P. v. Hernandez

Filed 11/16/06 P. v. Hernandez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOEL HERNANDEZ,
Defendant and Appellant.
D047682
(Super. Ct. No. SCN195202)
APPEAL from a judgment of the Superior Court of San Diego County, Richard E.
Mills, Judge. Affirmed.
Joel Hernandez was convicted at a jury trial of evading an officer with reckless
driving (Veh. Code, § 2800.2, subd. (a); count 1) and resisting an officer's performance of
duty (Pen. Code, § 148, subd. (a)(1); count 2; all statutory references will be to the Penal
Code unless specified otherwise). In bifurcated proceedings, the trial court found true an
allegation that Hernandez had a prison prior offense. (§§ 667.5, subd. (b) & 668.) A
total sentence of four years, six months in state prison was imposed: An upper term of

-- 1 of 24 --

2
three years for count 1, a consecutive six-month term on count 2, and a one-year term for
the prison prior. The court did not stay sentence on count 2 under section 654 as the
defense requested.
Hernandez appeals, contending that prejudicial error was committed at trial when
the trial court permitted gang evidence to be introduced in the prosecution's case-in-chief.
(Evid. Code, § 352.) He also argues that no substantial evidence supports the jury's
finding that he was the operator of the vehicle at the time that it was stopped by police,
after a car chase and the abandonment of the vehicle by its passengers.
Hernandez also claims sentencing error on several grounds. First, he argues the
trial court's imposition of the upper term and the consecutive sentence represented an
abuse of discretion, for lack of sufficient proof of aggravating circumstances. Further, he
claims the consecutive sentence for count 2 should instead have been stayed under
section 654. He also argues that even in light of the holding by our Supreme Court in
People v. Black (2005) 35 Cal.4th 1238 (Black), the imposition of the upper term and
consecutive sentences violated his federal constitutional rights under the Sixth and
Fourteenth Amendments and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Under the still-existing authority of Black, supra, we find the convictions and sentence
are supported by the record, and no prejudicial evidentiary error or abuse of discretion
occurred. We affirm.

-- 2 of 24 --

3
BACKGROUND FACTS
A
Pursuit of Truck
At trial, the prosecution brought in evidence showing that on May 21, 2005,
around 12:45 a.m., a citizen living near a 7-11 store called police, complaining about a
gang-related dispute in Escondido. The call included information about two vehicles the
caller said were occupied by "gang types": older ones in a black, full-size pickup truck
and younger ones in a silver compact car. Detective Luis "Rudy" Rudisell of the
Escondido Police Department's gang investigation unit responded to the call, driving his
black and white police cruiser, which was outfitted with a steady red light, flashing lights
in the front and rear, and the city police insignia on both doors. He was wearing a gang
enforcement uniform, including a vest marked with the word "police" and a police badge.
When Detective Rudisell saw the black truck turning north, he started to follow it
and used his vehicle spotlight. The truck made an immediate turn without stopping at a
stop sign, and from about 15-20 feet away, Rudisell saw the driver of the truck, who was
wearing a button-up shirt, and who he later identified as Hernandez. Rudisell turned on
his lights and siren and a three to five mile vehicle chase began through a mainly
commercial area. The driver accelerated, running several red lights and outdistancing
Rudisell's police car. Traffic was light to moderate at the time.
Sergeant Distel, another officer in the vicinity, responded to a broadcast of the
truck's description and took over the primary position in the pursuit, which reached
speeds of up to 70 miles an hour. Rudisell saw that the black truck ran red lights and stop

