Opinion
E071053
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN HERNANDEZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on April 7, 2020, be modified as follows:
1. On page 15, footnote 8, replace the footnote text with the following sentence:There is no change in the judgment. The petition for rehearing is denied.
"Although in his opening and reply briefs Hernandez cites Moye, supra, 47 Cal.4th 537, in describing the background applicable law on this issue, he nowhere attempts to address Moye's holding or reasoning there. He does, however, attempt to distinguish Moye in a letter brief permitted in lieu of oral argument, which we reject for the reasons stated below."
2. On page 18, second paragraph, delete the second sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1700442) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Brian Hernandez appeals from his conviction for the second degree murder of his roommate as well as assault with a firearm on the roommate's fiancée. He contends that the trial court (1) erred in admitting a pre-Miranda response to a police officer's question (see Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) failed to instruct the jury on the lesser included offense of voluntary manslaughter based on a heat of passion; (3) abused its discretion in sentencing; and (4) erroneously imposed certain fines and fees without a showing that Hernandez had an ability to pay. We affirm.
Also pending is Hernandez's petition for writ of habeas corpus (case No. E074476), which we ordered to be considered with this appeal. We address Hernandez's petition by means of a separate order.
I. FACTUAL AND PROCEDURAL HISTORY
Hernandez first met the murder victim (the roommate) around December 2016 at College of the Desert in Palm Desert. Shortly thereafter, the victim mentioned that he had no place to live, and Hernandez agreed to rent him a spare room in his apartment.
Hernandez did not permit the roommate's fiancée to live at the apartment, but she nevertheless stayed over from time to time. In January 2017, Hernandez saw a broken crack vial on his desk and suspected the fiancée was using drugs. According to Hernandez, when he confronted the roommate about it, the roommate replied that it was none of his business and that the roommate should "kick [his] ass and put [him] in the hospital," which made Hernandez "fear[] for [his] life."
Hernandez wanted the roommate out of the apartment by the end of February 2017, and the roommate had told Hernandez that he had found a new apartment. The fiancée testified at trial that on February 28, 2017, Hernandez told her that they needed "to be out the next day or you won't like what's going to happen." The roommate told Hernandez later that day that they needed a couple more days because their plans for a new apartment had fallen through, to which Hernandez responded, "Hell no."
That night, the couple went to purchase a padlock for their bedroom. Although they planned to move out the next day, the fiancée felt scared about being alone in the apartment that night once the roommate left for work. When they returned to the apartment complex, they saw a large mirror next to the trash bins. The fiancée thought the mirror would look good in their next apartment, so they carried it into their bedroom. She testified that Hernandez saw them carry the mirror and appeared incredulous, but Hernandez testified that he never saw them bring in the mirror.
The fiancée testified, "'Are you serious?' That was his face. 'Are you serious?'" and that Hernandez said "'Really?'" when he saw them bring the mirror in.
Later that night, Hernandez saw the roommate cooking in the kitchen. Hernandez confronted him, asking, "Why are you playing games?"
Hernandez and the fiancée have different accounts of what happened next. According to Hernandez, the roommate replied, "I'm not playing any games," said that he wasn't going to move anywhere, and "at that point . . . just attacked" Hernandez, hitting him a couple times on the head and bear hugging him. Hernandez had a "great fear" for his life at that point and believed that the roommate was going to kill him. Hernandez broke free and retrieved a gun from his bedroom. He saw the roommate at the entrance to Hernandez's bedroom. The roommate said, "I'm going to stab you," and then went back to the kitchen, reaching for a knife from a knife block. Hernandez fired a warning shot, told the roommate "Don't do it," and saw the roommate reach for a knife again. Hernandez then fired a second shot, this time hitting the roommate in the back of the head from 15 feet away. The fiancée then came out of the bedroom panicking, and Hernandez "told her to get out of the apartment." When asked at trial about whether he shot the roommate out of anger or frustration, Hernandez answered, "No. I didn't shoot him out of anger. I shot him out of self-defense."
