After an appeals court tossed out two felony convictions in his case, a man convicted of burning a cross next to an African-American teen’s Arroyo Grande home will serve an eight-year sentence, a judge ruled Wednesday, knocking three years off the term.
As a result, 36-year-old Jeremiah Hernandez of San Simeon could be out of prison in a little more than a year.
Hernandez was one of four people convicted in the case, which garnered national attention. While the other defendants entered no-contest pleas, Hernandez went to trial.
In June 2012, a jury found him guilty of arson, terrorism in the form of a cross burning, terrorism in the form of arson targeting a person’s race, and conspiracy to commit a crime. The jury also found him guilty of the enhanced penalty of committing hate crimes.
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But the 2nd District Court of Appeal ruled in August that Hernandez could not be convicted of general arson and terrorism charges along with the more specific but related cross-burning charge, and it ordered the arson and terrorism charges dismissed.
After rendering that decision, the appeals court left it to the trial court to resentence Hernandez.
During the resentencing Tuesday, Deputy District Attorney Dave Pomeroy argued for an eight-year term, to be served entirely in state prison. Hernandez’s attorney, Ray Allen, argued for a six-year jail term.
Pomeroy said the defendant deserved more time because he acted in concert with other defendants. Allen has maintained that the cross burning wasn’t racially motivated.
According to court testimony, one of the defendants, Jason Kahn, wanted to burn the cross in front of a South Elm Street home in Arroyo Grande in memory of his father. In 1994, Kahn was in the back of a police car that was called to respond to a shooting at the South Elm Street home. Kahn’s father, Rick Kahn, had been shot and killed by sheriff’s deputies during a confrontation there.
On March 18, 2011, Jason Kahn and the other defendants — Hernandez, William Soto and Sarah Matheny — stole an 11-foot cross from a local church, then placed it in the ground in front of the home and set it ablaze. The occupants of the house were not present at the time because of ongoing work at the home. But the neighbors were, including an African-American teenager, whose bedroom was just 23 feet from the burning cross.
The defendants claimed they didn’t know the African-American girl lived there and that the crime wasn’t racially motivated, even though Kahn had tattoos of swastikas, a skinhead and the words “white power” on his body.
Pomeroy said the crime frightened the entire community. And he doesn’t think Hernandez is rehabilitated.
“Crime will go up in this county as soon as this defendant is released from custody,” he said in court, noting that Hernandez has an “extensive” criminal past.
Hernandez tried to start a criminal outfit called the Outlaws while in jail, Pomeroy added. “He’s dedicated his life to crime.”
Allen, who argued that the convictions did not warrant prison time, said the Outlaws was just a group of friends who created their own rules of conduct.
“I think Mr. Pomeroy was not being fair to Mr. Hernandez,” he said after the hearing. “I think the whole Outlaws thing is another way to create a boogeyman, which in my mind was what this case was.”
The burned cross, he said, was a memorial to Kahn’s father.
“It had nothing to do with that young African-American girl who happened to be next door,” he said.
San Luis Obispo Superior Court Judge Jacquelyn Duffy sentenced Hernandez to the eight-year term. But because he had been credited for 2,117 days served, he could be out in 401 days with credit for good behavior.
Allen said his client will likely appeal the sentencing again.