P. v. Hernandez

Filed 5/21/07 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
JIMMY HERNANDEZ,
Defendant and Appellant.
B192616
(Los Angeles County
Super. Ct. No. LA047375)
APPEAL from a judgment of the Superior Court for Los Angeles County,
Martin L. Herscovitz, Judge. Affirmed.
Robert M. Sweet, 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, Assistant Attorney General, Lance E.
Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.

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Defendant Jimmy Hernandez appeals from a judgment sentencing him to 27
years in state prison after a jury found him guilty of two counts of second degree
robbery (Pen. Code,1
§ 211) and one count of possession of a firearm by a felon
(§ 12021, subd. (a)(1)), and found to be true allegations that defendant personally
discharged a firearm in the commission of the robberies (§ 12022.53, subd. (c)).
On appeal, defendant contends there was insufficient evidence to support the jury’s
finding that he personally discharged a firearm. He also contends the trial court
improperly imposed the upper term sentence based upon facts not found by the
jury. We affirm the judgment.
BACKGROUND
Jany and Rundy Rann own the Golden Donuts doughnut shop in North
Hollywood. On October 28, 2004, Jany and Rundy2
were the only people in the
shop when it opened for business at 5:00 a.m.; Jany was behind the counter and
Rundy was in the back, making doughnuts. Two men came into the shop shortly
after it opened, followed a minute later by another man. The first two men told the
third man to order first, but he insisted that they order first. They asked Jany the
price for a dozen doughnuts, and ordered two hot chocolates and a doughnut. Jany
gave the men their order and they went outside and stood to the side of the door.
The other man bought a coffee and left. The first two men then came back into the
shop and ordered a dozen doughnuts. As Jany turned around to get a box, one of
the men jumped over the counter, pulled a gun from his shirt and pointed it at
1
Further statutory references are to the Penal Code unless otherwise indicated.
2
We refer to Jany and Rundy Rann by their first names for ease of reference, and
not out of disrespect.

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Rundy’s head. The other man, who remained on the customer side of the counter,
pointed a gun at Jany.
The man pointing the gun at Rundy brought Rundy to the cash register,
saying he wanted the money. Although he told Rundy to lie face down in front of
the cash register, Rundy instead opened the register, pulled out the cash drawer,
and put it on the counter. While the man was distracted by the cash drawer, Rundy
walked to the back room and out the side exit door. Jany also walked toward the
back of the shop, followed by one of the men. As they were walking, the man
noticed a camera and VCR, and told Jany he wanted the tape. Jany was unable to
get the tape out of the machine, so the man tried to get it out. While he was
distracted with that, Jany walked into the back room and out the side door.
After Rundy left the shop through the side exit, he hid behind a newsstand
along the sidewalk, and then moved to a position behind a telephone booth. From
that position he could see the men inside, trying to get something from the shop.
After a little while, the men exited the shop through the front door. One of them
pointed a gun at Rundy. Rundy, who had a .32 caliber Barretta in his pocket,
thought the man would kill him, so he fired his weapon at him. The man fired
back. At one point, the man who was firing at Rundy fell to his right knee. The
other man, who was not shooting at Rundy because he was carrying something in
his hands (probably the VCR, which was missing when the Ranns returned to the
shop), helped the first man get up and limp off.
After the men left, Rundy and Jany returned to the shop and called the
police. Rundy and Jany gave descriptions of the robbers to the police, and Rundy
told them that he was not sure if he hit the man who was shooting at him, but he
did see him falling and limping.
In the meantime, at around 6:50 a.m., Officer Ralph Camarillo was called to
Los Angeles County/USC Medical Center to take a report for a shooting

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investigation. Camarillo interviewed defendant, who had a gunshot wound to his
right shin or calf. Defendant gave Camarillo a false name and address, and told
him that he had been the victim of a drive-by shooting while he was standing on
the corner of Sixth Street and Alvarado waiting for a taxicab. Camarillo went to
that location at around 8:00 a.m. to look for evidence of a shooting, such as blood
or casings, but did not find anything.
One of the detectives assigned to the Golden Donuts case, Detective
Christina Frus, put out an alert to area hospitals between 8:00 a.m. and 9:00 a.m.,
based upon the Ranns’ descriptions of the suspects, notifying the hospitals that the
police were looking for a male Hispanic, approximately five foot eight inches tall,
150 pounds, with a gunshot wound to the leg. Frus received one response to the
alert, from Los Angeles County/USC Medical Center. She and her partner went to
the hospital and interviewed defendant, who matched the description of one of the
robbers and had a gunshot wound through his right calf. Defendant initially gave
the detectives a false name, but later admitted his true name. He gave the
detectives the same general description of the events surrounding the shooting that
he had given to Officer Camarillo, although he gave the detectives two different
versions of how he got to the hospital -- at first he said that a White man he did not
know drove him to the hospital, but later he said that two Hispanic men drove
him.3
Frus went to defendant’s residence later that same day and found small
amounts of what appeared to be fresh blood on the staircase leading to defendant’s
apartment. The blood was tested and determined to be defendant’s. The following
day, Frus showed each of the Ranns a photo lineup that included defendant’s
3
He had told Officer Camarillo that a person he did not know drove him to the
hospital. At trial, Camarillo testified that he had no further description of that person.

