P. v. Hernandez

Filed 4/23/07 P. v. Hernandez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL HERNANDEZ,
Defendant and Appellant.
B186089
(Los Angeles County
Super. Ct. No. BA250842)
APPEAL from a judgment of the Superior Court of Los Angeles County, Paul M.
Enright, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Modified and
affirmed.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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Manuel Hernandez (appellant) was convicted by a jury of first degree robbery
(count 1, Pen. Code, §§ 211, 212.5),1
aggravated mayhem (count 2, § 205), and
dissuading a witness by force or threat (count 3, § 136.1, subd. (c)(1)). The jury also
found as to all counts that he personally used a firearm, as to counts 1 and 2, that he
intentionally discharged a firearm causing great bodily injury, and as to counts 1 and 3,
that he personally inflicted great bodily injury. (§§ 12022.53, subds. (b)-(d), 12022.5,
subd. (a), 12022.7, subd. (a).) In a bifurcated trial, the jury found that he committed all
three offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Appellant was sentenced to a determinate term of 31 years, two terms of life with the
possibility of parole, and a term of 25 years to life. The court ordered the sentences to
run consecutively.
Appellant appeals, contending that there is insufficient evidence to support the
aggravated mayhem conviction, the trial court erred by imposing consecutive sentences,
and his constitutional rights were violated when the court imposed consecutive sentences,
relying on facts not found true by the jury.
We conclude the evidence supports the jury verdict, and determine the court erred
when it ordered consecutive sentences for all three counts. We modify the judgment by
staying the sentence imposed for dissuading a witness, as alleged in count 3, and affirm.
STATEMENT OF FACTS
Jose Nunez testified that on July 16, 2003, he was working as a taxicab driver
when he received a call at approximately midnight to pick up some passengers at 610
South Kenmore in Los Angeles. When Nunez arrived at the address, one of the
passengers, whom he identified as appellant, got into the front seat, and the other got in
the back. They told Nunez to pull into a parking lot. Appellant then produced a chrome
handgun and pressed the barrel of the gun to Nunez’s head. Appellant said he was from
the 18th Street gang and demanded Nunez’s money. Nunez handed over some money
1
All further undesignated statutory references are to the Penal Code.

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from the compartment in the dashboard and his cell phone. Appellant continued to point
the gun at Nunez and ordered him out of the car. Once outside the car, appellant stood
about five feet away from Nunez and told him to empty his pockets. Nunez gave
appellant his wallet. Appellant pointed the gun at Nunez’s chest, repeated that he was
from the 18th Street gang, and threatened to kill Nunez and his family if Nunez said
anything about the incident. Appellant then lowered the gun towards Nunez’s groin and
fired a single shot. The bullet went through the base of Nunez’s penis and entered his left
thigh. Nunez fell to the ground and the two men ran off. Nunez managed to get back
into the cab. He drove home, and his wife took him to the hospital. Police arrived at the
hospital and appellant described the two men who had robbed him.
The next morning, Los Angeles Police Detective John Hernandez, a gang
investigator, showed Nunez two sets of photographs. Nunez immediately identified
appellant as the shooter, but could not identify the second man.
Nunez testified that as a result of the shooting, he suffers erectile dysfunction and
has a burning sensation when he urinates. He has numbness in his knee. The bullet
remains in his leg.
Nunez testified that a week before trial started, three men with tattoos came to his
apartment and told his wife that if Nunez were to testify, something bad would happen to
him. Nunez told the prosecutor he did not want to testify.
The mother of appellant’s children, Flor Gonzalez, testified that she was living at
610 South Kenmore on the day of the shooting. Appellant appeared at her apartment
briefly at approximately 11 p.m. Detective Hernandez testified that the day after the
shooting, Gonzalez told him that when she saw appellant on the prior evening, he was
carrying a shiny handgun and that he associated with 18th Street gang members. She
signed a written statement, but told Detective Hernandez that she was afraid of testifying.
At trial, Gonzalez would only say that she saw appellant carrying something shiny on the
evening of the shooting, and that she did not remember telling Detective Hernandez that
appellant was an 18th Street gang member.

