A San Simeon man convicted of a hate crime for a nationally publicized 2011 cross-burning in Arroyo Grande and sentenced to state prison will likely have his sentence reduced after an appellate court found he was wrongly convicted of two charges.
Jeremiah Leo Hernandez, 36, who is serving an 11-year sentence, will be back in San Luis Obispo Superior Court for re-sentencing next month. A Second District appellate court ruled in August that two arson and terrorism convictions are not valid when combined with the similar, more serious conviction of burning a cross. The appeals court ruled that a Superior Court judge must reverse and dismiss counts of arson and terrorism by arson and adjust Hernandez’s sentence.
With time served and good behavior credits, he could be out of prison in about a year.
Dave Pomeroy, the original prosecutor in the case, did not return a request for comment Thursday on how the District Attorney’s Office plans to respond to the ruling.
Chief Deputy District Attorney Jerret Gran declined to comment until the sentencing hearing.
In July 2011, Hernandez was arrested with three others and charged for his role in burning a wooden cross in a yard next to a home where a black teenager lived. The teen girl was home at the time and witnessed the crime.
Though none of the four was arrested at the scene, investigators identified the group months later with help from confidential informants.
Hernandez; Jason Wayne Kahn, 40, of Orcutt; William Michael Soto, 24, of Arroyo Grande; and Sara Kay Matheny, 24, of San Simeon were arrested and tried on charges of arson, terrorism by arson, and terrorism by burning a religious symbol and conspiracy.
In plea bargain deals, Soto and Matheny pleaded no contest to two counts of arson and terrorism and were sentenced to five years in state prison; Kahn pleaded no contest to arson and two counts of terrorism and received a 12-year sentence.
But Hernandez took his case to trial, maintaining that the group did not know a black person lived at the home and that the cross-burning was a memorial to Kahn’s father, who was killed by sheriff’s deputies on the property in 1994 during a murder investigation.
A jury convicted him of all counts in June 2012, and he has since served his time at Calipatria State Prison in Imperial County.
Ray Allen, Hernandez’s San Luis Obispo attorney, said Thursday that his client “has always maintained he was not even there.”
“Mr. Hernandez has always said how he felt incredibly bad for the young lady involved first and foremost,” Allen said. “He’s a person of color; he feels the pains and problems you would expect living as a minority himself.”
As part of its ruling, the appellate court struck down a majority of Hernandez’s arguments, including allegations that there was no evidence of a hate crime and that certain evidence should not have been admissible at trial.
The court did, however, agree that prosecutors sought a conviction for a special crime of cross-burning while also seeking general convictions of arson and terrorism. The court ruled that Hernandez could not be convicted of all three together and struck down the lesser two counts in favor of the special cross-burning conviction.
Ironically, the cross-burning charge carries a lesser sentence than the other two charges combined, Allen said.
Allen added that he is still calculating Hernandez’s sentencing guidelines and time served, but he estimated the ruling could shave about five years off Hernandez’s original sentence. With time served and good behavior, that means Hernandez could be released as early as 2015.
Allen said his client is looking forward to that release.
He reiterated his opposition to Hernandez’s original conviction, but Allen said he doesn’t believe prosecutors were overzealous in the case.
“I wouldn’t say they were overzealous, per se. I think they were operating in good faith at the time,” Allen said. “They took a position of advocacy, and they were wrong.”
It remains uncertain whether Hernandez’s appellate ruling will have an effect on his three former co-defendants, who are each serving out their sentences in different state facilities.
Trace Milan, who represented Kahn, said Thursday that his former client’s situation is different because he pleaded no contest and never faced a jury.
“This is unique. These situations where (a co-defendant) took his case to trial and lost, then later won on appeal are really rare,” Milan said.
Milan said he is researching the possibility of petitioning the court to release his client, in light of the appellate court ruling.
Hernandez is scheduled to appear in San Luis Obispo Superior Court on Nov. 5.