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picture. Jany identified defendant as one of the robbers. Rundy selected two
photographs, one of which was of defendant, and said that both photographs
resembled one of the robbers. Neither Jany nor Rundy was able to identify
defendant in a live line up that took place six months later, although Jany identified
defendant at trial as the man who held a gun to Rundy’s head during the robbery.
Rundy testified at trial that the robber looked like defendant, but he was not sure if
defendant was the robber.
The day after the robbery, Officer Michael Lopez located a Toyota 4Runner
that Lopez had seen defendant driving on prior occasions. The 4Runner was
parked at the curb in front of the home of defendant’s girlfriend’s parents. There
was blood, which later was determined to be defendant’s, on the driver’s side
floorboard beneath the gas pedal, the driver’s side of the center console, the
driver’s seat, the exterior below the driver’s side door, and the license plate. As
Lopez was impounding the car, defendant’s girlfriend, Vilma Pineda, came out of
her parents’ house. In response to Lopez’s questioning, Pineda told him that she
and her friend Maggie had picked up the car at Pineda’s residence the previous
night (Oct. 28), and Maggie drove it to Pineda’s parents’ house while Pineda
followed her. She said the car had not been driven since then.
Defendant was charged by information with three counts: second degree
robbery of Rundy (§ 211); second degree robbery of Jany (§ 211); and possession
of a firearm by a felon (§ 12021, subd. (a)(1)). The information also alleged
firearm enhancements under section 12022, subdivision (a)(1), and section
12022.53, subdivisions (b) and (c), and three prior prison term enhancements

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(§ 667.5, subd. (b)).4
Defendant was tried before a jury. After just over six hours
of deliberations, the jury returned guilty verdicts on all three counts and found true
the section 12022, subdivision (a)(1) and section 12022.53, subdivision (b)
allegations, but was deadlocked on the section 12022.53, subdivision (c) firearm
discharge allegation. The trial court asked the jurors if it would help them if they
had a readback of testimony or a re-reading of the firearm discharge instruction,
and one of the jurors said that it might have an effect. The jury ultimately asked
for a readback of all of Rundy’s testimony about what happened when he was
outside the shop and the robbers came out. Twenty minutes after the readback, the
jury found the section 12022.53, subdivision (c) allegation to be true.
In a bifurcated trial, the trial court found two of the prior prison term
allegations to be true. The court imposed a 27-year sentence computed as follows:
the upper term of five years for the first robbery count, plus 20 years for the
firearm discharge enhancement, plus two one-year prior prison term
enhancements; the upper term of five years for the second robbery count, plus 20
years for the firearm discharge enhancement, to run concurrent with the sentence
on the first count; the upper term of three years on the firearm possession count,
stayed under section 654. Defendant appeals from the judgment.
DISCUSSION
A. Firearm Discharge Finding
Defendant does not challenge the jury’s verdicts finding defendant guilty of
robbing the Ranns at the Golden Donut shop. Thus, he concedes that he was one
4
Although the information also included Three Strikes allegations, the prosecutor
informed the trial court that the People were not proceeding with those allegations
because defendant was a juvenile at the time of the prior violent or serious felony.

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of the two robbers. He contends, however, there was insufficient evidence to
support the jury’s finding that he personally discharged a firearm because Rundy
testified that he could not tell which robber shot at him and that he did not know if
he hit the man who was shooting at him. Defendant’s contention fails.
“In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence --
evidence that is reasonable, credible and of solid value -- such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence. [Citations.] The same
standard applies when the conviction rests primarily on circumstantial evidence.
[Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard
also applies to challenges to the sufficiency of the evidence to support findings on
enhancement allegations. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
Defendant is correct that Rundy testified that he could not see the faces of
the robbers when they were outside and that he did not know which of the men was
the one who shot at him. But while Rundy testified that he did not know whether
he hit the man who was shooting at him, he testified that he saw that man move in
a way that made him think he had hit him: the man fell to his right knee, was
helped to his feet by the other man (who did not shoot at him), and limped off. He
also told the police who responded to his 911 call that he “did not know for sure”
whether he had hit the man shooting at him, but that he saw that man “kind of
limping, walking, and falling.”
The jury could reasonably deduce from Rundy’s testimony that the robber
who shot at Rundy was hit in the right leg by one of Rundy’s shots. That
deduction, combined with Jany’s identification of defendant as one of the robbers