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Los Angeles Police Officer Edgar Hernandez testified that he is assigned to the
Department’s gang detail and works exclusively on the 18th Street gang. 610 South
Kenmore is within the gang’s territory. Appellant is an admitted 18th Street gang
member, and has tattoos on his knuckles to signify this membership.
A forensic print specialist from the police department testified that the only
readable fingerprints lifted from Nunez’s vehicle did not match those of appellant.
The only defense witness was Rigoberto Hernandez Gutierrez, appellant’s uncle.
He testified that on the date of the shooting, appellant was working for him and living at
his home in San Diego. During the entire six-month period that appellant was living with
him, appellant never left the home in the evening.
During the bifurcated portion of the trial, Officer Edgar Hernandez testified that
appellant committed the crimes to benefit the 18th Street gang. He opined appellant also
promoted himself within the gang by instilling fear in the community.
DISCUSSION
I. Sufficiency of the Evidence
“A person is guilty of aggravated mayhem when he or she unlawfully, under
circumstances manifesting extreme indifference to the physical or psychological well-
being of another person, intentionally causes permanent disability or disfigurement of
another human being or deprives a human being of a limb, organ, or member of his or her
body. For purposes of this section, it is not necessary to prove an intent to kill.
Aggravated mayhem is a felony punishable by imprisonment in the state prison for life
with the possibility of parole.” (§ 205.)
Appellant contends that his conviction for aggravated mayhem cannot stand
because there is insufficient evidence showing that he specifically intended to cause
permanent injury to Nunez’s penis. He argues Nunez’s injury was the result of an
indiscriminate attack, citing People v. Sears (1965) 62 Cal.2d 737 (overruled on another
point in People v. Cahill (1993) 5 Cal.4th 478, 494, 509), People v. Anderson (1965) 63
Cal.2d 351, and People v. Lee (1990) 220 Cal.App.3d 320. In Sears, the defendant

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admitted he struck his daughter several times with a steel pipe, lacerating her lip and
nose. This occurred during an attack on his wife, mother-in-law, and brother-in-law. (62
Cal.2d at pp. 743-745.) In Anderson, the victim had 41 wounds over her entire body
from her head to her torso. (63 Cal.2d at p. 356.) In Lee, the defendant punched the
victim in the face three times and kicked him on his body at least twice. (220 Cal.App.3d
at p. 326.) In each of these cases, the court found the defendant lacked the specific intent
to commit mayhem. (Sears, supra, 62 Cal.2d at p. 745, Anderson, supra, 63 Cal.2d at
p. 359, and Lee, supra, 220 Cal.App.3d at p. 326.) We find the cases distinguishable.
When reviewing a case for sufficiency of the evidence, we “consider the evidence
in a light most favorable to the judgment and presume the existence of every fact the trier
could reasonably deduce from the evidence in support of the judgment.” (People v.
Mincey (1992) 2 Cal.4th 408, 432.) Here, the evidence supports a finding that Nunez’s
injury was the result of an attack that was controlled and focused. The uncontroverted
testimony was that appellant deliberately and directly aimed at the area of Nunez’s groin
from a distance of approximately five feet and fired a single shot. Of significance is that
just prior to the shooting, appellant was aiming the gun at Nunez’s chest, whereupon he
lowered the barrel and fired. While appellant contends there is no evidence to suggest
that he was specifically aiming at Nunez’s penis, given the manner in which the shooting
was carried out, substantial evidence supports the jury’s conclusion to the contrary. The
fact finder could reasonably deduce that the defendant’s intent was to disfigure or
permanently disable his victim. (People v. Ferrell (1990) 218 Cal.App.3d 828, 835-836.)
II. Sentencing
Appellant’s trial counsel argued that section 654 required the court to sentence
appellant to concurrent terms because all of the crimes were committed with robbery as
the sole objective. The prosecutor argued that the robbery was completed when the
appellant decided to shoot the victim. Thus, she argued the aggravated mayhem had a
separate objective independent of the robbery. The court agreed, and sentenced appellant
to consecutive terms on all counts. It selected count 2 as the principal term. Appellant

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was sentenced to life with the possibility of parole for the aggravated mayhem and a
consecutive 25 year-to-life term for the section 12022.53, subdivision (d) enhancement.
He was given a life sentence with the possibility of parole for dissuading a witness and a
consecutive three-year term, which the court indicated was the middle term for the
underlying crime, and a four-year term for using a firearm. The court did not impose a
sentence for the infliction of great bodily injury pursuant to section 12022.7. As to the
robbery, he was sentenced to four years and two consecutive 10-year terms for the
firearm use and gang allegation enhancements.
Appellant contends that “[b]ecause the robbery, shooting and threat constituted an
indivisible course of conduct with the single intent to successfully rob Nunez, section 654
prohibited punishment on all three offenses.” Alternatively, he claims that “[e]ven if
section 654 did not prohibit multiple punishment, the trial court erred in imposing
consecutive sentences on the (1) the robbery count because the court was fundamental[ly]
incorrect as to when the robbery was complete and (2) the threat count because the court
failed to give any reason for its decision.” As we explain, the trial court properly
imposed consecutive sentences for the robbery and the aggravated mayhem convictions,
but not for the dissuading of a witness charge.
“The divisibility of a course of conduct depends upon the intent and objective of
the defendant. If all the offenses are incidental to one objective, the defendant may be
punished for any of them, but not for more than one. On the other hand, if the evidence
discloses that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, the trial court may impose
punishment for independent violations committed in pursuit of each objective even
though the violations shared common acts or were parts of an otherwise indivisible
course of conduct. [Citations.] The principal inquiry in each case is whether the
defendant’s criminal intent and objective were single or multiple. Each case must be
determined on its own facts. [Citations.] The question whether the defendant entertained
multiple criminal objectives is one of fact for the trial court, and its findings on this