-- 3 of 24 --

4
signs and went airborne at one point; sparks flew from the pursuing police car as it
crossed a dip in the pavement. Distel testified at trial that such vehicle pursuits can create
dangers to pedestrians, the pursuing officers, the suspect, and other cars.
At the conclusion of a 10-minute chase, leading to a residential area, Distel saw
four or five people leave the truck in a cul-de-sac. He and other officers set up a
boundary and used a helicopter and police dogs to search for the vehicle's occupants for
about 30 to 45 minutes. Hernandez was found hiding on the roof of a nearby residence,
with his shirt off. Another individual, Noe Mendoza, was found hiding at a house
nearby, also shirtless. Police found one of the button-up shirts, similar to the one
Rudisell had seen the driver wearing, on a roof nearby. Detective Rudisell explained he
had been involved in foot pursuits in the past where the suspects removed their shirts to
make identification more difficult. A third person, a female juvenile, was also found
hiding in the area. Police arrested Mendoza for public drunkenness.
Detective Rudisell told Hernandez to come down from the roof and recognized
him as the driver. He also realized he recognized him from 10 to 15 prior contacts, and
mistakenly called Hernandez by his brother's name, "Ivan," as he had recently dealt with
Ivan (who had recently been incarcerated as of that time), such that Ivan's was the first
name that came to mind. At trial, he testified that he knew at the time that he was dealing
with this individual, Hernandez, but he misspoke due to his recent contacts with Ivan.
Hernandez was arrested and police officers searched the truck, finding DMV
forms, a vehicle title and report of sale, stating Hernandez was the owner of the truck.
Two cell phones were also found in the cab of the truck, one on the driver's seat and one

-- 4 of 24 --

5
near the passenger's seat. Detective Rudisell tried out the phones and figured out that the
phone in the driver's seat belonged to Hernandez, either through viewing the phone's
menu and record of calls, or by asking for Hernandez's cell phone number (he was not
sure which).
The next day, Mendoza came to the police station and told Officer Paige Woog
that he was the driver of the black pickup truck that had evaded police the day before.
Woog called Detective Rudisell to explain that Mendoza was at the police station to turn
himself in as the driver of the truck. Detective Rudisell told her to let him go, as he was
sure that Hernandez was the actual driver.
B
Trial Proceedings
At the outset of trial, the court and counsel discussed potential problems with
evidence about gang affiliation, regarding the identity defense to be presented by
Hernandez, through hearsay statements about Mendoza's confession. Mendoza was
unwilling to testify due to Fifth Amendment problems. Also, the prosecutor planned to
introduce evidence that Detective Rudisell was previously acquainted with Hernandez,
and this vehicle chase had occurred after a report of a gang-related incident. The trial
court denied the prosecutor's motion to exclude the hearsay statements. The prosecutor
then rejected a defense offer to stipulate that the uniformed officer in a police car had a
lawful right not only to follow but also to stop the black truck.
Over a continuing objection by defense counsel, the trial court stated that evidence
about gang affiliation would be limited to impeachment evidence of Mendoza and

-- 5 of 24 --

6
evidence about the content of the radio call to which officers responded, resulting in the
arrest. In his opening statement, the prosecutor told the jury that it would hear gang-
related evidence and an effort by a third party to take the blame, but that such evidence
would be offered with regard to the credibility of statements to be introduced. Defense
counsel said in his opening statement that police had arrested the wrong person, and that
Mendoza had admitted to being the driver. The prosecutor then presented testimony from
Detective Rudisell about the report that he responded to that night, about a gang-related
disturbance, and descriptions and photographs of his uniform and police car. Rudisell
also described how he recognized Hernandez from 10-15 prior contacts, and knew of his
brother as well.
In his defense case, Hernandez called Officer Woog to describe how Mendoza told
her the day after the arrest that he did not want the "wrong guy" to go to jail. He told her
he had been in the truck with two of his friends, but no female occupant went along.
When Woog asked him why he fled at the time, Mendoza said he had several traffic
warrants and did not want to go to jail. When Woog called Rudisell to tell him about
Mendoza's admission, he responded that Mendoza was the wrong guy and she should let
him go, which she did. Officer Woog did not prepare a report of the incident at that time,
but did so later at the request of her department.
In rebuttal testimony, the prosecutor called Detective Rudisell as a gang expert.
He explained that as lead investigator of the city's gang unit, he was familiar with the
gangs in Escondido, and that to his knowledge, it was very common for gang members to
take responsibility for crimes of other gang members in an effort to improve their status

