P. v. Hernandez

Filed 11/6/06 P. v. Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MAURO HERNANDEZ, JR.,
Defendant and Appellant.
F048747
(Super. Ct. No. 1023344)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. John G.
Whiteside, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd
G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.

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INTRODUCTION
Appellant, Mauro Hernandez, Jr., was found guilty after a jury trial of voluntary
manslaughter (Pen. Code, § 192, subd. (a)).1 Appellant had earlier pled nolo contendere
to one count of battery causing great bodily injury (§§ 242 & 243, subd. (d)). The jury
found true an allegation appellant personally used a dangerous or deadly weapon
(§§ 12022, subd. (b)). In a bifurcated proceeding, the trial court found true an allegation
that Hernandez committed a prior serious felony within the meaning of the three strikes
law. The court sentenced appellant to the upper term of 11 years for voluntary
manslaughter, which it doubled to 22 years pursuant to the three strikes law. The court
added a consecutive term of one year for the weapon enhancement.
Appellant appealed in case No. F043763 challenging the sufficiency of the
evidence of the prior conviction.2 We affirmed appellant’s conviction for manslaughter
and the jury’s true finding on the arming enhancement. We remanded the case giving the
prosecutor 30 days to give notice of an intent to seek retrial of the prior conviction. In
the concluding sentence of our disposition, we stated that if the prosecutor fails to give
such notice, “the court shall resentence Hernandez without reference to the strike
allegation.”
The prosecutor did not provide notice of intent to seek retrial of the truth of the
prior conviction. On June 21, 2005, defense counsel filed a brief challenging an upper
term sentence based on Blakely v. Washington (2004) 542 U.S. 296 (Blakely). The
motion further challenged some of the aggravating factors used by the trial court in the
original sentencing proceeding as being an improper dual use of facts. In a brief
resentencing hearing, defense counsel inquired as to whether the trial court had
considered the Blakely issue. The court responded affirmatively. The parties made no
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 We grant appellant’s motion to take judicial notice of the record in People v.
Hernandez (Dec. 18, 2004, F043763 [nonpub. opn.]) (Evid. Code, §§ 452, 459).

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other arguments. The court stated the prior conviction had been vacated by this court and
“the remaining sentence as modified stands as originally pronounced.” The court
imposed the upper term of 11 years plus a consecutive term of one year for a total prison
term of 12 years.
On appeal, appellant raises two issues. First, the aggravating factors relied upon
by the trial court were based on an improper dual use of facts. Respondent contends this
issue has been waived because appellant failed to raise it on the first appeal. Second,
appellant argues the trial court erred in sentencing him to the upper term in violation of
Blakely.
UPPER TERM SENTENCE
Appellant contends the dual use of facts prohibition in sentencing applies to the
trial court’s findings that appellant caused great bodily harm to the victim and appellant
used a weapon in the commission of the crime. Appellant argues voluntary manslaughter
necessarily caused harm to the victim and that the jury’s true finding on the use of a
weapon meant the trial court could not use that factor as an aggravating factor.
First Sentencing Hearing
The probation report for the original sentencing hearing noted three factors in
aggravation.3 During the sentencing hearing on July 21, 2003, defense counsel argued
that aggravating factors one and two were essentially the same factor and should not be
used by the trial court in choosing an aggravated term. Counsel did not argue, however,
that these factors constituted a dual use of facts. Defense counsel further argued that the
victim initiated the altercation with appellant (Cal. Rules of Court, rule 4.423(a)(2)) and
appellant suffered from a mental illness which mitigated the degree of his culpability
(Cal. Rules of Court, rule 4.423(b)(2)).
3 The three factors were: (1) the crime involved great violence (Cal. Rules of Court,
rule 4.421(a)(1)); (2) the defendant engaged in violent conduct which indicates a serious
danger to society (Cal. Rules of Court, rule 4.421(b)(1)); and (3) the defendant was on
probation when the crime was committed (Cal. Rules of Court, rule 4.421(a)(4)). The
probation officer listed no factors in mitigation.

