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THE PEOPLE v. HERNAN HERNANDEZ

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HERNAN HERNANDEZ, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge. (Super.Ct.No. INF063117)

The opinion of the court was delivered by: Ramirez P. J.

P. v. Hernandez

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Affirmed in part; reversed in part and remanded with directions.

A jury convicted defendant and appellant Hernan Hernandez of attempted murder (Pen. Code, §§ 187, 664, count 1), assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 2), possessing cocaine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, count 3), and transporting cocaine (Health & Saf. Code, § 11352, subd. (a), count 4). The jury found, as to the attempted murder, that the attempt was willful, deliberate, and premeditated (Pen. Code, § 664, subd. (a)), defendant personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)), defendant personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), defendant personally and intentionally discharged a firearm and caused great bodily injury (Pen. Code, § 12022.53, subd. (d)), and defendant personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)). The jury found, as to the assault, that defendant personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)), and defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)).

At sentencing, the trial court stayed imposition of terms for the Penal Code sections 12022, subdivision (b)(1), and 12022.53, subdivision (c)*fn1 enhancements to the attempted murder count pursuant to section 1170.1, and otherwise imposed sentences for all counts and enhancements. Defendant contends there was insufficient evidence to support the deliberation and premeditation finding; the People contend the evidence was sufficient. The parties agree that the sentences for counts 2 and 3 should have been stayed pursuant to section 654, and the section 12022.7 enhancement to count 1 should have been stayed pursuant to section 12022.53, subdivision (f). We affirm the convictions, reverse the sentence, and remand with directions to resentence defendant with the relevant stays imposed.

I. BACKGROUND

Around 1:00 a.m. on September 20, 2008, the victim and his friend stopped for food while driving back to the victim's home after visiting friends late into the night. After getting his food, the victim encountered three men, including defendant, in the parking lot. A clash ended with defendant shooting the victim; the bullet entered the back of the victim's neck and came out near the victim's chin. Defendant drove away with his friends in his car, but was stopped a few blocks away; his car contained cocaine and the loaded and operable firearm used in the shooting.

The victim testified that as he got into the passenger seat of his truck, the three men would not let him close his door. The victim tried to get out. The victim's friend, who had been waiting in the truck while the victim got the food, got out of the truck. One of the men hit the friend. The victim heard someone say, "Don't go shooting him. Don't shoot him." The victim was able to get one foot out of the door, but was unable to get out of the truck or to shut the door. While the victim was struggling with the men at his door, he saw defendant go behind an adjacent green car. Defendant next appeared at the side of the victim's door and pointed a gun at the victim. Defendant was only two or three feet away from the victim, and defendant was pointing the gun at the victim's face. One of the men said, "You're not going to shoot him. Don't shoot him." Defendant then shot the victim.

The victim's friend testified that he saw three men, including defendant, come behind the victim as the victim was returning to the truck. The friend got out, grabbed the victim, and put the victim in the truck, "because they were already coming along insulting him." The men prevented the friend from closing the truck door, and one of them knocked the friend down with a blow to his right cheek. The friend got up, got back in the truck and tried to leave; he could not find the keys. Two of the men struggled with the victim; the friend looked up from searching for the keys and saw defendant fire the gun at the victim.

Four witnesses were seated in the restaurant, in front of the window right next to the front door. Three of them testified, but none of them saw the shooting. One witness testified she saw "somebody's hand reach in [the truck] then we heard the shot." Another testified that, while the victim was being punched and hit with the door, "the little short guy reached in the other car." She did not see what he retrieved, but "the car was right next to the truck [the victim was in]. So he just turned around and he reached in. And then he turned back around and he threw a punch and we heard the shot."

Defendant testified that as he was leaving the restaurant the victim passed by and said, "Fuck you." "I know you. I'm going to kill you." The victim then called defendant's friends "assholes" and repeatedly said, "Fuck you." The victim and defendant's friends then exchanged blows. The victim got into his truck and everything calmed down. The victim called out obscenities from within the truck, and then started to get out of the vehicle. Defendant's friends and the victim then exchanged more blows. The fighting stopped, and the victim looked at defendant and said, "I'm going to kill you" as he started reaching under his seat. Defendant testified that he thought the victim "is really going to kill me." Defendant then went to his car and retrieved his gun from the backseat. Defendant admitted shooting the victim, and admitted that the cocaine later found in his car was his own.

