People v. Hernandez CA5 ( 2021 )

Filed 3/4/21 P. v. Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080208
Plaintiff and Respondent,
(Super. Ct. No. VCF182700)
v.
MANUEL HERNANDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Clara M.
Levers and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P.J., Meehan, J. and DeSantos, J.
Defendant Manuel Hernandez was convicted of shooting at an occupied vehicle
and three counts of assault with a firearm. He contends on appeal that the trial court
erred in (1) denying his request to hold proceedings to create a record for a youthful
offender parole hearing—commonly referred to as Franklin proceedings—pursuant to
Penal Code section 1203.11 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and
(2) imposing both firearm and gang enhancements on the assault with a firearm
convictions. The People agree with defendant on both issues. We vacate the sentence
and remand with direction for the trial court to strike the firearm enhancements,
resentence defendant, and conduct Franklin proceedings.
PROCEDURAL SUMMARY
On November 30, 2007, the Tulare County District Attorney filed an information
charging defendant, who was 17 years old on the date of the charged offenses, with
attempted murder of R.M. (§§ 187, subd. (a), 664; count 1), attempted murder of A.G.
(§§ 187, subd. (a), 664; count 2), attempted murder of A.A. (§§ 187, subd. (a), 664;
count 3), shooting at an occupied vehicle (§ 246, count 4), assault with a firearm of R.M.
(§ 245, subd. (a)(2); count 5), assault with a firearm of A.G., (§ 245, subd. (a)(2);
count 6), and assault with firearm of A.A. (§ 245, subd. (a)(2); count 7). The information
further alleged that defendant committed all offenses for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(C)). As to counts 1 through 3, the information alleged
defendant was personally armed with and discharged a firearm (§ 12022.53, subds. (b),
(c), (e)(1)) and as to counts 5 through 7, the information alleged defendant personally
used a firearm (§§ 667, subd. (c), 1197, subd. (c), 12022.5).
On October 3, 2008, the jury found defendant guilty on counts 4 through 7, but not
guilty on counts 1 through 3. As to counts 4 through 7, the jury found true the gang
allegations and the firearm allegations.
1 All further statutory references are to the Penal Code.
2.
On November 5, 2008, the trial court sentenced defendant to 32 years to life as
follows: on count 4, 15 years to life; on count 5, a consecutive term of three years (the
middle term), plus four years for the firearm enhancement (§ 12022.5), plus 10 years for
the gang enhancement (§ 186.22, subd. (b)(1)(C)); on counts 6 and 7, concurrent terms of
three years (the middle term), plus four years for the firearm enhancements (§ 12022.5),
plus 10 years for the gang enhancements (§ 186.22, subd. (b)(1)(C)).
On February 25, 2010, on remand, the trial court vacated and stayed the sentence
on count 7.
On September 25, 2019, defendant moved the trial court to conduct a Franklin
hearing. The trial court denied the motion on October 15, 2019.
On October 30, 2019, the defendant filed a notice of appeal.
DISCUSSION2
Franklin Proceedings
In 2013, the Legislature enacted Senate Bill No. 260 (2013–2014 Reg. Sess.)
(Stats. 2013, ch. 312, § 4), codified in section 3051, which provides for youth offender
parole hearings that guarantee juvenile offenders a meaningful opportunity for release on
parole. (Franklin, supra, 63 Cal.4th at p. 276; § 3051, subd. (e).) Youth offender parole
hearings are available, with some exceptions, to offenders who were under 25 years old
when they committed their controlling offenses. (§ 3051, subd. (b).) To ensure that the
youth offender parole hearing is meaningful, youth offenders must have an opportunity
for Franklin proceedings in the trial court, in order to make an accurate record of the
offender’s “characteristics and circumstances at the time of the offense.” (Franklin, at
p. 284.)
2 Because defendant raises only postconviction issues, the facts underlying the
offenses are not relevant and are omitted from this opinion.
3.
“In cases with final judgments, section 1203.01 gives the trial court authority to
conduct an evidence preservation proceeding as envisioned in Franklin.” (In re Cook
(2019) 7 Cal.5th 439, 452.)
The parties agree that defendant was 17 years old when he committed the offenses,
he is eligible for juvenile offender parole hearing during his 20th year of incarceration
(§ 3051, subd. (b)(2)), and he has not been afforded a full opportunity to make a record of
his characteristics and circumstances at the time of the offense because his conviction
occurred prior to enactment of section 3051. They conclude, and we agree, that
defendant should be permitted to supplement the record with any evidence relevant to his
eventual youth offender parole hearing. The trial court will be directed to conduct
Franklin proceedings. (See In re Cook, supra, 7 Cal.5th at p. 459 [a trial court may
exercise its discretion to ensure that only relevant and noncumulative information is
submitted by, for example, requiring an offer of proof or considering whether
documentary evidence (rather than testimony) would suffice].)
Firearm and Gang Enhancements
The parties agree that the sentences on defendant’s assault with a firearm
conviction were unauthorized because the trial court imposed two enhancements on each
offense—a 10-year gang enhancement and a four-year firearm enhancement—based on
defendant having personally used a firearm. We agree.
An unauthorized sentence can be corrected at any time. (People v. Rivera (2019)
7 Cal.5th 306, 348–349; People v. Scott (1994) 9 Cal.4th 331, 354–355.)
Section 1170.1, subdivision (f) provides, in relevant part: “When two or more
enhancements may be imposed for being armed with or using a dangerous or deadly
weapon or a firearm in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense.” In People v. Rodriguez (2009) 47
Cal.4th 501, 504 (Rodriguez), our Supreme Court concluded it was error to impose a 10-
year gang enhancement (§ 186.22, subd. (b)(1)(C)) and a personal use of a firearm
4.
enhancement (§ 12022.5) to a sentence on an assault with a firearm count. It explained
that the firearm enhancement “[fell] squarely within the limiting language of
section 1170.1’s subdivision (f)” because it was imposed based on defendant’s personal
use of a firearm. (Rodriguez, at p. 508; § 12022.5.) The 10-year gang enhancement fell
within the same limitation. That enhancement is only applicable if the offense of
conviction was a violent felony. (§ 186.22, subd. (b)(1)(C).) In Rodriguez, the court
explained that defendant’s crime was a violent felony only because “he ‘use[d] a firearm
which use [was] charged and proved as provided in … Section 12022.5.’ ” (Rodriguez, at
p. 509; § 667.5, subd. (c)(8)). Both enhancements were therefore only applicable because
defendant used a firearm. Therefore, “section 1170.1’s subdivision (f) require[d]
imposition of ‘only the greatest of those enhancements’ with respect to each offense.”
(Rodriguez, at p. 509.)
Rodriguez controls here. Defendant was convicted of three counts of assault with
a deadly weapon and as to each count the trial court imposed a personal use of a firearm
enhancement and a 10-year gang enhancement based on defendant’s use of a firearm.
The trial court was authorized only to have imposed the greater of those enhancements
with respect to each offense. The four-year enhancements for personal use of a firearm
must therefore be stricken.
Where a portion of a sentence must be stricken, “ ