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THE PEOPLE v. HERNAN HERNANDEZ

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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