P. v. Herrera

Filed 12/18/07 P. v. Herrera CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY HERRERA,
Defendant and Appellant.
B194531
(Los Angeles County
Super. Ct. No. TA066571)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Gary E. Daigh, Judge. Affirmed.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E.
Winters and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

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After a jury trial, Herrera was convicted of one count of attempted murder (Pen.
Code,1 §§ 664, 187, subd. (a)) and one count of second degree robbery (§ 211). The jury
found true the special allegations regarding firearm use (§ 12022.53, subds. (b)-(d)). He
was sentenced to five years on the robbery count, a consecutive term of life with the
possibility of parole on the attempted murder, and a consecutive 25-years-to-life term
pursuant to section 12022.53, subdivision (d) on the attempted murder conviction.
In 2006 this court affirmed Herrera’s conviction on appeal (B173384), specifically
rejecting his claims gang evidence was improperly admitted, the robbery count should
have been stayed pursuant to section 654 and imposition of the consecutive sentence
violated his Sixth Amendment right to a jury trial. This court also remanded for
resentencing, concluding the trial court had imposed an unauthorized sentence when it
stayed all of the section 12022.53 enhancements attached to the robbery count and that
imposition of a section 12022.53, subdivision (b) enhancement was appropriate because
there was use but not discharge of the gun in the robbery.
At the resentencing hearing Herrera asked the trial court to reconsider its prior
ruling that section 654 did not apply to the robbery and attempted murder convictions and
its order imposing the upper term on the robbery conviction. The court declined his
requests and thereafter imposed the 12022.53, subdivision (b) enhancement on the
robbery conviction. In this appeal, Herrera claims the imposition of the upper term on
the robbery count, consecutive sentences on the robbery and attempted murder and the
section 12022.53 enhancements violated his Sixth Amendment right to a jury trial. As
explained herein, we disagree and therefore affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
On September 5, 2002, Herrera demanded money at gunpoint from Federico
Mendez, who was selling plants out of his parked truck in Compton. Mendez turned over
$60 to $70. When Mendez said he had no more money, Herrera struck Mendez in the left
ear with his handgun and fired one shot into Mendez’s stomach. Mendez struggled for
control of the gun, which fired four more stray shots. Herrera then got out of the truck
and “took off running.” Police chased after him.
Mendez underwent surgery for the gunshot wound in the stomach. At the time of
trial, he continued to feel “a lot of pain” in his back. Mendez identified Herrera from
photographic and physical lineups.
In addition, Herrera was identified as the shooter in a fatal shooting of a Leonard
Jackson which occurred hours before he approached Mr. Mendez. A firearms examiner
concluded the two bullets recovered from Jackson’s body and the one bullet recovered
from Mendez’s body were fired from the same firearm.
The information charged Herrera with three counts: in count 1 with murder (§ 187,
subd. (a)) as to Jackson; in count 2 with attempted murder (§§ 664, 187, subd. (a)) as to
Mendez; and in count 3 with second degree robbery (§ 211) as to Mendez. As to counts
1 and 2, the information alleged firearm use. (§ 12022.53, subds. (b)-(e).) It further
alleged that counts 2 and 3 were committed for the benefit of, at the direction of, and in
association with a criminal street gang with the specific intent to promote, further and
assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)3
The jury acquitted Herrera of Jackson’s murder. It convicted him of the attempted
murder and second degree robbery of Mendez. The jury found true the special
2 The factual Background and Procedural History are taken from this Court’s
opinion in B173384.
3 The information was amended during trial to allege section 12022.53, subdivisions
(b)-(d), gun use enhancements as to count 3.

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allegations regarding firearms use under subdivisions (b)-(d) of section 12022.53, but
found the gang allegations not true.
The court sentenced Herrera to the total term of life with possibility of parole, plus
30 years to life. It selected the high term of five years as the base term on count 3, and
stayed sentences as to the gun use enhancements as to section 12022.53, subdivisions (b),
(c) and (d). The sentence on count 2 was life with the possibility of parole enhanced by a
consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d); the
court stayed enhancements as to section 12022.53, subdivisions (b) and (c).
Herrera appealed. In 2006 this court affirmed his convictions, but remanded for
resentencing. We concluded the trial court had imposed an unauthorized sentence when
it stayed all of the section 12022.53 enhancements attached to the robbery count and that
imposition of a section 12022.53, subdivision (b) enhancement was appropriate.
At the resentencing hearing Herrera asked the trial court to reconsider: (1) its
prior ruling that section 654 did not apply as to the robbery and attempted murder
convictions; and (2) the order imposing the upper term on the robbery conviction. The
trial court declined his requests and thereafter imposed the 12022.53, subdivision (b)
enhancement on the robbery conviction.
This appeal followed.
DISCUSSION
I. The Imposition Of The Upper Term On The Robbery Count Did Not Violate
Appellant’s Right To A Jury Trial.
The trial court originally sentenced Herrera on the robbery count to the upper term
of five years. At the hearing where he was to be resentenced, Herrera asked the court to
reconsider the upper term sentence on the robbery count and specifically asked the court
to sentence to the mid-term. In response the trial court stated:

