P. v. German 6/21/06 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B182673

Case Date: 09/27/2006

Preview:Filed 6/21/06 P. v. German and Hernandez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. ELISEO GERMAN and PEDRO HERNANDEZ, Defendants and Appellants.

B182673 (Los Angeles County Super. Ct. No. BA265029)

APPEAL from judgments of the Superior Court for Los Angeles County, Rand S. Rubin, Judge. Affirmed as Modified. Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Pedro Hernandez. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Eliseo German. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants and appellants Pedro Hernandez and Eliseo German, along with co-defendant Danny Banchon, were convicted of assault with force likely to result in great bodily injury, a violation of Penal Code section 245, subdivision (a)(1). The jury found that all defendants committed the assault for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1), and found that German and Banchon personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). Hernandez was sentenced to a prison term of six years, and German was sentenced to a prison term of 26 years. Hernandez and German appeal. We affirm.
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BACKGROUND During the early morning hours of May 12, 2004, Lawrence Brodbar, who worked in the Los Angeles Times warehouse on Westmoreland Avenue near Cosmopolitan Street in Los Angeles, saw a homeless man, Charles Burst, run into the warehouse yelling, "Call the police." Two men ran in after Burst and started hitting him with sticks. A third man also came into the warehouse, bleeding and yelling that Burst tried to rob him and had stabbed him. Brodbar went back into his office and called 911. When he came out of his office he saw the first two men dragging Burst out of the warehouse. Brodbar could not identify any of the men involved in the incident.

Banchon is not a party to this appeal. Counsel for German informed us at oral argument that Banchon filed a late appeal, and asked us to consider Banchon's arguments to the extent they are applicable to German. Because we do not have Banchon's appeal before us, we are unable to do so. Therefore we decline German's request.
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Further undesignated statutory references are to the Penal Code. 2

Sergeant Eddie Solomon was the first police officer to arrive at the scene in response to the 911 call. As he drove north on Westmoreland, he saw a male Hispanic, whom he identified as German, walking south on Westmoreland. When Solomon asked him what was happening, German changed direction and started walking north, where he met up with another man, whom Solomon identified as Hernandez, wearing a bloody T-shirt. Solomon continued to follow Hernandez. He tried to determine whether Hernandez was a victim or a suspect, and whether he needed assistance. When Hernandez continued to walk away, Solomon got out of his patrol car and grabbed Hernandez's T-shirt. Hernandez lowered his head to slip out of the T-shirt, and walked away. Solomon eventually was able to detain Hernandez with the assistance of a security guard. Solomon then called for an ambulance to take Hernandez to the hospital, where he stayed for eight days. In the meantime, Officer Carlos Diaz and his partner responded to the scene and saw Burst, bleeding from his head, sitting on the sidewalk on Cosmopolitan near Westmoreland, near a makeshift tent. Diaz asked Burst what happened to him. Burst told him that he was asleep in his tent when three male Hispanic "gangsters" started tearing down his tent and hitting him with broken bottles and wooden sticks. He told the officer that he grabbed a knife that he keeps in his tent, stabbed one of the men, and ran across the street to the warehouse to plead for help. He said that the men chased after him, continued to hit him, and then dragged him outside into the street. Diaz looked around the area where Burst was sitting and saw two wooden sticks on the ground, one of which had nails or screws sticking out of it. Diaz secured the sticks and accompanied Burst in an ambulance to the hospital. Blood was found on the nails or screws. D.N.A. testing showed that the blood matched Burst's blood. Officer Marco Oropeza and his partner also responded to the scene. When they arrived they saw two male Hispanics running in their direction. When the
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officers got out of their patrol car and identified themselves, the men started to run away. The officers chased after them and Oropeza saw them run into the Los Angeles Times warehouse. The officers secured the building and called for backup to help search the building. Eventually, Oropeza found the two men, identified as German and Banchon, hiding in the rafters. When German and Banchon came down from the rafters, German was not wearing a shirt, and Banchon was not wearing shoes or socks. Oropeza then climbed into the rafters and recovered a shirt, a pair of shoes, and a pair of socks, all of which had blood stains on them. Officer Iris Santin also responded to the scene and interviewed Abel and Victor Godinez, who worked in the warehouse. Abel told Santin that he saw two people, who appeared to be nervous and looking for a rear exit, enter the warehouse. He field identified German and Banchon as the two people he saw. Victor told Santin that he saw two male Hispanics run into the warehouse. He said they appeared to be nervous and sweating, and were looking for a place to hide. Officer Fernando Prieto interviewed Burst in the hospital on the day of the incident. Burst told Prieto that he was attacked by three male Hispanics. He said he was asleep in his tent when he was awakened by someone entering his tent. One of the men yelled at him and hit him in the head with a bottle, and then all three men started hitting him with sticks and other objects. He told Prieto that, fearing for his safety, he grabbed a knife and stabbed one of the men. He was able to break away and ran to the warehouse, where he was beaten again and then dragged outside. Prieto asked Burst whether he knew the men. Burst said he knew they were Rockwood gang members from seeing them in the area and knowing that the area was Rockwood territory. But Burst told Prieto that he would not identify anyone in court and wanted to "drop the whole thing." Prieto observed that Burst appeared to have puncture wounds on his hands and arms, among other injuries.
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Hernandez, German, and Banchon were charged by information with attempted premeditated murder in violation of section 664/187, subdivision (a), and assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1). As to both counts, it was alleged that all three defendants personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), and that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (

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