People v. Hernandez CA2/6

Opinion

Filed 9/16/26 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B343948 (Super. Ct. No. 2022022300) Plaintiff and Respondent, (Ventura County)

v. EMIGDIO HERNANDEZ, JR., Defendant and Appellant.

Emigdio Hernandez, Jr., walked into a 7-Eleven, took some beer, and walked out without paying. When the store owner tried to retrieve the beer, appellant attacked him. A jury convicted appellant of robbery (Pen. Code, § 211)1 rather than the lesser offenses of theft and battery. Appellant contends the prosecutor committed prejudicial misconduct by encouraging the jury to consider punishment when she mentioned that the robbery was a felony and the lesser offenses were misdemeanors. We reject appellant’s contention and affirm the judgment.

1 All further statutory references are to the Penal Code. Procedural Background In February 2023, the Ventura County District Attorney filed a one-count information charging appellant with robbery. (§ 211.) The information alleged appellant suffered a prior strike conviction (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)) and a prior serious felony conviction (§ 667, subd. (a)(1)). It also alleged five aggravating factors for sentencing. (Cal. Rules of Court, rule 4.421(b)). After a jury trial, appellant was convicted of second degree robbery. In a bifurcated trial, the jury found the prior allegations and multiple aggravating circumstances true. The trial court exercised its discretion to strike the prior serious felony conviction enhancement and sentenced appellant to a total of four years in state prison, comprised of the low base term of two years, doubled pursuant to the “Three Strikes” law. Factual Background The Prosecution’s Case On September 1, 2022, Vidya Jayakulasooriya and his wife, Kauschalya DeSilva, were working at the 7-Eleven store they own in Ventura when appellant walked in, took two cases of beer, and left without paying. DeSilva, who was at the register, screamed to her husband in the back room. Jayakulasooriya, who was wearing an ash-colored shirt with a two-inch 7-Eleven logo on it, ran out of the store after appellant. When Jayakulasooriya tried to grab the beer from appellant, one of the cases ripped and beer bottles fell to the ground. Without saying a word, appellant placed the other case of beer on the ground and tried to punch Jayakulasooriya approximately three or four times. Jayakulasooriya retreated 2 but one of the punches struck him in the mouth, causing a visible injury. After Jayakulasooriya returned to the store, appellant picked up the unbroken case of beer, walked to a car that was about 100 meters away, entered the passenger side and told the driver, “go, go, go.” The car drove away. The incident was captured on the store’s video surveillance. Ventura Police Officer Evan Gonzalez responded to the store at approximately 1:16 p.m. He viewed the surveillance video and left. Shortly thereafter, at approximately 3:35 p.m., Officer Gonzalez responded to a call at the Star Lounge Bar regarding an inebriated customer. As Officer Gonzalez was tending to the customer, he saw appellant walking down the street, wearing the same clothing as the suspect in the video surveillance from the 7-Eleven store. Officer Gonzalez detained appellant, who appeared to be intoxicated. After reading appellant his rights, appellant admitted that he did not pay for the beer and offered to “go pay for it right now.” He claimed that he “remember[ed] everything,” that the storeowner threw a beer at him and tried to “swing” at him, and that they were both swinging at each other. Jayakulasooriya subsequently identified appellant in a field-show up. The Defense Case Appellant testified that at the time of the incident, he was intoxicated and thought he had paid for the beer. He did not know Jayakulasooriya was the store owner. Appellant worked at a 7-Eleven and knew their uniform “well.” Jayakulasooriya was not wearing a uniform. When Jayakulasooriya grabbed appellant’s hand, they started “scuffling.” Appellant did not fight 3 Jayakulasooriya to keep the beer. Instead, he did not know who Jayakulasooriya was, but he had invaded appellant’s personal space by touching him. After the incident, appellant left the unbroken case of beer “over at the corner,” and the officers “didn’t look too hard because they would have found it.” Appellant also testified that he was drunk when he told Officer Gonzalez that Jayakulasooriya threw a beer at him, that it “didn’t happen.” On cross examination, appellant admitted that he was aware that he took the beer without paying. Discussion Appellant contends the prosecutor committed misconduct when she “encouraged the jury to consider punishment during closing argument.” Considering the challenged statements in context of the prosecutor’s entire argument, we discern no misconduct. Even assuming the prosecutor’s statements constituted misconduct, any misstatement was harmless. During jury selection, the trial court told the prospective jurors that appellant was charged with the crime of second degree robbery, a felony, in violation of section 211. Prior to the prosecutor’s closing argument, the trial court instructed the jury on the crime of robbery, the “lesser included offense” of theft, and the “lesser related offense of” simple battery. The jury was also instructed with CALCRIM No. 3517, which repeatedly described the charged offenses as “greater” and “lesser” crimes. After instructions, the prosecutor began her closing argument, as follows: “So what counts are going to be before you? Well, the judge has just mentioned them. But there are three: Robbery, battery, and petty theft. ¶ So robbery is the felony. Felonies are a more serious charge [than] the misdemeanors, the battery - - ”

4 Defense counsel objected that this was improper argument and the trial court overruled the objection. The prosecutor continued: “And the reason I bring this up is because sometimes when juries are given multiple offenses and some of them are felonies and some of them are misdemeanors, if they think it’s hard to come to a verdict on the felony or they think that the conduct in the case wasn’t a big deal, they’ll just say oh, okay, let’s compromise. Let’s just convict him of the misdemeanor. We don’t want to deal with the felony. Let’s just vote not guilty on the felony. And I would ask that you please refrain from doing something like that because the counts need to be considered separately. They all have their own distinct elements. ¶ Now, I’m going to dedicate my closing to talking about the most severe crime, that is the robbery.” Asserted Prosecutorial Misconduct A claim of prosecutorial misconduct is governed by the abuse of discretion standard of review. (People v. Peoples (2016) 62 Cal.4th 718, 792-793.) The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘ “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citations.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v. Samayoa (1997) 15 Cal.4th 795, 841.)