According to the fiancée, after Hernandez asked the roommate why he was playing games, the roommate "[c]almly" responded, "No, man. No games." The fiancée, who was in the bedroom at the time, did not hear Hernandez or the roommate make any other statements before she heard a single gunshot a couple of minutes later. When she panicked and sought to help the roommate, Hernandez pointed the gun at her, saying, "Do you want to die too?" and "Get out of my house." The fiancée then fled and asked a neighbor to call 911.
Two police officers, Marcus Futch and Cory Carranza, responded to the call. The officers approached Hernandez, who was at the bottom of the staircase leading up to the apartment. Futch's audio recording device captured the following exchange:
"FUTCH: Back here. How's it goin'? What's goin' on?
"HERNANDEZ: Just check me and cuff me. I shot the guy upstairs.
"FUTCH: Oh you shot him? Hey Corey.
"[CARRANZA]: Yeah.
"FUTCH: Get over here. He's upstairs.
"HERNANDEZ: You might want a, paramedic.
"[CARRANZA]: (Unintelligible.)
"FUTCH: Right here. Upstairs.
"HERNANDEZ: (Unintelligible.)
"FUTCH: This is the suspect.
"[CARRANZA]: What's that?
"FUTCH: He's a suspect. He shot him.
"[CARRANZA]: (Unintelligible)?
"HERNANDEZ: I'm (unintelligible).
"[CARRANZA]: Where at?
"HERNANDEZ: (Unintelligible).
"FUTCH: Where's the gun at?
"[CARRANZA] Is he alive do you know?
"HERNANDEZ: Upstairs. I emptied it. It's on the table.
"FUTCH: All right. The gun's upstairs on the table emptied.
"MAN 2: Corey?
"FUTCH: He's upstairs Sarge.
"MAN 2: The victim's upstairs?
"FUTCH: Yeah. Come over here man.
"HERNANDEZ: What did he say?
"FUTCH: They're talkin'. Do me a favor, just cup a—cup a squat right here boy. I'm gonna put you down. Come on. Sit on the edge right here. Sit on the concrete. Scoot down. I got ya. Go ahead. Go on down. Go ahead. You're not gonna fall. Stay right there.
"HERNANDEZ: Tell the paramedics (unintelligible).
"FUTCH: They're callin' right now. What happened?
"HERNANDEZ: Enough is enough. I'll talk to detective."
The roommate was transported to the hospital, where he later died.
At trial, a crime scene investigator testified that he recovered two spent shell casings in Hernandez's gun but only one spent bullet. The investigator also testified that there was chicken and a frying pan on the floor but no knife.
The jury found Hernandez guilty of second degree murder (count 1; Pen. Code, § 187, subd. (a)) and assault of the fiancée with a firearm (count 2; § 245, subd. (a)(2)). In doing so, it rejected Hernandez's theory that he shot the roommate in perfect or imperfect self-defense. The jury also found true allegations that Hernandez personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) in connection with the murder and that he personally used a firearm (§ 12022.5, subd. (a)) in connection with the assault with a firearm. The trial court sentenced Hernandez to consecutive terms of (1) 15 years to life for the murder, (2) 25 years to life for the firearm enhancement on the murder, (3) four years (the upper term) for assault with a firearm, and (4) 10 years (the upper term) for the firearm enhancement on the assault with a firearm for a total of 54 years to life. The trial court also imposed, among other fines and fees, a $10,000 restitution fine (§ 1202.4, subd. (b)), a $60 criminal conviction assessment fee (Gov. Code, § 70373), and a $80 court security fee (§ 1465.8).
Further undesignated statutory references are to the Penal Code.
Hernandez was acquitted on a third charge of making a criminal threat (§ 422).
II. DISCUSSION
We address each of Hernandez's contentions in turn.
A. Admission of Pre-Miranda Statement
As shown above, the officers asked Hernandez multiple questions when they arrived on the scene. However, Hernandez challenges only the response to the last question ("Enough is enough," in response to "What happened?") as improperly admitted in violation of Miranda. At trial, the People argued that "[e]nough is enough" meant that Hernandez was tired of the roommate, and therefore the statement tended to disprove any claim that Hernandez shot him in self-defense. As the People stated in closing argument, "[i]t was the expression of frustration that he had towards" the roommate. As we discuss below, although the statement may have been improperly admitted, any such error would have been harmless beyond a reasonable doubt.
