P. v. Hernandez
Filed 2/27/13 P. v. Hernandez CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
OCTAVIO HERNANDEZ,
Defendant and
Appellant.
H037908
(Monterey
County
Super. Ct.
No. SS111731)
Defendant
Octavio Hernandez appeals after pleading no contest to
On appeal,
defendant contends that the trial court abused its discretion by imposing the
upper-term sentence. For the reasons
stated below, we will affirm the judgment.
Background
A. The Robbery
On April 14, 2011, Joshua Magaoay was
working as a delivery driver for Sweet Leaf Caregivers, a
distributor. He was dispatched to
deliver marijuana to defendant. Magaoay
had delivered marijuana to defendant about two weeks earlier.
Magaoay
initially attempted to deliver the marijuana to defendant’s home. After two or three unsuccessful attempts to
meet defendant at his home, defendant called and asked to meet Magaoay at a
Safeway parking lot.
Magaoay
arrived at the Safeway parking lot at about 5 or 6
pm. He was alone in his
car. He was in possession of about
$1,000 in cash and about one and a half pounds of marijuana.
Defendant
walked up and got into Magaoay’s car.
They discussed the various product options and defendant made a
selection. Magaoay began to weigh out
the product. He looked up and saw
defendant pointing a silver handgun at his face. Defendant said, “I am not playing around.â€
Defendant
asked for Magaoay’s car keys, wallet, and cell phone. Magaoay gave him the car keys, cell phone,
and money from the marijuana case, as well as the briefcase containing the
marijuana. Defendant said, “Don’t tell
anybody if you [don’t] want anything to happen to your family.†He then left Magaoay’s car and got into the
passenger side of a waiting car.
Magaoay
knew the difference between handguns and revolvers. He had seen real guns three or four times
before, and the gun defendant had looked real.
He could tell it was a semiautomatic handgun, not a revolver. Because he had never seen a replica gun, he
acknowledged he would not know how to recognize one.
Customers
who are registered with Sweet Leaf Caregivers are required to provide photo
identification, and defendant was subsequently identified by records at Sweet
Leaf Caregivers. Following the incident,
Magaoay quit working for Sweet Leaf Caregivers because he was afraid of getting
shot.
B. Charges, Plea, and
Sentencing
On October 25, 2011, defendant was
charged, by information, with second degree robbery. (§ 211.)
The information alleged that defendant personally used a firearm in the
commission of the robbery. (§ 12022.5, subd. (a).)
On December 14, 2011, defendant pleaded
no contest to the robbery in exchange for dismissal of the firearm use
allegation. At the sentencing hearing on
January 11, 2012, the trial
court imposed the five-year upper term for the robbery. The trial court also imposed a $1,200
restitution fine (§ 1202.4, subd. (b)), but it later reduced the
restitution fine to $1,000.
name="_ftnref2" title="">[2]
Discussion
Defendant
contends the trial court abused its discretion by imposing the five-year upper
term sentence for robbery. Defendant
claims that the trial court erred because the aggravating circumstances it
found “are either elements of the charged crime or are unsupported by
A. Proceedings Below
Following
his plea, defendant told the probation officer that some friends had explained
how to commit the robbery and that his original plan included a friend who had
“ ‘backed out’ at the last minute.â€
Defendant claimed he used a fake gun and that “[i]t was never his
intention to hurt his family or the victim.â€
He expressed remorse “for the stress and inconvenience†he had caused
his parents, and he apologized to the victim “for the inconvenience he caused.â€
The
probation report listed the following circumstances in aggravation under California
Rules of Court, rule 4.421(a)
name="_ftnref3" title="">[3]: (1) “The crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness;†(2) “[t]he defendant was armed
with or used a weapon at the time of the commission of the crime;†(3) “[t]he
victim was particularly vulnerable;†(4) “[t]he defendant induced others
to participate in the commission of the crime or occupied a position of
leadership or dominance of other participants in its commission;â€
(5) “[t]he manner in which the crime was carried out indicates planning,
sophistication, or professionalism;†and (6) “[t]he crime involved an attempted
or actual taking or damage of great monetary value.†The probation report also listed one factor
in aggravation under rule 4.421(b): “The
defendant has engaged in violent conduct that indicates a serious danger to
society.†The probation report listed
one circumstance in mitigation under rule 4.423(b)(1): “The defendant has no prior criminal record.â€
At the
sentencing hearing, the prosecutor advocated for imposition of the upper
term. The prosecutor reminded the court
that defendant had been allowed to plead to the robbery charge without the
personal firearm use allegation, which would have added time to his sentence.