During his interview with a police detective, defendant said the victim was going to throw blows at him but his homeboys jumped ahead of him and exchanged blows with the victim. Defendant then went and pulled out the gun from his car. Defendant cocked the gun while he turned back from his car to the struggle. His friends heard him cock the gun, and saw him stick the gun inside the vehicle; the friends scattered and defendant fired.

After defendant rested, he moved for acquittal (§ 1118.1) on count 1 and the count 1 premeditation and deliberation enhancement. The trial court denied the motion and stated: "The standard on 1118.1 motion is with the evidence as it exists at this point if believed by the jury, would sustain a conviction on appeal. That's the standard. And I believe at this point that the evidence would sustain a conviction on appeal if believed by the jury. [¶] You've got the fact that . . . when the defendant himself was not directly engaged in the struggle, it was two on one, the victim was contained within the vehicle although he was trying to get out, that while that struggle was going on he reached--I agree the car was right next to the four-wheel drive vehicle--reached in and got his gun. Before he fired, we had evidence that someone said, 'Don't shoot him.' And there[]after he pulled the trigger. [¶] I believe that the very action of disengaging from the struggle, retrieving the gun and showing and pointing it at the face of the victim[,] who but for moving away would have been shot in the face. I believe that his conduct establishes the intent to kill and establishes the premeditation especially in light of the fact someone said, 'Don't shoot him,' as was testified. [¶] Yes, I agree, the whole thing happened very quickly. But as the cases have indicated, premeditation doesn't require a lot of reflection. It just requires a degree of reflection. And I believe that the evidence if believed by the jury would sustain a conviction on appeal."

At sentencing, the trial court set the count 2 assault as the principal count. It imposed the upper term of four years for the conviction, with an additional upper term of 10 years for the personal use of a firearm enhancement (§ 12022.5, subd. (a)) and an additional three years for the personal infliction of great bodily injury enhancement (§ 12022.7, subd. (a)). For the two cocaine related counts, possession while armed (count 3) and transportation (count 4), the trial court imposed consecutive one-third midterms of one year and one year eight months. For the count 1 attempted murder, the trial court imposed an "indeterminate term of seven years to life, which is life with the possibility of parole." For the intentional discharge of a firearm enhancement (§ 12022.53, subd. (c)), the trial court imposed, and stayed pursuant to section 1170.1, a term of 20 years. For the intentional discharge of a firearm causing great bodily injury enhancement (§ 12022.53, subd. (d)), the trial court imposed a term of 25 years to life. The trial court imposed a term of three years for the personal infliction of great bodily injury enhancement (§ 12022.7, subd. (a)), and stayed, pursuant to section 1170.1, the personal use of a deadly weapon enhancement (§ 12022, subd. (b)(1)). "So you have a determinate term of 22 years and four months after which you will serve an indeterminate term of 32 years to life."

II. DELIBERATION AND PREMEDIATION

Defendant contends there was insufficient evidence to support the deliberation and premeditation finding; the People contend the evidence was sufficient. We agree with the People.

" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.] 'In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.) The scope of the evidence includes both the evidence in the record as well as "reasonable inferences to be drawn therefrom." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicting evidence and credibility issues is for the jury to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . ." (Young, at p. 1181.)

" ' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.] ' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " [Citation.]' [Citations.]" (People v. Solomon (2010) 49 Cal.4th 792, 812.)

In the light most favorable to the judgment, the evidence shows that the assault by defendant's friends on the victim provided defendant the opportunity to disengage from the struggle and obtain his gun. Defendant then cocked the gun, reached into the vehicle, and pointed the gun at the victim's face before shooting the victim. Pointing the weapon at the victim's face and firing at close range " 'shows a calculated design to ensure death rather than an unconsidered explosion of violence.' [Citation.]" (People v. Brady (2010) 50 Cal.4th 547, 565.) Furthermore, while the events may have transpired quickly, defendant was slow enough that his friends had time to notice the cocking and aiming of the gun, get out of the way and say, "You're not going to shoot him. Don't shoot him." Just as defendant's friends had time to consider and reject defendant's obvious intent to shoot the victim, defendant had time to reject their counsel and pull the trigger. Accordingly, the jury could reasonably infer that defendant made a considered decision to kill the victim.

