SAN LUIS OBISPO (CN) - A Californian sentenced to 11 years in prison for burning a cross next door to a mixed-race family could be free in 13 months, as an appeals court tossed two of his convictions.
Jeremiah Hernandez, 36, of San Simeon, was resentenced Wednesday in San Luis Obispo Superior Court to 8 years in prison. With credit for good behavior, he could be released in just over 400 days.
Hernandez was one of four people convicted of what the prosecutors called a hate crime. The cross they burned was just a few feet from the bedroom of an African-American teenager, who saw the flames through window.
The alleged ringleader, Jason Kahn, claimed that they burned the cross as a memorial to his father, who was shot and killed there by sheriff's deputies in 1994.
Three of the four defendants - Kahn, 40, William Soto, 24, and Sara Matheny, 24 - pleaded no contest. Kahn received 12 years in prison; Soto and Matheny each got 5 years. Hernandez took his case to trial.
He was convicted of multiple felonies, including two arson and terrorism counts and conspiracy to commit malicious cross burning. Hernandez appealed, saying he had been over-punished.
The Second Appellate District Court, in an unpublished opinion, agreed, saying Hernandez could not be sentenced for both general arson and terrorism by arson charges and a more specific, though related, cross burning.
Citing the so-called Williamson rule from 1954, the court wrote, "if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute."
The court dismissed the general counts and ordered the trial court to resentence Hernandez.
In San Luis Obispo Superior Court, deputy district attorney Dave Pomeroy argued for the stiffest possible penalty, noting that Hernandez acted in concert with others - requiring a more severe sentence. He also said Hernandez had not been rehabilitated.
"I have every confidence that he will commit new felonies as soon as he's released from custody," Pomeroy told the court, citing three prison priors. "He's dedicated his life to crime."
Hernandez's attorney Ray Allen insisted that the cross burning was a memorial - and that the defendants didn't know an African-American lived next door.
Allen requested a 6-year term, to be served in local jail, but Superior Court Judge Jacquelyn Duffy handed down the 8-year term.
While shocking for its hateful implications on the scenic Central Coast, the crime recalled a bizarre incident from more than a decade before.
Kahn was under arrest, in the back of a squad car, in August of 1994 when it was called to Elm Street in Arroyo Grande, where a man had been shot during a confrontation with sheriff's deputies. The man Kahn saw lying on the ground, surrounded by deputies, was his father, Rick Kahn.
When deputies arrived at Rick Kahn's home to question him about a murder, he charged them with a hunting knife, prompting the shooting.
Jason Kahn was eventually convicted of being an accessory to the murder in question.
On March 17, 2011, a day before what would have been Rick Kahn's birthday, Jason Kahn and the others stole a cross from a church and took it to the home where the shooting had occurred.
Because of work being done on the house, the residents were not home when the group torched the heavy cross on the front lawn. But 24 feet away, in the house next door, an African-American teen was in her bedroom, watching television with a friend.
The scared teen awoke her mother, who called police.
After the Hernandez trial, jurors said they believed the cross burning was both a memorial and a hate crime.
In addition to his Williamson pleading, Hernandez claimed on appeal that there was insufficient evidence to support the hate crime findings and that the state's cross burning statute violated the First Amendment.
The appeals court rejected those arguments.
During the trial, it was revealed that Kahn had several racist tattoos, including swastikas, a skinhead on a cross and one that stated "white power." Evidence was presented at trial to show that Kahn had seen the girl dancing at her home.
The girl's family moved away after the cross burning.
The court also rejected the First Amendment argument, saying the speech in this case constituted "true threats," which the U.S. Supreme Court has determined is not protected speech.
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