Trial
counsel advocated for imposition of the low term. He reiterated the favorable parts of the
probation report, arguing that it was “never [defendant’s] intention to hurt
the victim†and claiming that “[h]e used a fake gun.†He disputed that any of the factors in
aggravation applied. He claimed that the
crime did not involve great violence or a threat of great bodily harm or the
use of a weapon because defendant “used a fake gun.†He asserted that the victim was not
particularly vulnerable and that while another person was involved, defendant
did not induce others to participate. He
argued that the crime did not involve planning, sophistication, or
professionalism because “it was actually a very dumb and stupid plan,†since
Sweet Leaf Caregivers had defendant’s name and address. Trial counsel also argued that defendant did
not engage in violent conduct. Finally,
he reminded the court that defendant had no criminal record and argued that the
“early resolution†of the case was another mitigating circumstance.
The trial
court gave defendant an opportunity to speak.
Defendant apologized to his family and to the victim. He reiterated his claim that he had no intent
to harm the victim and his claim that “the gun wasn’t real.†The trial court responded, “Well, I don’t
know if the gun was real or not. . . . I
assume the People don’t think they can prove it was real. I don’t think any firearm was ever located,
real or not real.â€
The trial
court then made findings concerning the circumstances in aggravation. It found that the crime involved great
violence or a threat of great bodily harm (rule 4.421(a)(1)), that
defendant was armed during the commission of the crime (rule 4.421(a)(2)),
and that the manner in which the crime was carried out indicated planning,
sophistication, or professionalism (rule 4.421(a)(8)). The trial court also found that defendant
“has engaged in violent conduct indicating he is a serious danger to society.†(See rule 4.421(b)(1).)
The trial court
found defendant’s early acceptance of responsibility was a mitigating
circumstance (rule 4.423(b)(3)), and it found that defendant did not have “any
criminal history†(rule 4.423(b)(1)).
The trial court specified that these circumstances did not outweigh the
aggravating circumstances: “[J]ust based
on the crime alone, the Court feels five years is an appropriate sentence.â€
B. Analysis
“When a
judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court.†(§ 1170, subd.
(b).) “In exercising his or her discretion in selecting one of the three
authorized prison terms referred to in section 1170(b), the sentencing judge
may consider circumstances in aggravation or mitigation, and any other factor
reasonably related to the sentencing decision.â€
(Rule 4.420(b).)
“
‘Sentencing courts have wide discretion in weighing aggravating and mitigating
factors [citations], and may balance them against each other in “qualitative as
well as quantitative terms.†’ â€
(People v. Avalos (1996) 47
Cal.App.4th 1569, 1582.) An appellate
court should not reweigh the circumstances in aggravation and mitigation, but
must consider only whether “the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest
Jordan (1986) 42 Cal.3d 308, 316.)
Even a single circumstance in aggravation may justify the selection of
an upper term. (People v. Osband
(1996) 13 Cal.4th 622, 730; People v. Kelley (1997) 52 Cal.App.4th 568,
581; see People v. Nevill (1985) 167
Cal.App.3d 198, 202 [a single aggravating factor can justify upper term if it
“outweighs the cumulative effect of all mitigating factorsâ€].)
1. Violence and Threat of
Great Bodily Harm
Defendant
first contends that the trial court erred by finding that the crime involved
great violence or a threat of great bodily harm. (Rule 4.421(a)(1).) Defendant argues that the use or threatened
use of force is an element of robbery and that he did not use any actual
violence in committing the robbery.
“A fact
that is an element of the crime upon which punishment is being imposed may not
be used to impose a greater term.†(Rule
4.420(d).) An aggravating circumstance is a fact that makes the offense
“ ‘distinctively worse than the ordinary.’ †(People
v. Black (2007) 41 Cal.4th 799, 817.)
