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United States v. Hernandez

United States District Court, D. New Mexico

December 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE HERNANDEZ, Defendant.

          John C. Anderson United States Attorney Samuel A. Hurtado Attorneys for the Plaintiff

          John Van Butcher Assistant Federal Public Defender Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Petition for Revocation of Supervised Release, filed July 9, 2018 (Doc. 47). The Court held an evidentiary revocation hearing on January 29, 2019. See Draft Transcript of Hearing, taken January 29, 2019 (“Tr.”).[1] The primary issue is whether the Court should revoke Defendant Jorge Hernandez' supervised release, because he violated a condition of his supervised release by committing a federal, state, or local crime by: (i) striking Brianna Angulo; (ii) intentionally setting fire to a kitchen; (iii) taking items without paying for them from a Shell gas station; and (iv) driving rapidly while weaving through traffic and crossing into oncoming traffic while evading police in a manner that caused at least one vehicle accident and nearly caused another accident with a police vehicle. The Court concludes by a preponderance of the evidence that Hernandez drove above the speed limit while weaving through traffic, crossing into oncoming traffic, evading police and nearly crashing into a police vehicle. The Court, thus, concludes by a preponderance of the evidence that Hernandez violated N.M. Stat. Ann. § 30-22-22, Aggravated Assault upon a Peace Officer (Deadly Weapon); N.M. Stat. Ann. § 30-22-1.1, Aggravated Fleeing a Law Enforcement Officer; N.M. Stat. Ann. §66-8-113, Reckless Driving; and multiple traffic laws, including driving through a red light, traveling on the wrong side of the road, and speeding. The Court concludes that the evidence is insufficient to support determinations that Hernandez: (i) struck Brianna Angulo; (ii) intentionally set fire to a kitchen; (iii) took items without paying for them from a Shell gas station; and (iv) caused an accident. Accordingly, the Court will revoke Hernandez' supervised release.

         PROCEDURAL BACKGROUND

         On November 22, 2016, Hernandez was sentenced to thirty months imprisonment and three years of supervised release, subject to several special conditions. See Clerk's Minutes for Proceedings at 1, filed November 22, 2016 (Doc. 42). The Court entered Final Judgment, filed December 7, 2016 (Doc. 45). While Hernandez was on supervised release, the Court issued an arrest warrant for Hernandez. See Arrest Warrant, filed July 11, 2018 (Doc. 49).

         1. Amended Petition for Warrant.

         The United States Probation Office (“USPO”) filed an Amended Petition for Warrant on September 28, 2018 (Doc. 55)(“Amended Petition”). In the Amended Petition, the USPO alleged that Hernandez had violated a condition of his supervised release: “You must not commit another federal, state, or local crime.” Amended Petition at 1. The USPO listed the ways in which Hernandez had violated this condition. First, Hernandez was arrested on July 4, 2018, for Battery (Household Member.) See Amended Petition at 1. The Amended Petition alleges that he struck his girlfriend's eye with a closed fist. Second, Hernandez was arrested on July 4, 2018, for Criminal Damage to Property (Household Member; over $1, 000). The USPO alleges that Hernandez was “setting a fire on the stove top and was using paper towels and other items” and that the kitchen table was “flipped over and broken.” Amended Petition at 2. Third, Hernandez was arrested on July 4, 2018, for Arson ($250 or Less in Damage). The USPO alleges that Hernandez' girlfriend, Brianna Angulo told police she saw smoke at the residence. See Amended Petition at 2. Upon entering the residence, the officers smelled smoke. See Amended Petition at 2. Upon entering the residence's kitchen, the officers saw Hernandez using paper towels and other items to set a fire on top of the stove. See Amended Petition at 2. On a July 9, 2018, telephone call with the USPO, Hernandez said that he started the fire to commit suicide. See Amended Petition 2. The USPO told Hernandez to report to the USPO within an hour, which Hernandez did not do. See Amended Petition at 2.

         Next, on July 16, 2018, Hernandez was arrested for Aggravated Assault Upon a Peace Officer (Deadly Weapon). See Amended Petition at 2. The USPO alleges that Rio Rancho police officers responded to a dispatch that stated that a male, Hernandez, had shoplifted items from a Shell gas station. See Amended Petition at 2. One of those officers parked on the side of the road to await the shoplifter, and Hernandez' car nearly crashed into the officer's car. See Amended Petition at 2. Hernandez then fled from the officer and was arrested three days later. See Amended Petition at 2. Next, Hernandez was arrested on July 16, 2018, for Aggravated Fleeing a Law Enforcement Officer on July 13, 2018. See Amended Petition at 2. The USPO alleges that Hernandez fled a police officer while driving at “a high rate of speed, swerving in and out of both lanes of travel crossing the double yellow lines in the roadway.” Amended Petition at 2. Next, Hernandez was arrested on July 16, 2018, for Shoplifting (over $250 but not more than $500) on July 13, 2018, at a Shell gas station. See Amended Petition at 2. Next, Hernandez was arrested on July 16, 2018, for Reckless Driving; Leaving the Scene of an Accident; and several traffic violations on July 13, 2018. See Amended Petition at 2.

         The USPO advises that, because Hernandez' underlying crime is a Class C felony, the maximum statutory penalty is two years imprisonment and three years supervised release. See Amended Petition at 3. The USPO states that, because Hernandez has a Criminal History Category of VI and committed Grade B violations of his supervised release condition, the revocation range of imprisonment is between twenty-one and twenty-seven months. See Amended Petition at 3.

