 Giovanni Hernandez (Photo: Loyola Law School)
Two young women, sisters Sophia and Vanessa Garcia, who were of no relation to Victor Garcia, were also in the car at the time of the shooting. Sophia told one of the Culver City officers that four of them were on their way to the beach and had stopped at a house on McLaughlin to pick up Ortiz, who was her brother. Ortiz got in the car and said that Robert Cortez, another young man who lived at the house, would be joining them.
As they waited in the car for Cortez, a car with three young Hispanic men pulled up beside them. One of the men inside that car asked, “Where you from?” Very quickly, Sophia Garcia said, the front passenger in that car fired numerous shots into the Toyota. Delatorre tried to speed away but crashed.
Culver City is surrounded by Los Angeles, and the border between the two communities runs down McLaughlin. The shooting happened on the west side of the street, which was just beyond the Culver City line, and the Los Angeles Police Department took over the investigation. They recovered seven 9 mm casings at the crime scene.
Detectives Blanca Lopez and Joe Lumbreras interviewed the Garcia sisters on August 1. Sophia Garcia said the three suspects were all Hispanic men in their early 20s, with short dark hair and dark complexions. The driver and front passenger had medium builds. The rear passenger had a larger build. Sophia said the front and rear passengers had guns but did not say which person was the shooter. She also did not give a description of their car.
Vanessa Garcia said the three men were in an older, gray compact, four-door car. She said they were Hispanic, short in stature, and about 18 years old. Vanessa said the suspect in the rear of the car had a gun and he was also the person who asked Garcia and her friends where they were from. She said this man was about 18 years old, with a dark complexion, short hair with a fade, and a round face with bushy eyebrows.
Several other persons who lived on McLaughlin told the police that they heard gunfire and saw a maroon or burgundy Toyota speed north. None of these witnesses were able to give detailed descriptions of the persons inside the car.
On August 1, a detective in the police department’s Pacific Division Gang Unit received an anonymous tip that the Ortiz shooting might have been related to the shooting of Jon Carillo, which occurred at a gas station at about 12:40 a.m. on July 30, after Carillo and a friend left a house party in nearby Venice.
Carillo had been taken to St. John’s Hospital in Santa Monica, and Victor Garcia ended up on the same floor about 11 hours later. The anonymous caller said they heard Carillo, Jose Zapien and Luis Castillo talking in Carillo’s room about retaliation.
Carillo, Zapien and Castillo were members of the Sotel 13 gang. Its territory was just north of a rival gang, the Culver City Boys, whose members included Ortiz and Cortez.
On August 10, the police department’s Firearms Analysis Unit reported that all the casings found at the Ortiz crime scene had been fired from the same weapon and that they “matched” casings from a shooting in Santa Monica on July 9, 2006. In the Santa Monica shooting, the victim was a gang member, and a Santa Monica police detective said that Sotel 13 was suspected of being responsible.
The day earlier, Lumbreras and Blanca Lopez had met with Gang Officer Augustin Lopez and a colleague, who provided the detectives with names of recently active members of Sotel 13. The detectives used that information to prepare a six-pack photo array, which included the photo of 14-year-old Giovanni Hernandez in position 6.
Hernandez’s photo was in the system because he had been charged with possession of a knife near Webster Middle School on March 6, 2006, after the police stopped him and two members of Sotel 13. Hernandez told the police he was near the school because he was trying to return the knife to its proper owner, who lived nearby. The report said the incident was “handled informally.”
Vanessa and Sophia Garcia each viewed the photo array on August 14. According to the police reports, Vanessa said: “Photo #6 is the person I saw in the back seat of the car that shot at us. I’m sure it was him. I saw him with a gun and shoot.”
Sophia said: “The person in #6 looks like the passenger in the back seat of the car who shot my brother. I think he had a gun but I’m not sure.”
Police arrested Hernandez on August 24, 2006. He waived his Miranda rights. During an interview at a police station with the detectives and Lopez, the gang specialist, Hernandez denied any involvement in the shooting and asked to take a polygraph to prove his innocence. He said he was at home when the shooting happened and heard about it on the news. Hernandez said he joined Sotel 13 only two months earlier, but wasn’t actually a member, as he hadn’t been initiated, or “jumped” in.
Hernandez was charged with one count of first-degree murder, four counts of attempted murder, and one count of shooting at an occupied motor vehicle.
At the time of his arrest, Hernandez had his cellphone. His father gave the detectives the password information to the Verizon account, enabling the police to obtain the call logs, which showed numerous calls in the early morning of July 30. At the approximate time of the shooting, Hernandez missed four calls from a friend and neighbor named Edy Hernandez, and he returned Edy’s calls at 11:35 a.m.
At a preliminary hearing on November 13, 2006, Edy Hernandez testified as a prosecution witness. He said that Giovanni called him at some point on July 30 and told him to watch the TV news, because there was a story about the shooting. Edy said he ran into Hernandez a few days later and asked Hernandez about the shooting. He testified that Hernandez said not to worry about it because it didn’t concern Edy.