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The trial court found four aggravating factors applicable: (1) the crime involved
great violence (Cal. Rules of Court, rule 4.421(a)(1)); (2) the defendant engaged in
violent conduct which indicates a serious danger to society (Cal. Rules of Court, rule
4.421(b)(1)); (3) the defendant was on probation when the crime was committed (Cal.
Rules of Court, rule 4.421(a)(4)); and (4) the appellant was armed with or used a weapon
when he committed the offense (Cal. Rules of Court, rule 4.421(a)(2)). The fourth factor
applied by the trial court was an additional factor not set forth in the probation report.
The court noted appellant had a prior history of violence. The court observed that
the victim did not die from a single stab wound, but from multiple stab wounds. Most of
these were apparently to the head and neck. The court found appellant’s mental
condition to be a mitigating factor, but noted appellant had already received consideration
for this factor when the jury reduced the original allegation of first degree murder to
voluntary manslaughter. The court explained that to “some extent” the victim initiated or
provoked the incident, but the court stated the victim only verbally teased the appellant.
The court found the factors in aggravation outweighed the factors in mitigation and
imposed the upper term.
It was not until the second sentencing hearing that defense counsel discussed the
issue of the dual use of facts in imposing the upper term.
Waiver
Respondent argues appellant cannot challenge the trial court’s dual use of facts to
justify the upper term because appellant failed to raise this issue on his first appeal.
Respondent acknowledges that appellant raised this issue before the trial court prior to
resentencing in a written brief, but did not even argue the point to the trial court during
resentencing.
The failure to lodge an objection to a trial court’s sentencing choices at the time of
sentencing concerning its use of mitigating and aggravating factors generally constitutes
a waiver of the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353-355.) Where
a defendant fails to object to what he or she later considers to be an improper dual use of

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facts to impose the upper term, the defendant has waived the issue on appeal. (People v.
Erdelen (1996) 46 Cal.App.4th 86, 90-91.)
In People v. Murphy (2001) 88 Cal.App.4th 392, 393-394 (Murphy), the defendant
successfully appealed the first time based on People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero). Murphy further argued his sentence was cruel and unusual
punishment. We rejected this argument as premature and affirmed the judgment in all
other respects. On remand, Murphy urged the court to exercise its discretion under
Romero, and argued a life sentence was cruel and unusual. The trial court rejected these
arguments. (Id. at p. 394.)
On the second appeal, Murphy asserted the trial court’s use of a prior burglary
conviction both to elevate his petty theft to a felony and to invoke the sentencing
provisions of the three strikes law violated constitutional due process and double
jeopardy principles. We rejected this new argument because we remanded the case to the
trial court for the sole purpose of deciding whether to exercise its discretion under
Romero and affirmed the judgment in all other respects without reversing appellant’s
sentence. (Murphy, supra, 88 Cal.App.4th at p. 394.)
Our Murphy decision found that where the remand was limited and defendant
failed to raise other sentencing issues during the first appeal, the defendant was precluded
from doing so on the second appeal. The only issue before the court on the second
remand was for the trial court to exercise its discretion under Romero. (Murphy, supra,
88 Cal.App.4th at p. 395-396.) The Murphy case noted, however, that where a matter is
remanded for resentencing, the entire sentence is before the trial court. (Id. at p. 395,
citing People v. Senior (1995) 33 Cal.App.4th 531, 534.)
Our disposition of the first appeal stated the trial court “shall resentence
Hernandez without reference to the strike allegation.” Arguably, this can be interpreted
as a limited remand for the trial court to simply remove the strike allegation from
appellant’s sentence. As in Murphy, we did not reverse appellant’s sentence. On the
other hand, the phrase directs the court to “resentence” appellant. We find this phrase