Hernandez disputed the People's characterization of what the statement meant, rejecting the idea that it meant he "had had it with" the roommate and noting instead that the statement was made after Futch had asked him "a bunch of questions."
"In Miranda . . . the United States Supreme Court established procedural safeguards, including the familiar admonitions, as a prophylactic measure to protect a suspect's right against self-incrimination." (People v. Elizalde (2015) 61 Cal.4th 523, 530, fn. omitted (Elizalde).) In order for Miranda's safeguards to apply, a suspect must be subjected to custodial interrogation, which for these purposes means "either express questioning or its functional equivalent." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301.) "Statements obtained in violation of Miranda are not admissible to prove the accused's guilt in a criminal prosecution." (People v. Ray (1996) 13 Cal.4th 313, 336 (Ray).)
Both the United States and California Constitutions protect an accused's right against self-incrimination. (U.S. Const., 5th and 14th Amends.; Cal. Const., art. I, § 15.) But "[u]nder California law, issues relating to the suppression of statements made during a custodial interrogation must be reviewed under federal constitutional standards." (People v. Nelson (2012) 53 Cal.4th 367, 374.)
The People conceded before the trial court that by the time Hernandez stated "[e]nough is enough," he was in custody, and they do not contend otherwise on appeal. Thus, the only issue is whether Hernandez's response "stemm[ed] from custodial interrogation" (Miranda, supra, 384 U.S. at p. 444, italics added). "'[F]indings on whether there was custodial interrogation . . . are reviewed for substantial evidence . . . .'" (People v. Clair (1992) 2 Cal.4th 629, 678.)
Miranda warnings are not needed before all conceivable interactions between suspects and law enforcement, and "not all questioning of a person in custody constitutes interrogation under Miranda." (Ray, supra, 13 Cal.4th at p. 338.) For instance, questions made to "'secure the "'biographical data necessary to complete booking or pretrial services'"'" generally fall outside of interrogation under Miranda. (Elizalde, supra, 61 Cal.4th at p. 533; but see id. at p. 538 [booking exception does not apply if police should know that question at issue is "'reasonably likely to elicit an incriminating response'"].) Miranda warnings also do not need to precede spontaneous statements, as "[v]olunteered statements of any kind are not barred by the Fifth Amendment." (Miranda, supra, 384 U.S. at p. 478.) Nor do Miranda warnings need to precede "questions in a situation posing a threat to the public safety" so long as there is "an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon." (New York v. Quarles (1984) 467 U.S. 649, 657, 659, fn. 8.) Finally, "'neutral inquir[ies]' made for 'the purpose of clarifying [statements] or points that [the questioner] did not understand'" do not trigger Miranda. (Ray, at p. 338.)
Even with these exceptions in mind, however, Hernandez was being interrogated when Futch asked him what had happened. The question, for example, did not seek biographical information while Hernandez was being booked. Rather, it sought facts about the killing. There is also no indication that Hernandez stated "[e]nough is enough" spontaneously. And although the People argue that Futch's question falls under the public safety exception, there was no immediate danger associated with Hernandez's gun, as Hernandez was in custody and had already told the officers that the gun was emptied and on the table.