-- 6 of 24 --

7
in the gang. He testified Hernandez was a member of the Diablos gang. In response to
questioning by the court, he further gave his opinion that Mendoza belonged to the same
gang, because Mendoza had a numerical tattoo on his upper arm showing an association
with that gang. Before this incident, he was not aware whether Mendoza associated with
the Diablos.
In his testimony, Rudisell explained that he told Officer Woog she did not have to
follow up on Mendoza's statement, because he had seen Hernandez very clearly during
the incident and had no doubt who was the driver of the truck. Also, Mendoza had not
said anything about being the driver the night before when he was apprehended, arrested
for public drunkenness, and interviewed. Detective Rudisell believed Mendoza must
have made such a statement to try to exonerate Hernandez.
The jury returned verdicts of guilty on the two counts charged. Court trial was
held on the prison prior, which Hernandez admitted. A new trial motion, based on the
admission of gang evidence, was denied. Sentence was imposed as outlined above,
including the choice of the upper term based on the lack of mitigating circumstances and
various aggravating circumstances, and other terms as will be further discussed. (Pt. III,
post.) Hernandez appeals the judgment.
DISCUSSION
We first address Hernandez's claims of evidentiary error, then turn to the
sufficiency of the evidence regarding the jury's finding that he was the driver of the truck,
which had attempted to evade officers. Finally, we turn to the sentencing issues.

-- 7 of 24 --

8
I
ADMISSION OF GANG-RELATED EVIDENCE
A
Questions Presented
Hernandez makes several points objecting to the admission of this evidence. He
mainly argues it should not have been allowed in the prosecution's case-in-chief, as it was
irrelevant and unnecessary to the prosecution's efforts to meet its burden to prove the
elements of the charged offenses, evading an officer through reckless driving and
resisting an officer. From the outset of trial, he had objected to such proposed evidence
and had offered to stipulate that the uniformed officers had a lawful or legal right to
follow and stop the truck. He therefore contends that all the references to gang activity,
both as to the reason for the traffic stop and to show Mendoza's potential bias as a
witness, were unnecessary and prejudicial, and his new trial motion should have been
granted accordingly.
To evaluate these arguments that the trial court abused its discretion in admitting
this gang-related evidence, we first state applicable standards of review. Where, as here,
there is no allegation of a gang enhancement (§ 186.22), "it has been recognized that
'evidence of gang membership is potentially prejudicial and should not be admitted if its
probative value is minimal. [Citation.]' [Citation.] Even if gang evidence is relevant, it
may have a highly inflammatory impact on the jury. Thus, 'trial courts should carefully
scrutinize such evidence before admitting it. [Citation.]' [Citations.] [¶] A trial court's
admission of evidence, including gang testimony, is reviewed for abuse of discretion.

-- 8 of 24 --

9
[Citations.] The trial court's ruling will not be disturbed in the absence of a showing it
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a miscarriage of justice. [Citation.]" (People v. Avitia (2005) 127 Cal.App.4th 185,
192-193 (Avitia).)
Evidence of gang membership cannot properly be introduced if it has only
tangential relevance to the issues, or if it is offered solely to prove a defendant's criminal
disposition. (People v. Ruiz (1998) 62 Cal.App.4th 234, 239-240 (Ruiz).) "Such
evidence has been held admissible only when it was logically relevant to some material
issue in the particular prosecution other than as character trait evidence. [Citations.]"
(Id. at p. 240.)
Due to this potential for prejudice from the admission of gang evidence, the courts
will allow it only where the reason for the crime is gang related, or it is relevant to show
motive or bias of a witness, "provided it is not cumulative to other properly admitted, and
less inflammatory, evidence. [Citations.]" (Ruiz, supra, 62 Cal.App.4th 234, 239-240.)
Where such evidence is both relevant and probative of an issue in the case, the courts
must turn to the question of prejudice, such as an appeal to an emotional bias against
defendant, having little to do with the actual issues in the case. (People v. Karis (1988)
46 Cal.3d 612, 638.) "The erroneous admission of gang or other evidence requires
reversal only if it is reasonably probable that appellant would have obtained a more
favorable result had the evidence been excluded. [Citations.]" (Avitia, supra, 127
Cal.App.4th 185, 194.) We next apply these standards with regard to the issues
specifically raised by the charges, evading a peace officer with reckless driving (Veh.