Although robbery necessarily
requires the use of force or fear,
prior cases have held that a defendant’s “threatening conduct†during a robbery
may support a finding that the crime involved great violence or a threat
of great bodily harm within the meaning of rule 4.421(a)(1). (See
People v. Garcia (1995) 32 Cal.App.4th
1756, 1775-1776 (Garcia), and cases
cited.) “ ‘[T]he elements of force and
fear do not need to be extreme for purposes of constituting robbery. [Citations.]
[¶] This means that the threat of
bodily harm can frequently exceed the minimum requirement necessary for
purposes of establishing robbery.’
[Citation.]†(
Arguments similar to defendant’s
were rejected in People v. Cortez
(1980) 103 Cal.App.3d 491, where Cortez was sentenced to the five-year upper
term for robbery. During the robbery, he
had “poked a screwdriver†into the victim’s ribs and told the victim that he
had a friend outside with a shotgun. (
sentence, contending that the trial court erred by relying on the
“ ‘threatening manner’ in which the screwdriver was used and the
‘threatening language’ of a friend outside with a shotgun.†(Id.
at p. 496.) Like defendant, Cortez
argued that the threats “necessarily related to the element of fear†required
for robbery. (Ibid.) The court disagreed,
explaining, “While robbery is the taking of property in the possession of
another, from his person or immediate presence and against his will,
accomplished by means of force or fear, the particular means of force or the manner
in which fear is imparted is not an element of robbery. The means of accomplishing the crime are
facts relating to the crime within the meaning of [former] rule 421(a).†(Ibid.;
see also People v. Reid (1982) 133
Cal.App.3d 354, 369 (Reid) [trial court
did not err by finding that robbery was aggravated because it involved a threat
of great bodily harm, despite defendant’s use of a toy gun].)
In the present case, defendant pointed
a handgun at the victim’s face, told him that he was “not playing around,†and
threatened the victim’s family. Even if
defendant’s assertion about using a replica gun was true, the victim believed
he was being threatened with a real gun.
The trial court did not abuse its discretion by finding that defendant’s
threatening conduct “ ‘exceed[ed] the
minimum requirement necessary for purposes of establishing robbery’ †(
1776) and thus that it constituted a circumstance in aggravation under rule
4.421(a)(1).
2. Use of a Weapon
Defendant
contends the trial court erred by finding, as a circumstance in aggravation,
that defendant was armed during the commission of the crime. (Rule 4.421(a)(2).) He contends there was insufficient evidence
that he used a real gun “as opposed to a firearm replica.â€
At the
preliminary hearing, the victim testified that he believed that defendant
pointed a real gun at him, and the magistrate held defendant to answer on the
firearm use allegation, indicating it found probable cause to believe that the
gun was real. Although the trial court
later noted that it did not “know if
the gun was real or not,†it impliedly found that the gun was real. (Italics
added.) Based on the victim’s testimony
– including the fact that he had seen real guns before – the trial court could
reasonably find that the gun was not merely a replica.
However,
even if defendant used a replica gun rather than an operable firearm, the trial
court did not abuse its discretion by finding that defendant was armed with or
used a weapon within the meaning of rule 4.421(a)(2). We agree with the Attorney General that the
use of a replica or inoperable weapon is a circumstance in aggravation within
the meaning of rule 4.421(a)(2) when the victim believes the weapon is
real. In such a case, whether operable
or not, the weapon is being used “[t]o induce fearful compliance.†(People
v. Lewis (1991) 229 Cal.App.3d 259, 265.)
Our
conclusion is consistent with cases holding that a weapon need not be operable
for purposes of section 12022.5’s firearm use enhancement or for
section 12022’s enhancement for being armed with a deadly weapon. (See, e.g., People v. Jackson (1979) 92 Cal.App.3d 899, 903 (
because as long as the victim believes that the weapon is operable, there is a
possibility that the defendant’s use or display of the weapon “may stimulate
resistance†and thereby create an additional “potential for harm.†(Nelums,
supra, at p. 360.)
As with an
inoperable weapon, the use of a replica firearm aggravates the circumstances of
the crime. Even though the weapon cannot
be used, “[t]he danger remains that the reaction by the victim or some third
person to the appearance of the gun will cause harm to befall someone.†(Jackson,
supra, 92 Cal.App.3d at p. 903, fn. omitted.)