         2. Hearing.

         The Court held an evidentiary hearing on January 28, 2019. See Tr. at 1:22 (Butcher). The United States introduced Jacob Hopkins, a Rio Rancho police officer, and stated that Hopkins would be acting “as a case agent of sorts today.” See Tr. 2:5-10 (Hurtado). The USPO told the Court that the violations of supervised release at issue did not make revocation mandatory. See Tr. at 5:24-6:2 (Court, Villalobos). Hernandez pled not guilty to all charges. See Tr. 9:5-7 (Butcher). The United States first called Katrina Villalobos, a United States Probation Officer, to testify as a witness. See Tr. 9:22-10:18 (Hurtado, Court, Villalobos). The United States next called Hopkins, who was at the scene of the alleged arson and battery, to testify as a witness. See Tr. 18:14-18:22 (Hurtado, Court, Hopkins). The United States next called Ingram[2], a Rio Rancho Police patrol officer who was at the scene of the alleged reckless driving and shoplifting, to testify as a witness. See Tr. 35:16-37:5 (Hurtado, Court, Ingram). The United States next called Hickerson, [3] a Rio Rancho police officer who was at the scene of the alleged reckless driving, aggravated assault of a peace officer, and aggravated fleeing from a peace officer, to testify as a witness. Tr. at 48:21-50:16 (Hurtado, Court, Hickerson). Neither party called any further witnesses. See Tr. at 59:3-8 (Hurtado, Court, Butcher). The Court concluded that Hernandez had “violated supervision, ” Tr. at 68:11 (Court), and gave a sentence, in accordance with the “guideline range, ” of twenty-one months imprisonment and twelve months supervised release, Tr. 74:23 (Court). See Tr. 74:17-77:1 (Court).

         FINDINGS OF FACT

         The Court held an evidentiary hearing on the revocation of supervised release. The Court makes the following findings of fact related to the issues. Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. In making its findings, the Court does not consider any evidence or testimony from the hearing that violates the United States v. Jones test. See United States v. Jones, 818 F.3d 1091, 1099 (10th Cir. 2016).

         1. Background.

         1. On July 13, 2016, Hernandez entered a plea agreement in which he pled guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). See Plea Agreement, filed July 13, 2016 (Doc. 34).

         2. The Court sentenced Hernandez to thirty months imprisonment with three years of supervised release and with the mandatory condition that Hernandez “must not commit another federal, state, or local crime” on supervised release. Judgment in a Criminal Case at 2-3, filed December 7, 2016 (Doc. 45).

         2. July 4, 2018, Domestic Events.

         3. Hopkins has worked as a police officer with the Rio Rancho Police Department for around four years, and he previously had served as a police officer with the Sandoval County Sheriff's Office for around three years. See Tr. at 18:24-19:4 (Hopkins).

         4. Around 3:45 a.m., on July 4, 2018, Hopkins was on duty in the City of Rio Rancho. See Tr. at 19:8-10 (Hopkins, Hurtado).

         5. Hopkins received a call about a domestic disturbance at 146 Prado Verde Court, Rio Rancho. See Tr. at 19:12-14 (Hopkins); id. at 20:7-11 (Hopkins).

         6. Maria Hernandez, Hernandez' sister, had also been at the residence at the time. See Tr. at 32:20-21 (Hopkins).

         7. Angulo's face displayed bruises and swelling on the left side. See Tr. at 22:23-25 (Hopkins); Picture of Angulo at 1 (sent November 21, 2018).

         8. When Hopkins arrived at the house, Angulo was standing outside the house, appeared distressed, see Tr. at 22:2-5 (Hopkins), and urged Hopkins and the officer accompanying him to enter the house, because Hernandez was “attempting to set [the] house on fire, ” Tr. at 22:7 (Hopkins). See id. at 22:6-7 (Hopkins).

         9. Hopkins approached and then entered the home with Officer Anthony Tortorici. See Tr. at 25:13-14 (Hopkins).

         10. Hopkins and Tortorici stopped at the front door to inform whoever was inside that the officers were Rio Rancho police officers and to ask the location of any individual inside. See Tr. at 25:15-21 (Hopkins).

         11. Hopkins and Tortorici received no response. See Tr. at 25:21-22 (Hopkins).

         12. When at the “threshold of the front door, ” Tr. at 25:23 (Hopkins), Hopkins smelled “a strong odor of . . . natural gas” and heard a smoke detector sounding, Tr. at 25:24 (Hopkins). See Tr. at 25:21-26:2 (Hopkins).

         13. Hernandez was “attempting to light the stove on fire with paper towels and chemical agents on top of the gas stove.” Tr. at 14-16 (Hopkins).

         14. The stove's natural gas, the residence's back wall, paper towels, and other objects were burning. See Tr. at 33:16-23 (Hopkins, Hurtado).

         15. When Hopkins and Tortorici approached Hernandez, Hernandez appeared agitated. See Tr. at 26:19-20 (Hopkins).

         16. Hernandez kept one hand behind his back throughout his confrontation with Hopkins and Tortorici. See Tr. at 26:20-27:1 (Hopkins).

         17. Hernandez continued to move the stove's knobs and to add additional chemical agents to the stove after Hopkins and Tortorici reached the kitchen. See Tr. at 2 7:1-3 (Hopkins).

         18. Hernandez threatened, in a “hostile and aggressive” manner, to kill Hopkins and Tortorici. Tr. at 27:12 (Hopkins). See id. at 27:5-12 (Hopkins, Hurtado).

         19. Hopkins and Tortorici eventually subdued Hernandez and removed him from the house in handcuffs. See Tr. at 28:17-18 (Hopkins); id. at 28:21-24 (Hopkins).

         20. Hernandez damaged the kitchen table and other objects within the house when he threw items from the home's kitchen table and counters. See Tr. at 31:14-18 (Hopkins).

         3. July 9, 2018, USPO Interaction.

         21. On July 9, 2018, Hernandez notified probation that the Rio Rancho Police Department had arrested him on July 4, ...


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