-- 9 of 24 --

10
Code, § 2800.2, subd. (a)) and resisting an officer (§ 148, subd. (a)), to determine
whether the evidence was relevant, probative and not unduly prejudicial regarding the
nature of the pursuit and the identity of the driver.
B
Evidence Regarding Initial Stop
Hernandez claims all the gang-related evidence was unnecessary in light of his
proposed stipulation that the uniformed officers had a lawful or legal right to follow and
stop the truck. He argues this took care of certain elements of the offense, that any
reckless driving took place with awareness of the distinctiveness of the pursuing officer's
uniform and markings of the police vehicle. However, the prosecutor was not required to
accept the stipulation on those undisputed facts, since other elements of the offense
remained to be shown regarding the details of how the pursuit began and continued. (See
Avitia, supra, 127 Cal.App.4th at pp. 192-193.) Specifically, this gang-related evidence
gave substance to the reasons for the police chase and why Hernandez would be likely to
flee from the police. Uniformed police officers in marked cars were responding to a call
of gang activity, arguably giving rise to a motive on the part of the driver to flee when the
spotlight was shined on him and the lights and siren activated. It was not inappropriate to
present evidence about the circumstances under which Sgt. Distel took up the chase when
Rudisell was unable to keep up.
Also, since Rudisell was previously acquainted with Hernandez, as well as his
brother Ivan, through prior professional contacts, and since the defense was mistaken
identity, the prosecutor could legitimately seek to prove all the facts regarding the

-- 10 of 24 --

11
pursuit, identification and apprehension of Hernandez, instead of accepting the stipulation
on that point. These included the facts giving rise to the initial police response to the
truck's activities and how Rudisell was able to identify the driver. The evidence that
Rudisell mistakenly called him "Ivan" is not an impermissible reference to gang
connections, but instead is probative on the identity issues. On balance, the gang
evidence was more probative than prejudicial of material issues in the case with respect
to how the initial stop and apprehension came about, and did not improperly convert this
case into a "gang case" instead of reckless evasion charges.
C
Identity of Driver
Next, we review the admissibility of this evidence with reference to the mistaken
identity defense presented, that Mendoza volunteered to police the next day that he, not
Hernandez, was the driver. The trial court addressed this issue at the outset of trial, and
dealt with the defense objections to gang evidence, fully considering the defense position
that no such evidence could properly be presented in the case-in-chief. In the opening
statement, Hernandez outlined his defense of mistaken identity. Due to this defense to be
shown by Woog's testimony about Mendoza seeking to turn himself in, the trial court had
an adequate basis to anticipate a need to clarify the motive or intent behind Mendoza's
statement to police. The evidence of gang affiliation tends to explain the potential bias of
Mendoza and why he would tell police he was the driver.
Thus, once the prosecutor's hearsay objections to Mendoza's statements were
overruled, the gang-related evidence could properly come in because Mendoza was

-- 11 of 24 --

12
known to be another occupant of the truck at the time Hernandez was arrested, and his
motives for later explaining his presence and role in the incident became relevant. We
disagree with Hernandez that there was sufficient other impeachment evidence of
Mendoza to render the gang-related evidence cumulative or unduly prejudicial. That
other available evidence (that Rudisell identified Hernandez and not Mendoza as the
driver, and the arrest of Mendoza that night without any such claim being made that he
was the driver) was not so strong that the additional information about gang affiliation
became cumulative or unduly prejudicial, rather than mainly probative of the identity
issue. In light of the eyewitness identification pinpointing Hernandez as the driver, it was
appropriate for all the circumstances about Mendoza's later confession to be considered
by the jury.
Further, the rebuttal evidence from Rudisell as a gang expert was also properly
allowed. Even if we assume the gang evidence should not properly have been admitted
until the rebuttal stage, we still cannot conclude its prejudicial effect substantially
outweighed its probative value. Any prejudicial effect was minimal in light of the nature
of the defense presented, that Mendoza claimed to be the driver. After defense counsel
argued in closing to the jury that Hernandez was being tried merely for being a gang
member, the prosecutor responded in rebuttal that the gang evidence had been brought in
solely to show Mendoza had a motive to lie.
In conclusion, the rulings that admitted this evidence did not represent an abuse of
the court's discretion. In any case, there was sufficient evidence absent the gang-related
testimony to support the jury finding that Hernandez was the driver and committed the