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and evidence that defendant was treated for a gunshot wound to his right leg less
than two hours after the robbery, is substantial evidence from which a reasonable
jury could conclude beyond a reasonable doubt that defendant personally
discharged a firearm in the commission of the robbery.
B. Cunningham Error
The trial court sentenced defendant to the upper term on all counts based on
several aggravating factors, including factors related to the crimes, factors related
to defendant’s recidivism, and the fact that defendant was convicted of crimes for
which consecutive sentences could have been imposed.5
Defendant contends the
trial court violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]
(Cunningham) by relying on facts not found by a jury when it imposed those upper
term sentences.
In Cunningham, the Supreme Court held that California’s determinate
sentencing law violates a defendant’s right to jury trial protected by the Sixth and
Fourteenth Amendments to the United States Constitution to the extent the law
“allows a judge to impose a sentence above the statutory maximum [which the
Court found was the mid-term sentence] based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.” (Cunningham,
supra, 127 S.Ct. at p. 860; see also id. at p. 868.) The failure to submit a
sentencing factor to the jury, however, is not a structural error requiring reversal
5
The crime-related factors cited by the trial court were the vulnerability of the
victims, and the planning and sophistication of the crime. The recidivism factors the
court cited were (1) defendant’s record indicates a continuing pattern of conduct with
escalating violence, (2) his past performance on probation was unsatisfactory, and (3) he
was on parole or just off parole when he committed the crimes in this case.

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per se, but is instead subject to harmless error analysis. (Washington v. Recuenco
(2006) 548 U.S. ____ [126 S.Ct. 2546].)
Although the trial court in this case imposed the upper term based on facts
not found by the jury, we hold the error was harmless under any standard. At the
time the court sentenced defendant, the California Supreme Court had decided
People v. Black (2005) 35 Cal.4th 1238, and the United States Supreme Court had
granted certiorari but not yet decided Cunningham. Acknowledging the
uncertainty of the law in light of the pending Cunningham case, the trial court
stated for the record that the aggravating factors other than the factors related to the
crime were sufficient to support the upper term sentence: “Because of the present
state of the law and pending action before the United States Supreme Court in that
regard, I’m -- I’m going to say for the record that the factors in aggravation
regarding the crimes are there. But the other factors are sufficient to support the
high term without reference to the following aggravating factors, and that is the --
the vulnerability of the victims. . . . [¶] Also, the planning and sophistication [of
the crime].” The court then discussed the recidivism factors, which the court found
warranted imposition of the upper term.
Defendant contends, however, that the trial court’s reliance on recidivism
factors also violates Cunningham. He argues that the “prior conviction” exception
in Cunningham, supra, 127 S.Ct. at page 868, does not apply to recidivism factors
other than the simple fact of a prior conviction.6
We disagree.7
6
Defendant does not address the last factor cited by the trial court -- that defendant
was subject to consecutive sentences but received concurrent sentences. (Cal. Rules of
Court, rule 4.421(a)(7).) There is no Cunningham issue as to that factor, however,
because the jury found defendant guilty of two separate violent crimes, i.e., the robberies
of Jany and Rundy, and thus was subject to consecutive sentences. (People v. Deloza
(1998) 18 Cal.4th 585, 592.)

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In People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court
addressed whether a defendant had a federal constitutional right to have the jury
rather than the court determine whether a prior conviction in another state subjects
the defendant to an increased sentence when, due to differences between the states’
laws, the record of the prior proceedings had to be examined to determine whether
the prior conviction qualified as a serious felony. Concluding there was no such
right, the Supreme Court cited the United States Supreme Court’s discussion in
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) distinguishing between
recidivist conduct and other factors used to enhance punishment: “(1) recidivism
traditionally has been used by sentencing courts to increase the length of an
offender’s sentence, (2) recidivism does not relate to the commission of the
charged offense, and (3) prior convictions result from proceedings that include
substantial protections.” (People v. McGee, supra, 38 Cal.4th at p. 698.) Our
Supreme Court also noted that numerous courts examining the issue have
concluded that the prior conviction exception to the right to a jury determination of
facts used to increase a sentence applies broadly to recidivism enhancements. (Id.
at pp. 700-706; see also People v. Thomas (2001) 91 Cal.App.4th 212, 221 [“courts
have held that no jury trial right exists on matters involving the more broadly
framed issue of ‘recidivism’”].) We find the reasoning of those cases persuasive.
Because the trial court in this case specifically found that the recidivism
factors were sufficient to impose the upper term, we hold that the court’s
consideration of factors related to the crime was harmless error under any standard.
7
We note that this issue -- whether recidivism factors found by the court rather than
by a jury violates Cunningham -- is pending before the California Supreme Court in
People v. Towne, review granted July 14, 2004, S125677. (Req. for additional briefing,
S.Ct. dock. entry of Feb. 7, 2007.)

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(People v. Watson (1956) 46 Cal.2d 818, 836 [state law error]; Chapman v.
California (1967) 386 U.S. 18 [federal constitutional error].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.

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