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“The sentencing transcript [from the original sentencing
hearing] indicated that the two factors in [aggravation] were that he
was on probation at the time [of the crimes] and that he used a
firearm. Obviously, I cannot use the fact that he used the firearm as
a circumstance of [aggravation]. [¶] So at the time he was on two
counts of probation in BA229762 for it looks like bringing narcotics
into the jail, he was also on probation in TA063924. I’m a little
unclear as to whether it’s attempted extortion or vandalism, Penal
Code section 69. He was on two grants of probation. Either of those
on their own are circumstances in aggravation, and they clearly
outweigh any circumstances in mitigation which there are none. [¶]
So I’m going to reimpose the high term of five years.
On appeal, based on Cunningham v. California (2007) 127 S.Ct. 856, Herrera
contends the imposition of the upper term on count 3, the robbery, violated his right to a
jury trial. Specifically Herrera asserts that the trial court erred in relying upon an
improper factor in selecting the upper term; he claims the court erred in citing his
probation status as a factor in aggravation. Although Herrera concedes the trial court
may rely on the fact of a prior conviction, he argues that recidivism exception must be
narrowly construed and does not include the probation status of a criminal defendant.
We do not agree.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the court concluded:
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” In Cunningham, the court concluded “the Federal
Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.” (Cunningham v.
California, supra, 127 S.Ct.at p. 860.) Accordingly, the court reasoned California’s
determinate sentencing law violated a defendant’s right to a jury trial because it permitted
a judge, rather than the jury, to find facts by a preponderance of the evidence, exposing a

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defendant to an elevated upper term because the middle term was the relevant statutory
maximum. (Id., at pp. 868-871.)
“The prior conviction exception referred to in Cunningham derives from the
Supreme Court’s opinions in Apprendi v. New Jersey, supra, 530 U.S. 466, Blakely v.
Washington (2004) 542 U.S. 296 . . . and Almendarez-Torres v. United States (1998) 523
U.S. 224 . . . . Courts in California and in other jurisdictions have construed Apprendi
‘“as requiring a jury trial except as to matters relating to ‘recidivism.’”’” (People v. Yim
(2007) 152 Cal.App.4th 366, 370.)
The California Supreme Court recently held that “as long as a single aggravating
circumstance that renders a defendant eligible for the upper term sentence has been
established in accordance with requirements of Apprendi and its progeny, any additional
fact finding engaged in by the trial court in selecting the appropriate sentence among the
three available options does not violate the defendant’s right to jury trial.” (Original
italics.) (People v. Black (2007) 41 Cal.4th 799, 812, [hereinafter Black II].) The court
then concluded, “so long as a defendant is eligible for the upper term by virtue of facts
that have been established consistent with Sixth Amendment principles, the federal
Constitution permits the trial court to rely upon any number of aggravating circumstances
in exercising its discretion to select the appropriate term by balancing aggravating and
mitigating circumstances, regardless of whether the facts underlying those circumstances
have been found to be true by a jury.” (Id. at p. 813; see also People v. Sandoval (2007)
41 Cal.4th 825.)
“Thus, the exception to the jury trial right for prior convictions, ‘is not limited
simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature
of that conviction, thereby permitting sentencing courts to determine whether the prior
conviction is the type of conviction (for example, a conviction of a “violent” felony) that
renders the defendant subject to an enhanced sentence.’” (Original italics.) (People v.
Yim, supra, 152 Cal.App.4th at p. 370.) The California Supreme Court also noted the
recidivism exception applied to “not only the fact that a prior conviction occurred, but
also other related issues that may be determined by examining the records of the prior