-- 12 of 24 --

13
reckless evasion offense. It is not reasonably probable that a more favorable result would
have been reached without the challenged evidence. (Avitia, supra, 127 Cal.App.4th at
p. 194.)
II
SUFFICIENCY OF EVIDENCE
In reviewing a challenge to the sufficiency of the evidence to support a conviction,
we apply well-settled rules. " 'An appellate court reviews the record in the light most
favorable to the jury's determination' [citation], and determines whether substantial
evidence supports the finding [citation]. ' "Evidence is substantial if it is reasonable,
credible and of solid value." ' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 425.)
To prove Hernandez was guilty of the conduct forbidden by Vehicle Code section
2800.2, subdivision (a), fleeing or attempting to elude a pursuing peace officer, by means
of driving "in a willful or wanton disregard for the safety of persons or property," the
prosecution was required to show he was the person driving the vehicle. The evidence on
this point mainly consisted of the arresting officer's eyewitness identification of him as
the driver, along with the location in the abandoned vehicle of papers identifying
Hernandez as the owner. Also, one of the two cell phones found in the vehicle either had
the number identified by Hernandez as his own, or showed calls made by him to
Mendoza.
Hernandez disputed the weight of this evidence, by showing that the arresting
officer originally saw him for only five seconds under a spotlight in dark conditions, with
a shirt on, and later called him by his brother's name. Also, the shirt found on the roof of

-- 13 of 24 --

14
the house where Hernandez was found, shirtless, was left at the scene and Rudisell was
not sure about its color. Four or five people left the truck when it was abandoned, but
only three were found, and no physical evidence such as fingerprints was produced to
link Hernandez to the truck.
These objections are unpersuasive. Even in light of the challenges to the showing
about the driver's identity and the officer's credibility, there is adequate evidence to
support the finding Hernandez was the driver of his own truck that was involved in the
incident. The officer was familiar with Hernandez from 10-15 prior contacts and, after
seeing him up close, positively identified him as the driver. The driver had been wearing
a button-up shirt that was similar to one later found nearby. Documents found in the
truck showed that it belonged to Hernandez, as did one of the cell phones.
Police later rejected an effort by Mendoza to claim responsibility for being the
driver, based on the arresting officer's identification of Hernandez as the driver, and
Mendoza's association with the same gang as Hernandez. Mendoza said he had not made
this claim on the night of the incident because he did not want to be arrested, but actually
he was arrested that night, which further undermined his credibility in the confession. In
conclusion, the evidence substantially supports the jury's finding that contrary to his
asserted defense, it was Hernandez who was the driver of the truck who was evading a
peace officer with reckless driving. (Veh. Code, § 2800.2, subd. (a).)

-- 14 of 24 --

15
III
SENTENCING ISSUES
A
On appeal, Hernandez contends the sentence represents an abuse of discretion in
its imposition of the upper term and consecutive sentences because the evidence did not
support the facts upon which the decision was based. California Rules of Court, rule
4.420(b) requires proof by a preponderance of the evidence of the circumstances in
aggravation of sentence, and allows the selection of the upper term only if those
circumstances in aggravation outweigh the circumstances in mitigation. (All further rule
references are to the Cal. Rules of Court.) He claims the aggravating circumstances
relied on by the trial court were mainly speculative and were not based on the evidence at
trial.
At sentencing, the trial court noted that it had read the probation report, which
found no mitigating circumstances to discuss, but set forth a number of proposed
aggravating circumstances. The court then enumerated its reasons for rejecting the
recommendation of the probation officer that the midterm was appropriate for the
reckless evasion offense, and for choosing the upper term. These included the lack of
any specified mitigating circumstances, such that the trial judge decided that "ipso facto"
the various aggravating circumstances would control. The court stated it was primarily
relying on rule 4.421(b) regarding the defendant's background, saying that it provided an
overwhelmingly persuasive reason why he should get the upper term, due to repeated
violent conduct dangerous to society. The court generally referred to the nature of his