Futch's question did not fall within the neutral inquiry exception either. Although the question was conceivably a request for clarification, perhaps due to Futch's professed "shock[]" at Hernandez's immediate admission that he had shot the guy upstairs, the neutral inquiry exception has not been held to apply to investigatory questioning of a suspect in custody. In People v. Turner (1984) 37 Cal.3d 302 (Turner), overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1114-1115, our Supreme Court distinguished two earlier cases, People v. Sanchez (1967) 65 Cal.2d 814 and People v. Superior Court of Santa Clara County (Mahle) (1970) 3 Cal.App.3d 476, each of which involved two on-the-scene questions. In both cases, "officers came onto the scene of the crime with no information concerning the crime or its perpetrators." (Turner, supra, at p. 318.) The first question that officers asked in each case '"What happened?"' and '"Who did this?"' did not need Miranda warnings, the court concluded, because at those moments "the investigations were still 'general inquiries' . . . [citation] and the suspects were not yet 'in custody' [citation]." (Ibid.) However, by the time officers asked the second questions '"Where is the knife?"' and '"Why did you do it?"', the investigations in both cases "had focused on a particular individual and, in neither case, was the suspect free to leave." (Ibid.) The court thus concluded that Miranda warnings should have preceded the second questions in each case and accordingly disapproved Mahle. (Ibid.) Applying Turner to the facts here, by the time Futch asked what happened, the investigation had already focused on a particular individual—Hernandez—who was already in custody and thus not free to leave. Turner thus suggests that Futch's question was not a neutral inquiry, and that Hernandez's "[e]nough is enough" statement was the product of a custodial interrogation.
Turner did not formally disapprove Sanchez, but only because "Sanchez was decided under preMiranda standards." (Turner, supra, 37 Cal.3d at p. 318, fn. 5.)
However, even assuming that Hernandez's statement was obtained in violation of Miranda, the error in admitting it was harmless beyond a reasonable doubt.
"The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard . . . . [Citations.] That test requires the People here 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.]" (Elizalde, supra, 61 Cal.4th at p. 542.) "'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.]" (People v. Neal (2003) 31 Cal.4th 63, 86.)
With or without the statement, the jury would have rejected Hernandez's claim that he killed the roommate in self-defense. For one, on the day the roommate was killed, Hernandez asked the fiancée to tell the roomate that the two needed "to be gone by the next day" or he "will not like what's going to happen." Even if this did not necessarily mean Hernandez expressed an intent to kill the roommate, the threat indicated that Hernandez intended to initiate at least some action against the couple. For another, Hernandez shot the roommate in the back of the head from a distance of 15 feet, and although Hernandez testified that he saw the roommate reach for a knife second time, nothing in the record indicates that the roommate successfully pulled any knife out of the knife block. Self-defense, even imperfect self-defense, requires belief of an imminent threat. (See People v. Chavez (2018) 22 Cal.App.5th 663, 689; CALCRIM Nos. 505, 571.) For these purposes, imminent means that the threat "'must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired.'" (People v. Aris (1989) 215 Cal.App.3d 1178, 1187, italics added, disapproved on another ground in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) The jury had ample reason to reject Hernandez's belief of an imminent threat given the roommate's distance, turned-away stance, and lack of a useable weapon at the time he was shot. Finally, despite the People's argument at trial to the contrary, the jury may well have construed "[e]nough is enough" as Hernandez's refusal to answer Futch's question, given that Hernandez followed it up with "I'll talk to [a] detective." Thus, on this record, Hernandez's statement that "[e]nough is enough" was "unimportant in relation to everything else the jury considered" (People v. Neal, supra, 31 Cal.4th at p. 86) in determining whether Hernandez acted in self-defense.
B. Jury Instructions on Lesser Included Offense
Hernandez contends that the jury should have been instructed on voluntary manslaughter on a heat of passion theory in addition to one on an imperfect self-defense theory. We disagree.
"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." (People v. St. Martin (1970) 1 Cal.3d 524, 531.) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (People v. Blair (2005) 36 Cal.4th 686, 745, disapproved on another ground in People v. Rices (2017) 4 Cal.5th 49, 76.) "To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (People v. Blair, supra, at p. 745.) "[T]he court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162; see People v. Williams (2015) 61 Cal.4th 1244, 1246 ["'[s]peculation is insufficient to require the giving of an instruction on a lesser included offense'"].)
"That voluntary manslaughter is a lesser included offense of murder is undisputed." (People v. Duff (2014) 58 Cal.4th 527, 561.) "Imperfect self-defense, which reduces murder to voluntary manslaughter, arises when a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury. [Citations.] Heat of passion, which likewise reduces murder to voluntary manslaughter, arises when the defendant is provoked by acts that would 'render an ordinary person of average disposition "liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment"' [citation] and kills while under the actual influence of such a passion [citation]." (Id. at pp. 561-562.) "'However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . .'" (People v. Breverman, supra, 19 Cal.4th at p. 163.) A trial court must instruct on both imperfect self-defense and heat of passion where both are supported by substantial evidence, even though the two are separate theories for the same offense. (Id. at pp. 148-149.)