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convictions.” (Black II, supra, 41 Cal.4th p. 818.) In Black II, the court reasoned the
prior conviction exception should not be read too narrowly and ruled it included whether
the prior convictions were numerous or of increasing seriousness. (Ibid.)
In Yim, the defendant argued, among other things, the trial court erred when it
relied on his parole status and unsatisfactory performance on parole to impose the upper
term. (People v. Yim, supra, 152 Cal.App.4th at p. 370.) The appellate court rejected
defendant’s argument, finding the factors supporting imposition of the upper term were
recidivism-related. (People v. Yim, supra, 152 Cal.App.4th at p. 371.) The court
reasoned that the mere recitation of the defendant’s dates of convictions and release on
parole demonstrated, as a matter of law, that he had committed new offenses while on
parole, meaning he had performed poorly on parole. (Ibid.)
The parole status factor in Yim is the same factor present in the case at bar, i.e.,
appellant’s status as a parolee when he committed the robbery and attempted murder in
this case. Thus it is similarly sufficient to support the imposition of the upper term on the
robbery count.4 Consequently, we conclude the trial court did not err in imposing the
upper term on the robbery conviction.
II. The Court’s Imposition of Consecutive Sentences Does not Constitute
Constitutional Error Under Cunningham.
As he claimed in his first appeal Herrera again asserts that because the trial court
rather than the jury found the facts necessary to impose the consecutive sentences on the
4 In reaching this conclusion we also reject Herrera’s suggestion that the record does
not support the trial court’s factual finding that he was on probation at the time he
committed the robbery and attempted murder. At the resentencing hearing, the trial court
indicated that it was relying on the transcript from the prior sentencing hearing, where it
had before it (and expressly considered) the probation/sentencing report which contained
the relevant dates and details concerning Herrera’s parole status in BA229762 and
TA063924.

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robbery and attempted murder convictions the trial court violated his constitutional rights
and his sentences ran afoul of Cunningham.
In Black II our Supreme Court concluded that nothing in the United States
Supreme Court’s opinion in Cunningham entitled a criminal defendant to have the facts
underlying the decision to impose consecutive terms determined by a jury. (Black II,
supra, 41Cal.4th at p. 821.) In Black II, the Court equated consecutive sentences with the
maximum sentence for an offense. Therefore, the Court reasoned, the jury’s verdict
finding the defendant guilty of two or more crimes was enough, by itself, to authorize
consecutive sentences for each offense. Whether the defendant actually should serve
consecutive sentences is a “‘sentencing decision[ ] made by the judge after the jury has
made the factual findings necessary to subject the defendant to the statutory maximum
sentence on each offense . . . .’” (Id. at p. 823, quoting from People v. Black (2005) 35
Cal.4th 1238, 1264 (Black I).) In view of Black II, we reject the claim concerning the
imposition of consecutive sentences.
Likewise, we do not accept Herrera’s related argument that Cunningham
undermined this court’s reasoning in the majority opinion in People v. Cleveland (2001)
97 Cal.App.4th 263. In Cleveland a majority of this court held that Apprendi did not
require a jury to make determinations as to the application of section 654. Though in
Black I the application of Apprendi to section 654 was not at issue, the California
Supreme Court in Black I implicitly affirmed this court’s holding in Cleveland.
Moreover, although the United States Supreme Court required the California Supreme
Court to reassess Black I’s holding with respect to consecutive sentences in light of
Cunningham, Black II reaffirmed Black I and in so doing effectively left in place
Black I’s tacit endorsement of Cleveland. In our view, the holding in Cleveland has
survived Cunningham and Herrera has not otherwise convinced us that it is erroneous.

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III. The Court’s Imposition of The Section 12022.53 Enhancements Does not
Constitute Constitutional Error Under Cunningham.
As with Herrera’s claim concerning the application of section 654 to the robbery
and attempted murder conviction, he also argues that the trial court’s imposition of the
multiple section 12022.53 enhancements ran afoul of Cunningham: “under
Cunningham . . . a defendant has a constitutional right to a jury trial . . . regarding factual
findings necessary to find section 654’s multiple punishment proscription inapplicable.
[¶] That constitutional right is equally applicable in determining whether section 654
bars imposition of multiple enhancements.” We do not agree and reject this argument for
the same reasons we expressed above with respect to Herrera’s claim concerning section
654.
In any event, as our Supreme Court has concluded, section 654 does not apply to
multiple section 12022.53 enhancements in circumstances similar to this case. (See
People v. Palacios (2007) 41 Cal.4th 720, 726-727 [court found section 654 did not apply
where multiple enhancements alleged when each was based on a single act, though in the
commission of separate crimes, committed against a single victim].) Thus Herrerra’s
reliance on section 654 to bolster his claim that he is entitled to a jury trial on these
enhancements is without merit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P.J. ZELON, J.

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