5DCA Oral Argument - 2026/07/14 - Jul 14, 2026
argument5DCA Oral Argument - 2026/07/14
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Mm.
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What?
Yeah.
Oh Well
Mm-hmm.
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Yeah.
Good morning. Please be seated.
Only the first man are people versus Hernandez. Please state your appearances.
Uh good morning Richard Oberto for Mr. Hernandez. Uh William Kim for the respondent.
Thank you both. Uh I believe um you've requested thirty minutes and you've requested fifteen. Did you wish to reserve any portion of that time? Ten minutes. Okay, we'll watch the clock. We'll ask excuse me that you do the same. I would just note that we're very familiar with the facts of this case and would ask that you keep that in mind uh during the course of the argument. No further ado, please
proceed. Thank you. Good morning again, Justices of the Court. Uh the respondent and I agree that at least one error here warrants a reversal. I come today to address the full set of errors that warrants a reversal. Uh for the first main error, the court should have vacated the the the gang enhancements. When Mr. Hernandez appeared for his resentencing, the gang laws had changed. the gang laws the change in the gang laws gave rise to i instructional error. We agree on the instructional error and we agree in part on the resulting prejudice. We agree that there was prejudice uh with respect to the uh s uh requirement of a pattern of criminal gang activity. Uh there was no evidence at the trial to support that pattern of criminal gang activity.
The gang expert testified To that effect, but the testimony was based on hearsay, and that testimony is incompetent and inadmissible under the current law. Now we disagree on a few other areas regarding uh the gang, the gang evidence. We disagree about whether the evidence supported the conclusion that the gang was organized. At the trial, we did have evidence that the gang shared certain affinities. Um they shared an affinity for Certain clothes, colors, numbers, music, and even crimes. What we lacked was evidence that the gang had any kind of leadership. any kind of hierarchy. Any kind of command structure. So in that respect, the lack of instruction that the gang must be organized was not harmless beyond a reasonable doubt.
Um in another area uh that we disagree uh is is regarding the evidence uh that the gang that the present offense uh carried a common benefit for the gang that was more than reputational. Um and we don't have uh the evidence there that the uh that there was a common benefit that's more than reputational. We had the prosecution gang expert who testified Along the lines that The offense here wa involved targeting rivals. Um that would be a non reputational benefit, but the testimony was defective in a crucial respect. The expert relied on Hearsay to opine that the victims were members of the rival Sereno gang. Uh when he talked about the victims he referred to records he reviewed about them. Those records were hearsay and it resulted in an incompetent opinion about those victims under the current law.
We have no independent evidence about what those records were. um i in what the contents were. No independent uh uh proof there. So We have uh uh the victims we do have evidence that victims were wearing blue and uh two of them are wearing dark blue, and one of them is wearing blue and white. Um i That's not sufficient to establish that the error here was harmless beyond a reasonable doubt doubt. All we have is they're wearing some kind of blue. and we lack the actual expert testimony opining that these guys um are uh Serenial gang members. So the court should find that uh uh should reverse with orders to vacate the gang enhancements for all these reasons, not just the pattern of criminal gang activity.
Um We also have uh a series of alternative errors here and the first is that the court should have dismissed the game related firearm enhancement under Penal Code Section thirteen eighty five. And that is even if we don't vacate the enhancement uh for the lack of proof based on the instructional error, we should have had the dismissal under thirteen eighty five. There were two factors in this case that carried great weight in favor um of a dismissal.
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