"We review de novo a trial court's failure to instruct on a lesser included offense [citation], and in doing so we view the evidence in the light most favorable to the defendant." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
The trial court instructed the jury on imperfect self-defense but not on heat of passion. Hernandez contends this was error and that substantial evidence existed to justify a provocation.
The problem with Hernandez's argument is that, when he testified at trial, he disclaimed shooting the roommate in a heat of passion. During his testimony, the People asked, "Shooting someone in the back of the head because you're frustrated because he's not doing what you're saying was out of character with you; correct?" In response, Hernandez denied that he shot the roommate out of anger or frustration: "No. I didn't shoot him out of anger. I shot him out of self-defense." Such a statement strongly undermines Hernandez's claim of provocation here.
In People v. Moye (2009) 47 Cal.4th 537, our Supreme Court held that "[i]n the face of defendant's own testimony, no reasonable juror could conclude defendant acted '"'rashly or without due deliberation and reflection, and from this passion rather than from judgment'" [citations]' [citation] when, according to defendant, he responded to [an] attack with [a] baseball bat by grabbing the bat . . . and using it to defend himself . . . ." (Id. at p. 553.) As in Moye, where the defendant claimed he was only acting in self-defense, so too did Hernandez claim he shot the roommate only out of self-defense. Moye is therefore highly applicable, if not controlling, on the issue.
Although Hernandez cites Moye, supra, 47 Cal.4th 537, in describing the background applicable law on this issue, he nowhere attempts to address Moye's holding or reasoning.
There is one potential reason why Moye is not on all fours with this case. In Moye, the defendant's testimony that he acted in self-defense was "uncontested." (Moye, supra, 47 Cal.4th at p. 541.) Here, Hernandez points to various evidence, which could suggest that his testimony on this point was contested. Even if this evidence shows that Hernandez's testimony was contested, however, it does not constitute substantial evidence of provocation. For instance, Hernandez notes the threats the roommate made to Hernandez in January 2017, as well as the fiancée's testimony that Hernandez was incredulous when he saw the couple bring the mirror into their room on the night of the murder. These events would not have constituted sufficient provocation. As we recently stated in People v. McShane (2019) 36 Cal.App.5th 245, "[d]efendant had had ample time to cool off after the first incident [here, the January 2017 confrontation], and the second incident was not sufficient provocation in itself. Thus, this was not a situation in which the whole could add up to more than the sum of the parts." (Id. at p. 257.) Although we must "view the evidence in the light most favorable to the defendant" (People v. Millbrook, supra, 222 Cal.App.4th at p. 1137), no ordinary person of average disposition in Hernandez's position would have been sufficiently provoked.
Moreover, Hernandez denied ever seeing the couple bring in the mirror.
The other evidence Hernandez relies on fares no better. First, Hernandez points to the fiancée's testimony that Hernandez and the roommate "didn't like each other" as well as his own testimony about their differing statures. Neither of these generic characteristics, however, are acts that could constitute provocation. Second, Hernandez contends that the roommate "provoked him by installing a padlock on his bedroom door . . . on the very day he was supposed to be moving out." The record, however, does not support this. Although the fiancée testified that she and the roommate bought a padlock for the bedroom on the night the roommate was killed, the record does not reveal any testimony showing that the padlock was actually installed or that Hernandez knew they intended to install one. Finally, Hernandez contends he was provoked when the roommate "either made a retort to Hernandez confronting him as to why he was playing games (as [the fiancée] testified) or physically lifted Hernandez, causing fear and pain, and threatened Hernandez (as Hernandez testified)." The fiancée testified, however, that the roommate had "[c]almly" responded to Hernandez's question. Moreover, Hernandez did not testify that the roommate verbally provoked him immediately before the confrontation in any way, and any argument that Hernandez could have been provoked solely from the roommate's physical threats—despite Hernandez's own testimony to the contrary—is foreclosed by Moye, supra, 47 Cal.4th 537.