5 A prosecutor is given wide latitude during argument, which may include reasonable inferences and deductions that can be drawn from the evidence. (Hill, supra, 17 Cal.4th at p. 819; People v. Friend (2009) 47 Cal.4th 1, 29.) “ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ ” (People v. Brown (2003) 31 Cal.4th 518, 553-554.) Appellant contends the prosecutor’s comments were “reprehensible” because, by emphasizing that robbery is a felony, and battery and petty theft are misdemeanors, the prosecution “focused the jury’s attention on punishment.” We disagree. The prosecutor was merely restating what the jury already knew—that is, that the robbery was charged as a felony, which is the “greater crime,” while petty theft and battery are “lesser crimes.” (See People v. Perez (2017) 18 Cal.App.5th 598, 625 [not misconduct for prosecutor’s reminder to the jury, “consistent” with the given instruction, not error].) At no time did the prosecutor mention the type of punishment the crimes carried. The prosecutor’s remarks, taken in context, were simply an admonition to the jury not to compromise their deliberations by settling on a lesser offense because a determination on the greater offense was difficult. On this record, there was no reasonable likelihood the jury would have applied the prosecutor’s remarks erroneously, i.e., to impermissibly consider punishment in determining guilt.

6 Appellant’s contention that the trial court “endorsed that focus” by overruling appellant’s improper-argument objection is not persuasive. Harmless Error Even assuming the prosecutor’s remarks during closing argument can be read as appellant suggests, the asserted misconduct was not prejudicial under any standard. As the United States Supreme Court observed, “[A]rguments of counsel ‘generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely to viewed as the statements of advocates; the latter, . . . are viewed as definitive and binding statements of the law.’ ” (Boyde v. California (1990) 494 U.S. 370, 384; see also People v. Mendoza (2007) 42 Cal.4th 686, 703 [so noting].) Here, the trial court instructed the jury that: “Nothing the attorneys say is evidence.” (CALCRIM No. 104); “You must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” (CALCRIM No. 200); and, “You must reach your verdict without any consideration of punishment.” (CALCRIM No. 3550). We presume the jurors understood and followed the instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Further, the evidence of appellant’s guilt was overwhelming. The incident was captured on video surveillance, which was played for the jury. The jury heard witness testimony, including from appellant, that he walked into the 7-Eleven and took the beer without paying. A scuffle ensued shortly thereafter, and when Jayakulasooriya attempted to grab the beer, appellant 7 punched him in the face. Appellant then got into the passenger side of a car, and told the driver to “go, go, go.” Appellant testified that he did not know who Jayakulasooriya was when he grabbed appellant’s hand and entered his personal space. That is irrelevant. The only mens rea requirement for robbery is that “[w]hen the defendant used force or fear, he intended to deprive the owner of the property permanently.” (CALCRIM No. 1600.) Given this overwhelming evidence, we conclude any misstatement by the prosecutor was manifestly harmless. For the first time in his reply brief, appellant raises arguments related to (1) Proposition 36, “a prominent political issue at the time of appellant’s trial,” which highlighted the distinction between felonies and misdemeanors, and the punishment for each,2 and (2) the jury’s deliberation time of one hour and 40 minutes, which suggests the jury did not find appellant’s guilt of robbery “so overwhelming.” Appellant has forfeited both of these belatedly raised arguments. “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it . . . [h]ence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before.” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) No good cause is shown.

2 Appellant asks this court to take judicial notice of the Voter Information Guide from November 5, 2024, regarding Proposition 36. Because appellant’s argument relying on this information is not properly before us, we decline to do so. The request for judicial notice is denied.

8 In any event, appellant’s arguments are not persuasive. Even if some jurors may have been aware of Proposition 36 and the distinction between felonies and misdemeanors/punishment, there is no reasonable probability that the jurors not only misinterpreted the prosecutor’s remarks but then also ignored the trial court’s clear instructions that they must not consider punishment in reaching their verdict. Moreover, the speed with which the jury returned its verdict suggests the strength of the prosecution’s case. (See People v. Robertson (1982) 33 Cal.3d 21, 36.) In sum, the record does not support appellant’s contention that the prosecutor used deceptive or reprehensible practices or that the challenged comments “infected the trial with such unfairness” that his resulting conviction was a denial of due process. As such, reversal is neither warranted nor appropriate. Disposition The judgement is affirmed. NOT TO BE PUBLISHED.

YEGAN, J. We concur:

CODY, P. J.

BALTODANO, J.

9 Maureen M. Houska, Judge Superior Court County of Ventura _____________________________ Law Offices of Jason Szydlik and Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, John Yang and Patricia Rosman, Deputy Attorneys General, for Plaintiff and Respondent.