In sum,
whether the gun was real or an inoperable replica, the trial court did not
abuse its discretion by finding that defendant was armed with or used a weapon
so as to aggravate his crime under rule 4.421(a)(2).
3. Evidence of Planning
Defendant
also challenges the trial court’s finding that the manner in which
the crime was carried out indicated planning, sophistication, or
professionalism.
(Rule 4.421(a)(8).) At the
sentencing hearing, the trial court explained its finding on this circumstance
in aggravation: “[H]e arranged to meet
the victim, called him, armed himself with some kind of a firearm, and knew the
victim would be carrying both money as well as drugs.â€
Defendant
acknowledges “there is some evidence of planning†in the record, but he
contends “there is not the slightest hint of sophistication or
professionalism.†However, the trial
court was not required to find that the crime involved sophistication or
professionalism in addition to
planning. The rule is stated in the
disjunctive: it is a circumstance in
aggravation if “[t]he manner in which the crime was carried out indicates
planning, sophistication, or
professionalism.†(Rule 4.421(a)(8),
emphasis added.)
Defendant
also argues, as he did below, that the crime was poorly planned, since his name and address were on file with Sweet
Leaf Caregivers, leading him to be easily identified and apprehended. However, a trial court may rely on planning
as an aggravating circumstance even when the defendant’s plan was not
particularly clever. For instance, the
court in People v. Forster (1994) 29
Cal.App.4th 1746 upheld an upper term sentence for the defendant’s conviction
of driving while intoxicated because there was evidence he had planned the
offense. The defendant had gone to
Mexico specifically to drink alcohol, and he was arrested when he tried to
cross back into the United States through an inspection station at the border,
still intoxicated. (Id. at p. 1759; see also People
v. Lai (2006) 138 Cal.App.4th 1227, 1259 [finding of planning upheld
despite the fact that the defendant was uneducated, illiterate, and “not a
particularly sophisticated
personâ€].)
Here,
defendant planned the robbery in advance, making arrangements to meet the
victim in the Safeway parking lot, arming himself with either a real or
real-looking firearm, and arranging for a getaway driver. Even though defendant’s plan may not have
been very well thought-out with respect to concealing his identity, the trial
court did not abuse its discretion by finding that the crime involved planning
within the meaning of rule 4.421(a)(8).
4. Violent Conduct
Defendant
also contends that the trial court erred by finding that he engaged in violent
conduct indicating he is a serious danger to society. (Rule 4.421(b)(1).) He argues that violence is inherent in a
robbery and that he had no criminal history, “let alone any history involving
violent conduct.â€
Even
assuming that the trial court erred by finding this circumstance in
aggravation, we would find no reversible error in light of our previous
analysis of the other circumstances in aggravation. “ ‘When a trial court has given both proper
and improper reasons for a sentence choice, a reviewing court will set aside
the sentence only if it is reasonably probable that the trial court would have
chosen a lesser sentence had it known that some of its reasons were
improper.’ [Citation.]†(People
v. Cruz (1995) 38 Cal.App.4th 427, 433-434, quoting People v. Price
(1991) 1 Cal.4th 324, 492.) And
generally, “a demand for resentencing is not appropriate when there is
misplaced reliance on a single aggravating factor.†(Reid,
supra, 133 Cal.App.3d at p. 372.)
As
explained above, the trial court did not abuse its discretion by finding the
other three cited circumstances in aggravation, all of which had evidentiary
support in the record. The trial court
also specified that it felt the upper term sentence was appropriate “just based
on the crime alone.†Thus, it is not
reasonably probable that the trial court would have imposed a midterm or lower
term sentence even if it erred by finding that defendant engaged in violent
conduct indicating he is a serious danger to society.
Disposition
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
The trial court calculated the original $1,200 restitution fine under the
formula of section 1202.4, subdivision (b)(2), using the $240 minimum fine in
effect at the time of sentencing.
However, at the time of defendant’s offense, the minimum restitution
fine was $200. (Stats. 2010, ch. 351, §
9, (A.B. 819).) In the opening brief,
defendant claimed that imposition of the $1,200 restitution fine violated the
constitutional prohibition against ex post facto laws. On August 3, 2012, the trial court reduced
the fine to $1,000. In his reply brief,
defendant withdrew his argument as moot.