-- 15 of 24 --

16
past offenses, his continued association with gang members, and the reckless driving
giving rise to these offenses. The court also noted the existence of aggravating factors
under rule 4.421(a), by mentioning the lack of regard for public safety, the leadership of
the defendant as the driver of his own car, his lack of remorse, and the likelihood that he
had something to do with Mendoza's false statement seeking to take responsibility for the
offense. (Rule 4.421(a)(1), (4) & (6).)
To impose the upper term, the court relied on the factors identified in rule
4.421(b)(2), Hernandez's prior convictions were numerous; (b)(3), his prior prison term;
(b)(4), he was on parole at the time he committed the charged offenses; and (b)(5), his
past performance on probation and parole had been unsatisfactory. The one-year prison
prior sentence was added on consecutively.
With respect to the decision to run the count 2 sentence consecutively, rather than
concurrently, the trial court expressly relied on rule 4.421(a) (rather than rule 4.421(b),
which was used to select the upper term). (Rule 4.424.) The criteria set forth in rule
4.421(a) for running these terms consecutively included the facts shown about the
circumstances of the crime, which created potential bodily harm to members of the public
due to the reckless driving. This factor was evaluated by the court as showing a high
degree of callousness. (Rule 4.421(a).)
The court then analyzed the misdemeanor offense of resisting an officer's
performance of duty (§ 148, subd. (a)(1)) as representing a separate offense of violence
committed against different victims. The court recognized that it could be argued that the
public in general was the victim of both charged offenses, but decided instead that the

-- 16 of 24 --

17
victims of the Vehicle Code offense were the fellow motorists, pedestrians, and police
affected by the pursuit. Regarding the charge of resisting arrest, the second set of victims
was deemed to be the neighbors in the location where the truck was abandoned and
where police officers with guns had to search for the truck's occupants on the roofs of
houses. Contrary to the contention on appeal that the evidence did not support the
separate nature of these factors, the court's analysis is well-founded in the record.
Hernandez further argues his sentence was tainted by other factors referred to by
the court at sentencing, that are not strongly supported by the record. For example, there
were no injuries or crashes caused by the pursuit, arguably reducing to insignificance the
threat of great bodily harm represented by his activities. Also, the record was
inconclusive about whether the juvenile found hiding at the scene was involved in the
pursuit or how she was influenced by Hernandez's leadership and senior status among the
truck's occupants. The court also referred to "gang professionalism" all throughout the
testimony. (Rule 4.421(a)(8).) However, it was unclear how the incident actually arose
in furtherance of street gang activity, with respect to the two missing occupants who fled,
or in other respects. Finally, Hernandez complains that the trial court's inference that the
lack of mitigating factors meant that the aggravating factors should control is not a
logical one.
We disagree. Despite the presence of some additional and arguably inapplicable
factors, such as the involvement of the mysterious female juvenile, the evidence strongly
supports the remaining aggravating factors on which the trial court based its decision to
impose the upper term and consecutive sentences. As shown by the sentencing transcript

-- 17 of 24 --

18
and the probation report, and as outlined above, adequate reasons existed and were given
under the applicable rules of court for the selection of the upper term and consecutive
sentences. The presence of alternative other considerations does not demonstrate a lack
of proof by a preponderance of the evidence of the relevant factors, and there was no
error committed with regard to the bases for this sentencing choice. (Rule 4.420(b).)
B
Blakely
At court trial on the prison prior, Hernandez admitted to its terms. At the
sentencing hearing, he did not seek trial by jury of any sentencing circumstances not
included in the verdict. However, he now contends there was Blakely error, involving the
right to jury trial, because the court's decisions to impose the upper term, and the
consecutive sentences for both the prison prior and the count 2 offense, were based on
facts not submitted to the jury. (Blakely, supra, 542 U.S. 296.)
This argument raises federal constitutional issues regarding rights to jury trial and
proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments and
Blakely, supra, 542 U.S. 296. The People maintain that any claim of Blakely error was
forfeited when Hernandez and his counsel did not object below on such grounds, even
though the Blakely case was filed before the crimes, trial and sentencing occurred in this
case. We agree any Blakely error is waived.
The United States Supreme Court in Blakely, supra, 542 U.S. 296, held that "a
defendant in a criminal case is entitled to a jury trial on any fact that increases the
maximum sentence to which the defendant is exposed for a particular offense, unless that

