Metropolitan News-Enterprise


Tuesday, June 3, 2003


Page 1


Court Cites Penalty Phase Errors, Overturns Death Sentence For Modesto-Area Killer Allegedly Paid in Heroin, Cocaine


By a MetNews Staff Writer


The death sentence of a Stanislaus County man was unanimously overturned yesterday by the California Supreme Court, which held that “numerous and serious errors” during the penalty phase require a new sentencing trial.

The justices ordered the new trial for Jesus Cianez “Jesse” Hernandez, one of three defendants convicted in separate trials for the 1988 murder of 22-year-old Esther Alvarado, who lived in the small Stanislaus County town of Grayson.

Jurors also convicted Hernandez of conspiracy to kill Alvarado and found that the murder was committed for financial gain. The special-circumstance finding was based on evidence that the other defendants, Alfredo Padilla and Brenda Prado, promised him heroin and cocaine.

Padilla was also sentenced to death for the murder of Alvarado, which prosecutors theorized was committed because the victim had not paid Padilla and Prado for drugs. Padilla’s sentence was affirmed in 1995 and his habeas corpus petitions are pending in state and federal courts.

Prado was convicted of murder without special circumstances and sentenced to 25 years to life imprisonment.

The body of Alvarado, who was shot to death, was found off a rural roadway a half-mile south of Grayson. The name “Jesse” was scratched in the mud near her body and prosecutors said the dying woman had identified her killer in the last moments of her life.

Hernandez offered an alibi defense and claimed that the real killer had scratched his name in the mud in order to frame him.

In the penalty phase, prosecutors presented evidence that Hernandez had committed several other offenses. He had been convicted of a 1977 armed robbery, a 1983 burglary, and a jailhouse assault committed while awaiting trial for the murder.

He had also been convicted of an earlier felony, pleading guilty on advice of his attorney, Charles V. Stone. Stone, who was the county’s public defender before his 1975 appointment to the bench, was the judge at the murder trial, in which prosecutors elected not to introduce evidence of that earlier crime.

The lead defense attorney at the murder trial, Kirk McAllister, had been the prosecutor in the armed robbery case. McAllister was the original attorney for accused wife-killer Scott Peterson, while one of the prosecutors at Hernandez’s trial, James Brazelton, is now the county’s district attorney and the lead prosecutor in the Peterson case.

In addition to the prior convictions, prosecutors presented evidence linking Hernandez to a 1982 murder in which the victim was hit six times with a claw hammer. Hernandez was arrested for the crime, but never formally charged due to what prosecutors concluded at the time was a lack of sufficient evidence.

Prosecutors presented testimony from the 1982 victim’s sister that her brother told her a week before he died that he feared that Hernandez and two other men were going to kill him. That testimony figured in yesterday’s decision, as the high court held it was inadmissible hearsay.

Stone, since retired from the bench, sentenced Hernandez to death for the murder of Alvarado and life imprisonment without parole for conspiracy.

Justice Joyce L. Kennard, writing yesterday for the high court, said Hernandez was properly convicted of murder. She said there was no reversible conflict of interest in Stone having previously represented the defendant, since his prior representation of the defendant does raise a presumption of a pro-prosecution bias and there was no showing that his prior representation of Hernandez left him biased against his former client.

The justice did conclude, however, that the conspiracy sentence exceeded the maximum allowed by law and that the death sentence was tainted by the judge’s evidentiary and instructional errors in the penalty phase.

With respect to the conspiracy, Kennard cited Penal Code Sec. 182, which provides that the punishment for conspiracy to commit murder is “the punishment . . . prescribed for murder in the first degree.”

That language must be construed to mean the punishment for murder in the first degree without special circumstances, meaning 25 years to life, the justice said.

Kennard reasoned that California voters, when they restored the death penalty in 1978, did so in the wake of a series of U.S. Supreme Court decisions which held that capital punishment could be imposed for some murders, but which cast doubt on whether it could ever be imposed for crimes in which no life was lost.

Nor, the justice said, was there any indication that voters intended to apply the special-circumstances analysis, which provides the only basis for a sentence of death or life-without-parole, to conspiracy to murder. It seems implausible, she said, that the intent was to punish conspiracy to murder so much more harshly than attempted premeditated murder, which carries a life sentence with possibility of parole after seven years.

Turning to the penalty phase, Kennard identified three serious errors she said Stone committed—allowing evidence of a crime for which Hernandez had been tried and acquitted; misadvising the jury with regard to the effect of testimony by a prosecution witness about the uncharged murder; and admitting the hearsay testimony of the victim’s sister about the 1982 murder.

The first error, Kennard explained, was a result of a prosecution erroneously telling the judge that the defendant had been convicted of assault on a deputy sheriff, when in fact he had been acquitted of that charge and convicted of assault on a fellow inmate.

The instructional error, the justice went on to say, dealt with the testimony of Earl Rodrigues that Hernandez was involved in the murder. Because the defense argument that Rodriguez had actually done the killing had support in the evidence, including the testimony identifying Rodriguez as one of the men the victim feared would kill him, the justice said, Stone should have granted a request for accomplice instructions.

In addition, Kennard said, the judge should not have given the standard instruction, CALJIC 2.11.5, advising jurors not to speculate on why Rodrigues was not charged with the murder. “We have often said that trial courts should not give CALJIC 2.11.5 in an unmodified form when, as here, a person who might have been prosecuted for the crime has testified at trial,” the justice said.

“These errors, [including admission of the hearsay testimony] considered together, may have fatally distorted the jury’s consideration of the prosecution’s most important aggravating evidence,” that defendant had killed before.

There was also some question as to the propriety of admitting evidence concerning the 1977 robbery, Kennard said in a footnote, given that defense attorney McAllister had prosecuted that case.

The case is People v. Hernandez, 03 S.O.S. 2723.


Copyright 2003, Metropolitan News Company