification, including disproving each
element of such a defense, and (2) the italicized language refers
to whether the victim “intended to or tried to commit great bodily
harm or murder,” and its use of “or” means that an attempt is
sufficient regardless of intent.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST

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