As Hernandez described the roommate at trial, "He's much bigger than me. He's like probably six-two, maybe 250 pounds. I was about—I'm five-ten, maybe 165 at that time."
The record does indicate that the roommate changed the lock to his room some weeks before, but this is distinct from a claim that he changed the lock on the night he was killed.
Accordingly, the trial court was not required to instruct the jury on a heat of passion theory.
In a letter brief permitted in lieu of oral argument, Hernandez again contends that the series of events and confrontations described above culminated in provocation. As we have stated, however, these events, whether individually or cumulatively, do not constitute substantial evidence of a heat of passion defense. In this regard, we note that Hernandez again suggests, without any citation to the record, that Hernandez knew the roommate intended to change the lock on his door on the night he was killed, even though nothing in the record supports this.
C. Sentencing
Hernandez contends that the trial court abused its discretion in (1) imposing the upper term on count 2 (assault with a firearm), (2) imposing the upper term on the firearm enhancement on count 2, and (3) not striking the firearm enhancements on the two counts altogether. Hernandez forfeited these claims by not objecting at the time of sentencing, but they are unmeritorious in any event.
"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).) Similarly, "[i]f an enhancement is punishable by one of three terms, the court must, in its discretion, impose the term that best serves the interest of justice . . . ." (Cal. Rules of Court, rule 4.428(a).) "Even with the broad discretion afforded a trial court," however, its "sentencing discretion must be exercised in a manner that is not arbitrary or capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "Only a single aggravating factor is required to impose the upper term" (People v. Osband (1996) 13 Cal.4th 622, 728), and "'[t]he court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary'" (People v. Sperling (2017) 12 Cal.App.5th 1094, 1102).
Further undesignated rule references are to the California Rules of Court.
Hernandez's trial counsel did not raise any of the objections he asserts on appeal at the time he was sentenced. Furthermore, he does not dispute this forfeiture on appeal. His claims are therefore forfeited.
Alternatively, Hernandez contends that his trial attorney failed to provide effective assistance of counsel. "'To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]'" (In re Roberts (2003) 29 Cal.4th 726, 744-745; see Strickland v. Washington (1984) 466 U.S. 668.)
Addressing the imposition of the upper terms first, we find that the trial court committed error but not reversible error. In imposing the upper terms, the trial court relied on the probation report, which cited the following aggravating factors: (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 (rule 4.421(a)(1)); (2) Hernandez was armed with or used a weapon at the time of the commission of the crime (rule 4.421(a)(2)); (3) the victim was particularly vulnerable (rule 4.421(a)(3)); (4) the manner in which the crime was carried out indicates planning, sophistication, or professionalism (rule 4.421(a)(8)); and (5) Hernandez engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)).
Consideration of the second factor—that Hernandez was armed with or used a weapon at the time of the commission of the crime—was improper. A charge of assault with a firearm may properly be enhanced by personal use of a firearm. (See People v. Ahmed (2011) 53 Cal.4th 156, 161, fn. 2.) However, because that enhancement carries its own lower, middle, and upper terms, the fact that the perpetrator used a weapon (an element of the enhancement) cannot itself justify the upper term on the enhancement. "A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term." (Rule 4.420(d).)
However, the error was not prejudicial. "In order to determine whether error by the trial court in relying upon improper factors in aggravation requires remanding for resentencing 'the reviewing court must determine if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." [Citation.]'" (People v. Avalos (1984) 37 Cal.3d 216, 233.) In doing so, "the reviewing court may not simply ask whether the imposed sentence would be 'wholly unsupported or arbitrary in the absence of error' but must also reverse where it cannot determine whether the improper factor was determinative for the sentencing court. [Citation.]" (Ibid.)