Sophia Garcia identified Hernandez at the hearing as the person she saw in the rear of the car. During cross-examination, Hernandez’s attorney questioned Garcia about her description of the shooter, whom she now said was the rear passenger and whom she had described as having a larger build than the other occupants of the car. At the time of his arrest, Hernandez was 5’3” tall and weighed 115 pounds.
California law allows law-enforcement officers to give hearsay testimony at preliminary hearings about statements from victims and witnesses. Vanessa Garcia didn’t testify, but Lumbreras testified about her identification of Hernandez and also about his conversations with Hernandez’s father, Sebastian Hernandez Sr. According to Lumbreras, the father said that he knew Giovanni was hanging out at Stoner Park with Sotel 13 gang members.
Hernandez’s first trial in Los Angeles County Superior Court ended in a mistrial on January 5, 2011, when the jury could not reach a unanimous decision. At that trial, the state and defense had stipulated that Hernandez had four missed cellphone calls between 11:24 and 11:31 a.m., that the calls had gone to voicemail, and that Verizon was unable to determine the location of the phone at the time of the missed calls.
His second trial began on May 31, 2012. As at the first trial, the Garcia sisters each identified Hernandez as the rear passenger and shooter. In addition, there was a similar stipulation regarding the cellphone records.
Delatorre did not testify. The shooting had left him with brain damage, and his doctor said testifying created a risk of seizure.
Felicia Palomino testified at the first trial. She did not testify at the second trial, but her testimony was read to the jury. Palomino said she had been one of the people at the Venice house party, which was attended by Sotel 13 members. She lived in the house on McLaughlin with her cousin and uncle, who had ties to Sotel 13, and Cortez, who was the grandson of the uncle’s girlfriend. In addition, Palomino had recently begun dating Ortiz. As a later court filing said, “Despite their gang rivalries, everyone in the residence got along.”
Palomino testified about her household and about her past relationship with a Sotel 13 member. She said that in the hours after Carillo was shot, she received several phone calls from Zapien and her former boyfriend, and she gave the men information about what Cortez and Ortiz were doing and where they were going. She said she did not know the gang was planning to shoot them in front of her house.
Augustin Lopez, the police department’s expert on gangs, testified about the organization of gangs, their hierarchy, and their propensity for violence. He said that Hernandez had admitted being “jumped” into Sotel 13.
Lopez testified that Sotel 13 and Culver City Boys were rivals and that Ortiz’s murder had all the hallmarks of gang-related retaliation. The prosecutor showed Lopez photographs of Hernandez and other Sotel 13 gang members holding guns and throwing gang signs. Lopez testified that Hernandez was a “soldier” in the gang and that Carillo was a “shotcaller” and likely one of Hernandez’s mentors. Lopez said that an attack on a shotcaller would be a “major, major insult” to the gang’s other members.
Lumbreras testified about the investigation. Hernandez’s attorney sought to question Lumbreras about his interview with Delatorre at the hospital, where he showed Delatorre a six-pack photo array that included Hernandez and another Sotel 13 member. Lumbreras had asked Delatorre if he knew any of the people in the array, and when he got to the other person’s photo, Delatorre gave a “thumbs up.”
Judge Michael Pastor barred this line of inquiry, ruling that it was inadmissible hearsay evidence.
Edy Hernandez testified that he was associated with Sotel 13 but was not a gang member. Edy said that Giovanni “claimed” Sotel 13, but he gave two different answers about Giovanni’s membership status, first saying Giovanni wasn’t “jumped” into the gang and later testifying that he didn’t know.
Hernandez’s father, mother, sister, and brother all testified that Giovanni was at home at the time of the shooting. They remembered the day because the father had recently undergone back surgery, and July 30 was the first day he could leave the house. He and his wife went to the supermarket—they had a receipt from 10:59 a.m.—and Giovanni helped unload the groceries.
Catalina Hernandez said her son was home all day on July 30 because he was grounded for staying out so late the night before. She said she smacked him hard when he came home. She testified that she knew her son hung out with gang members, but that he was not a gang member himself. She said she had spoken with Officer Lopez and asked him to help her keep Giovanni on the straight path. She said her son played in soccer tournaments and was enrolled in confirmation classes at their church.
Other family members testified similarly; Hernandez hung out with gang members but wasn’t in the gang.
The state used the photographs of Hernandez to undermine their testimony. The prosecutor showed Sebastian Hernandez Jr. photographs of his little brother throwing gang signs and asked him if “maybe [your] brother was a gang member and [you] didn’t know it.” Sebastian Jr. said, “No, I didn’t think he was a gang member.” The prosecutor then showed Sebastian Jr. photographs of Hernandez holding and shooting a gun, and asked if these changed his opinion. Sebastian said: “It is disappointing. It is something I wasn’t aware he was doing.”
A neighbor of the Hernandez family testified that she remembered seeing the two sons help their father unload groceries on July 30, 2006. Giovanni’s soccer coach testified that Hernandez was an excellent athlete who played soccer on the weekends.
During his closing argument, the prosecutor returned to the cellphone records and said they pointed to Hernandez’s involvement. He said Hernandez might have missed the four calls just after 11:20 a.m. because he was busy shooting the victims and then leaving the scene.