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question will be upheld on appeal if there is any substantial evidence to support them.
[Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.)
The evidence supports the trial court’s finding that the robbery and the mayhem
had separate objectives. It was established that appellant took money and a cell phone
from Nunez’s cab, and then demanded that Nunez empty his pockets. After Nunez exited
the cab and surrendered his wallet, appellant pointed the gun at him and warned him not
to tell anyone about the robbery. Appellant, who had been pointing the gun at Nunez’s
chest, then lowered the weapon toward Nunez’s groin and fired. Appellant could easily
have left the scene of the robbery before uttering the threat, and since Nunez was out of
the cab, appellant’s escape would have been unhindered. Whether we characterize the
threat and the subsequent shot as acts of gratuitous violence or an attempt to avoid
prosecution, clearly, the acts were carried out with an objective separate from the theft.
“[A] separate act of violence against an unresisting victim or witness, whether gratuitous
or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for
purposes of section 654.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 193,
questioned on another ground in People v. Miles (1996) 43 Cal.App.4th 364, 370, fn. 6.)
As noted, appellant contends that since the robbery was not completed at the time
of either the threat or the shooting, we must conclude that all three crimes were carried
out with the same objective. Not so. While appellant is correct that a robbery may be
considered to be an ongoing crime until the perpetrator reaches a place of temporary
safety, the test for purposes of section 654 is the intent of the perpetrator. “If the trier of
fact determines the crimes have different intents and motives, multiple punishments are
appropriate. This is so notwithstanding that for purposes of the felony-murder rule the
robbery is still considered to be ongoing.” (People v. Nguyen, supra, 204 Cal.App.3d at
p. 193.) The fact that the robbery may not be completed “cannot mean every act a robber
commits before making his getaway is incidental to the robbery.” (In re Jesse F. (1982)
137 Cal.App.3d 164, 171.) Appellant was properly sentenced to consecutive terms for
the robbery and aggravated mayhem convictions.

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We cannot say the same for the sentence imposed for count 3, dissuading a
witness. Appellant correctly points out that the trial court failed to give reasons for
imposing a consecutive sentence for that count. After a review of the record, we cannot
conclude that the threat and the shooting that constituted the aggravated mayhem had
separate objectives. After appellant had taken possession of Nunez’s property, appellant
warned him of the consequences of telling the authorities and almost immediately fired
the shot. There is no evidence to suggest that appellant shot Nunez for any reason other
than that of reinforcing his threat. We therefore stay the sentence for count 3.
Finally, appellant contends that the trial court’s decision to impose consecutive
sentences was unconstitutional in that it was based on a fact not found true by the jury.
Appellant’s opening brief was filed before the United States Supreme Court’s decision in
Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856].
However, he cited the case in his reply brief to preserve the issue for federal review. In
Cunningham, the Supreme Court held that a defendant’s right to a jury trial, as provided
for by the Sixth and Fourteenth Amendments of the federal Constitution, is violated by
the imposition of a prison sentence greater than the statutory maximum based on a fact,
other than a prior conviction, that is not found true by a jury or admitted by a defendant.
(Id. at p. ___ [127 S.Ct. at p. 860].)
Cunningham did not address the constitutionality of a trial court’s decision to
impose consecutive sentences. Blakely v. Washington (2004) 542 U.S. 296, upon which
appellant relies, does not apply to consecutive sentencing. (People v. Black (2005) 35
Cal.4th 1238, 1262, vacated in Black v. California (Feb. 20, 2007, No. 05-6793) ___ U.S.
___ [2007 WL 505809]; People v. Hernandez (2007) 147 Cal.App.4th 1266, 1270-1271.)
Accordingly, appellant’s constitutional rights were not violated when the trial court
imposed consecutive sentences.
DISPOSITION
The consecutive sentence imposed for dissuading a witness (count 3) is stayed
pursuant to section 654. In all other respects, the judgment is affirmed. The trial court is

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directed to prepare a corrected abstract of judgment and forward it to the Department of
Corrections.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P.J.
WILLHITE, J.

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