Hernandez contends that the trial court improperly considered Hernandez's invocation of his right to a jury trial in imposing the upper terms, but we disagree. It is problematic that the probation report stated Hernandez "refused to provide any additional statements to police [after his arrest] and took his case to a jury trial instead of entering a plea." "[B]y increasing the penalty in the case of a defendant who chooses to rely on the presumption of innocence, to put the state to the test of proving its case, and to assert his right to a jury trial, one is in effect penalizing a defendant who asserts rights to which he is entitled." (People v. Morales (1967) 252 Cal.App.2d 537, 546.) The People should not even be implying that the refusal to enter a negotiated plea merits a heavier sentence. However, there is no indication in this case that the trial court relied on the fact of a jury trial in determining Hernandez's sentence. (See People v. Colds (1981) 125 Cal.App.3d 860, 863 [sentence unauthorized where trial court stated "I will take into consideration that the defendant did waive a jury trial"]; People v. Morales, supra, at p. 544 ["it was an abuse of discretion for the trial court in the instant case to impose a consecutive sentence upon defendant solely upon the basis that he availed himself of the right to trial"].)
Here, "it seems clear that the improper dual use of facts was not determinative" and that "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." (People v. Avalos, supra, 37 Cal.3d at p. 233.) Hernandez's assault showed a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)). Hernandez shot the roommate, not in self-defense, but rather while the roommate was 15 feet away and facing away from Hernandez. Moreover, Hernandez's threat to the couple that "[they] will not like what's going to happen" suggests a degree of planning (rule 4.421(a)(8)), and one can hardly contest that Hernandez engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)). Hernandez's actions in connection with count 2 rose above a standard charge of assault with a firearm, justifying upper terms on both the charge and the enhancement. (See People v. Castorena (1996) 51 Cal.App.4th 558, 562 ["[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence"].)
Regarding the court's decision to not strike the firearm enhancements, Hernandez contends that it is unclear whether the trial court relied on improper factors in doing so. To the extent the trial court may have, however, we find no reversible error for the same reasons discussed above.
Prior to 2018, a trial court had no discretion to strike firearm enhancements such as Hernandez's. (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) Under Senate Bill No. 620, effective January 1, 2018, trial courts may now dismiss them. (Stats. 2017, ch. 682, §§ 1-2.) Hernandez was sentenced on May 30, 2018, after the change in law went into effect, and no one contends that the trial court erroneously applied pre-2018 law. We note this only to avoid confusing the potential issues.
Accordingly, Hernandez does not show that his trial counsel's representation fell below an objective standard of reasonableness, and he thus fails to demonstrate ineffective assistance of counsel.
D. Fines and Fees
While this case was pending, another district of this Court of Appeal decided People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that a trial court must "conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before requiring a defendant to pay a restitution fine under section 1202.4 or assessments under section 1465.8 and Government Code section 70373. (People v. Dueñas, supra, at p. 1164.) Hernandez contends that the trial court improperly imposed a $10,000 restitution fine and $140 in fees under these statutes without first considering his ability to pay.
Hernandez forfeited the ability to challenge the $10,000 restitution fine by failing to object before the trial court. The amount was above the $300 minimum required for felony convictions. (§ 1202.4, subd. (b)(1).) Because it was above the minimum, the trial court had the ability to consider Hernandez's ability to pay. (§ 1202.4, subd. (c) ["Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . ."].) Hernandez did not object to the fine before the trial court, so he has forfeited his challenge to that fine here. (People v. Taylor (Dec. 13, 2019, E069293) 43 Cal.App.5th 390, 399-401; People v. Jones (2019) 36 Cal.App.5th 1028, 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)
With regard to the remaining $140, Hernandez was sentenced to 54 years to life with 522 days of credit for time served. "Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. [Citation.] Fifty percent of [Hernandez's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. [Citations.]" (People v. Taylor, supra, 43 Cal.App.5th at p. 402.) With at least $5.40 per month available to pay $140, Hernandez will be able to pay off these amounts in less than three years into his over 50-year sentence. Thus, even assuming that the fines were wrongfully imposed under Dueñas, the error was harmless beyond a reasonable doubt. (People v. Jones, supra, 36 Cal.App.5th at p. 1035.)
The issue is currently pending before the California Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.