III. SECTION 654

At the sentencing hearing, section 654 was not discussed and no section 654 stays were imposed. The parties agree that the sentences for the count 2 assault with a deadly weapon and the count 3 possession of cocaine while armed with a loaded and operable firearm*fn2 should have been stayed pursuant to section 654. We agree.

A. Standard of Review

"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) When section 654 applies, it is the shorter term of imprisonment that is stayed. (§ 654, subd. (a).) In determining whether the facts call for the application of section 654, the threshold inquiry is to determine the defendant's objective and intent. (People v. Coleman (1989) 48 Cal.3d 112, 162.) When a court sentences a defendant to separate terms, it makes an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

B. Count 1 Attempted Murder and Count 2 Assault with a Firearm

The assault conviction included an enhancement for defendant's personal infliction of great bodily injury on the victim. (§ 12022.7, subd. (a).) The great bodily injury occurred from the shooting that also underlies the attempted murder conviction. Accordingly, as defendant was charged and convicted, the assault was consummated with the same act that underlies the attempted murder. Thus, section 654 precludes the imposition of punishment for both counts 1 and 2. As count 1 provides for a longer term of imprisonment, it is count 2 that should have been stayed.

C. Count 3 Possessing Cocaine While Armed and Count 4 Transporting Cocaine

Defendant was convicted and sentenced for transporting and possessing (while armed) the same cocaine. As count 3 provides for the lesser punishment, the parties agree the sentence imposed for the count 3 conviction should be stayed. As there is no indication of separate intents or objectives, the sentence for count 3 should have been stayed. (See People v. Thomas (1991) 231 Cal.App.3d 299, 306-307 [section 654 barred multiple punishment for possession and transportation of same cocaine base].)

IV. SECTION 12022.7 EHANCEMENT

The parties agree that the personal infliction of great bodily injury enhancement (§ 12022.7) to count 1 should have been stayed pursuant to section 12022.53, subdivision (f).*fn3 They are correct. "An enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)" of section 12022.53. (§ 12022.53, subd. (f).) Accordingly, the sentence for the enhancement should have been imposed and then stayed. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [discussing application of § 12022.53, subd. (f), to overlapping firearm, rather than injury, enhancements].)

V. SENTENCING RECORDS

Although not raised by the parties, we note that the trial court stated that the sentence for the count 1 attempted willful and deliberate murder was an "indeterminate term of seven years to life, which is life with the possibility of parole" and summarized the indeterminate term as "32 years to life." The sentencing minutes and abstract also describe the sentence similarly. Defendant must serve seven years of his indeterminate sentence before he is eligible for parole (§ 3046), and he must serve any consecutive determinate term prior to serving any portion of the indeterminate life sentence (§ 669). However, the punishment for defendant's count 1 attempted murder is "imprisonment in the state prison for life with the possibility of parole" (§ 664, subd. (a)), and the trial court could not "fix the term or duration" of the indeterminate sentence (§ 1168, subd. (b)). Accordingly, on resentencing, the indeterminate term for count 1 should be described as "life with the possibility of parole." (See § 664, subd. (a).) Given that we are directing the staying of the section 12022.7 enhancement to count 1, the total indeterminate sentence for count 1 should be described as life with the possibility of parole plus an additional consecutive sentence of 25 years to life. (See § 12022.53, subd. (d).) Similarly, on the indeterminate abstract of judgment, box 5 should be marked to indicate a life with the possibility of parole base sentence, rather than box 6c indicating seven years to life in the present abstract of judgment.

VI. DISPOSITION

The convictions are affirmed. The imposed sentence is reversed. The superior court is directed to resentence defendant in accordance with this opinion. In particular, the sentences for counts 2 and 3 are to be imposed and stayed pursuant to section 654, the personal infliction of great bodily injury enhancement (§ 12022.7) in count 1 is to be imposed and stayed pursuant to section 12022.53, subdivision (f), and the indeterminate sentence in count 1 should be life with the possibility of parole plus an additional consecutive sentence of 25 years to life. Following resentencing, the superior court clerk is directed to prepare the new sentencing minute order and new abstracts of judgment, and then forward certified copies of the minute order and abstracts of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: HOLLENHORST J. McKINSTER J.


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