Oxnard Youth Receives CYA Sentence in Killing

An Oxnard youth convicted of second-degree murder was sentenced to a California Youth Authority facility Friday after the judge rejected a prosecutor’s argument that the 17-year-old fits the pattern of a psychopathic killer.

The defendant, Victor Manuel Hernandez, could be incarcerated until he is 25 years old, or he could be released sooner.

According to court records, Hernandez and two friends drove to an Oxnard convenience store in the early hours of July 13, 1991. They asked Moises Silva, 26, of Long Beach, who was parked outside the store, to buy them beer.

Silva reluctantly agreed, but the store clerk refused to sell beer because it was after hours, according to court records. As Silva returned the money to Hernandez, an argument was in progress between the defendant and two relatives of Silva who were in Silva’s car.

As Hernandez left the parking lot, he fired three shots at Silva’s car, one of which struck Silva behind the ear and killed him, according to court records. Hernandez was convicted of second-degree murder at a non-jury trial last November.

On Friday, Deputy Dist. Atty. James D. Ellison asked for the maximum sentence of 15 years to life in prison, plus a five-year sentence enhancement for using a handgun.

Probation authorities, in a report to the court, recommended that Hernandez be sentenced to state prison, but allowed to serve the first eight years of his sentence at a Youth Authority facility. If Judge Charles R. McGrath had followed that recommendation, Hernandez would have had to serve at least 10 years before being eligible for parole.

“I frankly don’t believe he has any remorse at all,” Ellison told the court, citing trial evidence and interviews with the defendant’s friends who witnessed the shooting.

“He enjoyed this,” Ellison said. “At this point he represents an extreme danger to society because he has no regard for human life.”

Ellison recounted an interview with one of Hernandez’s companions, who said he asked Hernandez why he fired the gun. Ellison said the friend declared that Hernandez had laughed and replied: “Did you see those guys duck? Pow. Pow.”

But Katherine Emerick, a clinical psychologist, presented the judge with an entirely different picture of the defendant.

Emerick told the sentencing hearing that after three hours of testing last November, Hernandez showed signs of remorse. Moreover, she said, she did not see evidence that he had aggressive tendencies.

Both Emerick and Deputy Public Defender Susan R. Olson told the court that Hernandez was the product of a broken family and had lived in a foster home since the age of 15. They said he had an intelligence quotient barely above the level of a mentally incompetent person, and had become an alcoholic though still a teen-ager.

Emerick, who said she has experience evaluating drive-by shooting suspects, said Hernandez described dreams that indicated to her he was going through a period of remorse.

“He had nightmares and told me of a vision he had of the man he killed standing in the doorway of the Juvenile Hall” where he has been held, she testified.

According to Hernandez’s account of the dream, she said, the victim told him, “How could you do such a thing? How could you gun down an innocent man?”

Emerick said she concluded that Hernandez “was feeling things that psychopaths don’t normally feel.”

McGrath said one can “never know for sure” about whether a convicted person was being manipulative, but he declared he was persuaded by Emerick’s analysis.

“You can’t fake a Rorschach test,” McGrath said, referring to inkblot tests administered to Hernandez by Emerick. The tests are designed to probe a person’s personality.

“There’s a good chance of rehabilitation here,” the judge said. “I think he’s got a future.”

Afterward, a disappointed Ellison said, “I felt he deserved to serve the entire sentence.”

Throughout Friday’s hearing, Hernandez, who has his last name tattooed on the back of his neck, sat quietly beside Olson.

Two relatives of the victim urged the judge to impose the maximum penalty.

In asking McGrath to reject a longer prison sentence for Hernandez, Olson said he had never been in jail before. “We should take the chance he will be rehabilitated and that we won’t see him again in the criminal system,” she said.