-- 18 of 24 --

19
fact has been admitted by the defendant or is based on the defendant's prior convictions."
(Black, supra, 35 Cal.4th at p. 1246.) Blakely was decided June 24, 2004, before the
August 2005 trial and the October 2005 sentencing in this case. At the time of
sentencing, Hernandez did not object on Blakely grounds nor inform the court he would
object to any aggravating factors not included in the verdict. As mentioned, Hernandez
specifically waived his right to a jury trial on his prior conviction allegations.
Generally, issues regarding discretionary sentencing choices that were not raised
below are subject to forfeiture. (People v. Scott (1994) 9 Cal.4th 331, 351-352.) We
therefore conclude any Blakely issue was forfeited by Hernandez's failure to raise it in the
trial court. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) In his opening brief,
he states that he is nevertheless raising the issue at this time to preserve it for federal
review.
In any event, our Supreme Court in Black, supra, 35 Cal.4th 1238, found the
reasoning in Blakely, supra, 542 U.S. 296, as well as that in United States v. Booker
(2005) 543 U.S. 220 (Booker), to be inapplicable to the California determinate sentencing
law (DSL) because "the judicial factfinding that occurs when a judge exercises discretion
to impose an upper term sentence or consecutive terms under California law does not
implicate a defendant's Sixth Amendment right to a jury trial." (Black, supra, at p. 1244.)
Rather, the DSL "authorize[s] a sentencing court to engage in the type of factfinding that
traditionally has been incident to the judge's selection of an appropriate sentence within a
statutorily prescribed sentencing range." (Id. at p. 1254.)

-- 19 of 24 --

20
Specifically with regard to consecutive terms, the court in Black stated "When a
judge considers the circumstances of each offense and the defendant's criminal history in
determining whether the sentences are to be served concurrently or consecutively, he or
she cannot be said to have usurped the jury's historical role. Permitting a judge to make
any factual findings related to the choice between concurrent or consecutive sentences
does not create an opportunity for legislatures to eliminate the right to a jury trial on
elements of the offenses. Nothing in the high court's decisions in Apprendi [v. New
Jersey (2000) 530 U.S. 466 (Apprendi)], Blakely, or Booker suggests that they apply to
factual determinations that do not serve as the 'functional equivalent' of an element of a
crime." (Black, supra, 35 Cal.4th at p. 1263.)
Hernandez's arguments challenging the sentencing choices of upper and
consecutive terms regarding his prison sentence have thus been resolved against him by
the holding in Black. We recognize the reasoning in Black with regard to upper term
sentences may be short-lived in light of the United States Supreme Court's grant of
certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert.
granted Feb. 21, 2006, No. 05-6551, sub. nom. Cunningham v. California (2006) ___
U.S. ___ [126 S.Ct. 1672, 164 L.Ed.2d 395]; [issues argued in Oct. 2006 were whether
the current DSL in California, allowing judges to impose enhanced sentences based on
their determination of facts not found by the jury, violates the Sixth Amendment].)
At this time, however, we are required to follow Black's holding. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, even assuming (1)
Hernandez's claim is not waived, (2) the holding regarding the imposition of upper terms