The jury convicted Hernandez on June 22, 2012 of first-degree murder, four counts of attempted murder, and shooting at an occupied vehicle. The jury also found weapons and gang enhancements for each charge. Hernandez was sentenced to 50 years to life in prison.
Hernandez appealed. He argued that his affiliation with Sotel 13 was not really in dispute and that the state used the photographs of him holding a weapon and displaying gang signs to show his bad character.
He also said that Judge Pastor had erred in barring testimony about Delatorre’s statements at the hospital.
Hernandez also said that based on his age at the time of the crime, his prison sentence was cruel and unusual punishment. A year before his conviction, the United States Supreme Court had ruled that mandatory sentencing of life without parole for juvenile offenders violated the Eighth Amendment’s ban on cruel and unusual punishment.
California’s Second District Court of Appeals affirmed the conviction on December 30, 2013. It said that the state had properly used the photographs of Hernandez to rebut testimony that Hernandez was just a “soccer-playing, church-attending kid,” and that Delatorre’s statement to Lumbreras did not meet any of the exceptions that would have allowed the use of hearsay evidence.
Finally, the appellate court said that Hernandez’s sentence was appropriate; Judge Pastor knew the limits of the sentence he could impose while still complying with the Supreme Court’s ruling.
“Hernandez’s sentence will not keep him in prison until he dies, without an opportunity to demonstrate his growth, maturity, and rehabilitation [that] entitle him to release on parole,” the court said. “The trial court considered these factors. His sentence is not cruel and or unusual punishment under either the federal or state constitutions.”
In 2015, Hernandez asked the Conviction Integrity Unit (CIU) of the Los Angeles County District Attorney to review his case. The CIU said in 2017 there was no new credible evidence of innocence.
Four years later, on April 5, 2021, Hernandez submitted a new claim. He was now represented by Marissa Harris and Christopher Hawthorne, with the Juvenile Innocence and Fair Sentencing Clinic at Loyola Law School. The CIU began a new review.
On June 15, 2023, the CIU and Hernandez’s attorneys filed a joint petition for a writ of habeas corpus in Los Angeles County Superior Court. It said that new evidence pointed to Hernandez’ innocence.
As part of the review, the CIU had asked the FBI’s Cellular Analysis Survey Team to re-examine the cellphone evidence. The FBI was able to determine the tower used by Hernandez’s phone at the time of the shooting, when he missed four calls from Edy and then returned his call a few moments later. The tower was just north of his home. His phone did not use any of the four towers closer to the scene of the shooting.
“This new analysis shows the evidence presented to the jury by way of the stipulation was incorrect,” the habeas petition said. “The location of Hernandez’s cell phone was determinable, and the correct cell phone evidence corroborates Hernandez’s claim that he was at home at the time of the incident.”
The CIU’s investigation pointed to another young man as the likely shooter. Because of redactions in the filings, this man’s name isn’t publicly available.
The habeas petition said that Hernandez and this other man were similar in appearance, with dark skin and bushy eyebrows, although the other man was a little taller and a little heavier. That was more consistent with Sophia Garcia’s first description of a young man with a “larger build.” Crucially, the filings said, this person’s photo was never placed in an array viewed by the Garcia sisters.
CIU investigators interviewed Hernandez multiple times. He said that at the time of the shooting, he wanted to be part of Sotel 13 because he thought the members were cool and exciting. He was not yet a full-fledged member.
Hernandez said he was at the Venice house party, where he heard about Carillo getting shot. He left the party and went home.
Hernandez said nobody in the gang asked him what to do or told him about plans. He did not ask questions either. Hernandez said in an interview that if he had been asked to take part in retaliation, he likely would have agreed, because of his desire to be part of the gang.
A judge vacated Hernandez’s conviction and dismissed his charges on June 15, 2023. He was released from prison.
On December 12, 2023, the parties filed a joint motion for a finding of factual innocence, which would allow Hernandez to receive state compensation for his wrongful conviction. A judge granted the motion on December 13, declaring Hernandez to be factually innocent. Hernandez subsequently filed a claim for compensation from the state of California.
At a news conference that day, District Attorney George Gascon apologized to Hernandez for the years he lost in prison for a crime he did not commit.
Harris said: “Like so many young people serving long, adult sentences in California’s prisons, Gio was given no hope for a future outside of prison walls. However, despite this grave injustice, Gio found his way to the light.”
Hernandez thanked his attorneys, Gascon, and the members of the CIU team who reinvestigated his case. He said: “We need change in the system. We need change in our juvenile system, and I just want to be that voice for those who cannot speak, who are still in juvenile hall, L.A. County jail, fighting their case, or in prison and spend decades for a crime they did not commit, and even those who did, I believe in second chances and forgiveness, and definitely that is something that I want to start the next chapter of my life pursuing and advocating for those who cannot speak.”
On January 31, 2024, the California Victim Compensation Board approved paying Hernandez $859,600 in compensation for his wrongful conviction.
– Ken Otterbourg
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