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ambiguous enough to conclude that appellant was not barred from raising the dual use of
facts issue to the trial court after our remand from the first appeal. We will, therefore,
reject respondent’s waiver argument and find the instant action distinguishable from
Murphy.
Dual Use of Facts
Appellant argued to the trial court and argues on appeal that two aggravating
factors applied by the trial court were inapplicable to his case; the crime involved great
violence or great bodily harm, and appellant was armed or used a weapon during the
offense. The parties pose lengthy arguments concerning whether the trial court’s
application of the use of a weapon was dual use of facts because this factor was already
applied to appellant’s sentence through the section 12022, subdivision (b) enhancement.
Because there were three other valid aggravating factors, and because the trial court
found the two mitigating factors to be weak, we will not discuss the trial court’s
application of weapon use as an aggravating factor and will assume, arguendo, this factor
was invalid.
Appellant does not contest the validity of the court’s consideration that he was on
probation when he committed the instant offense, or that his conduct constituted a danger
to society, as aggravating factors. As to the second factor, the trial court explained
appellant had a history of criminal conduct. Appellant’s argument that his conviction for
voluntary manslaughter is, necessarily, a crime of great violence and therefore covered in
the elements of the offense fails. The trial court noted appellant’s violence was
particularly egregious. The court noted appellant did not simply stab the victim once, but
repeatedly stabbed him. Where in the course of killing his or her victim a defendant
commits cruel, vicious, or callous acts which transcend the basic fact of great bodily
harm, the taking of the victim’s life does not immunize appellant from California Rules
of Court, rule 4.421(a)(1). (People v. Duran (1982) 130 Cal.App.3d 987, 990-991
[applying the predecessor to rule 4.421(a)(1), rule 421(a)(1); both rules are substantially
the same]; also see People v. White (1981) 117 Cal.App.3d 270, 282 [disapproved on

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another ground in People v. Scott, supra¸ 9 Cal.4th at p. 353, fn. 16] [rule applicable
where defendant shot victims multiple times even after they were incapacitated].)
Although the trial court noted appellant had a mental problem, the court found the
jury had already taken that factor into account in finding him guilty of voluntary
manslaughter rather than first or second degree murder. The court noted the victim to
“some extent” initiated the incident but further observed that the victim only used words
to tease appellant. These findings by the trial court indicate the court did not give great
weight to the two mitigating factors argued by defense counsel.
Sentencing courts have wide discretion in weighing aggravating and mitigating
factors and may balance them against each other in both qualitative and quantitative
terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) This is precisely what the
trial court did here. The court found the aggravating factors stronger than the mitigating
factors. Only a single valid aggravating factor is necessary to justify the upper term.
(People v. Osband (1996) 13 Cal.4th 622, 730.) Here, there were at least three valid
aggravating factors and the mitigating factors were not considered strong by the trial
court.
Where the trial court has given proper and improper reasons for sentence choice, a
reviewing court will set aside the sentence only if it is reasonably probable the trial court
would have chosen a lesser sentence had it known one or more of its reasons were
improper. (People v. Price (1991) 1 Cal.4th 324, 492; People v. Cruz (1995) 38
Cal.App.4th 427, 433-434.) If we were to remand this case for a third sentencing hearing
with instructions to the trial court not to consider appellant’s use of a weapon as an
aggravating factor, it would not be reasonably probable the court would reduce
appellant’s sentence.
BLAKELY
Appellant contends that in imposing the upper term, the court violated his right to
a jury trial under the Sixth Amendment as set forth in the Supreme Court’s recent
decision in Blakely v. Washington (2004) 542 U.S. 296. The California Supreme Court,

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however, found that California’s sentencing scheme for imposing an upper term does not
implicate the Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th
1238, 1256.) We are bound by the decisions of our high court. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed without prejudice to any relief to which defendant might
be entitled after the United States Supreme Court determines in Cunningham v.
California, No. 05-6551, the effect of Blakely v. Washington, supra, 542 U.S. 296 and
United States v. Booker (2005) 543 U.S. 220, on California law.

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