-- 20 of 24 --

21
in Black, supra, 35 Cal.4th 1238 is eventually overturned, and (3) the trial court here
erroneously relied on the aggravating factors, we would find any Blakely error in this
case harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24.)
To explain: The trial court imposed an upper term on count 1 after having found
no mitigating factors, which were then presumptively outweighed by numerous
aggravating factors. Chiefly, the court relied on rule 4.421(b), the defendant's
background, saying that it provided overwhelming evidence that he should get the upper
term, due to repeated violent conduct dangerous to society. These factors included rule
4.421(b)(2), Hernandez's prior convictions were numerous; (b)(4), he was on parole at the
time he committed the charged offenses; and (b)(5), his past performance on probation
and parole had been unsatisfactory.
These factors fall within the prior conviction exception preserved by Blakely,
supra, 542 U.S. 296 and Apprendi, supra, 530 U.S. 466. (Cf. People v. Thomas (2001)
91 Cal.App.4th 212, 216-223 [prior prison term enhancements are within prior conviction
exception of Almendarez-Torres v. United States (1998) 523 U.S. 224].) Because any
one of these proper factors in aggravation is sufficient to support imposition of an upper
term (People v. Osband (1996) 13 Cal.4th 622, 728), and the court expressly rejected an
available leniency option when it imposed consecutive terms, the court's reliance on other
factors was harmless beyond a reasonable doubt. A reversal of the sentence is not
required when there is no likelihood a more favorable term would have been imposed in
the absence of the error. (Ibid.)

-- 21 of 24 --

22
C
With respect to the section 654 issue, Hernandez objects to the court's
determination that the misdemeanor conviction of resisting an officer's performance of
duty (§ 148, subd. (a)(1)) should represent a separately punishable offense of violence
committed against different victims, as opposed to the Vehicle Code offense. He seeks
reversal to require the trial court to stay the sentence on the second count, contending
both crimes were part of an indivisible course of conduct with a single criminal objective.
(People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209; rule 4.425.)
"Whether multiple convictions are part of an indivisible transaction is primarily a
question of fact. [Citation.] We review such a finding under the substantial evidence test
[citation]; we consider the evidence in the light most favorable to respondent and
presume the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]" (People v. Martin (2005) 133 Cal.App.4th 776, 781 (Martin).)
Under section 654, the courts may not impose multiple punishments for a course
of conduct that constitutes an indivisible transaction, but violates more than a single
statute. (Martin, supra, 133 Cal.App.4th 776, 780-782.) " 'If all the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.' [Citation.] If, on the other hand, 'the [defendant] entertained
multiple criminal objectives which were independent of and not merely incidental to each
other, he may be punished 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.' [Citation.] Section 654 turns on the objective in violating

-- 22 of 24 --

23
both provisions, not the Legislature's purpose in enacting them. [Citation.]" (Id. at p.
781.)
When interpreting section 654, the courts must apply its "multiple-victim
exception," which allows separate conviction and punishment for each crime of violence
committed against a different victim, "even though a defendant entertains only one
principal objective during an indivisible course of conduct." (Martin, supra, 133
Cal.App.4th 776, 780.) Here, the sentencing court declined to accept Hernandez's
argument that the public in general was the victim of both charged offenses. Instead, the
court imposed a separate punishment, a consecutive term for the resisting arrest charge,
on the grounds that its victims were the neighbors in the location where the truck was
abandoned, because police officers with guns had to search for the truck's occupants on
the roofs of houses, creating a risk of harm. (§ 148, subd. (a)(1).) The court
distinguished this group from the victims of the Vehicle Code offense (reckless driving in
evading police pursuit), i.e., the motorists and police directly or potentially affected by
the high-speed chase. There were separate criminal objectives within the overall course
of conduct.
We agree with this analysis of the record. There were two distinct evasions of
police, the car chase and the separate effort to evade police by hiding on the roof of a
nearby building. Although these events were related, the trial court could reasonably find
they were separate efforts to avoid arrest. Substantial evidence supports the
determination that these multiple crimes were not part of an indivisible transaction. (Rule
4.425(a).) Separate punishments were properly imposed for these two convictions

-- 23 of 24 --

24
because they involved separate criminal acts and separate victims. The judgment must be
affirmed in full.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
I CONCUR:
IRION, J.
I CONCUR IN THE RESULT:
McDONALD, J.

-- 24 of 24 --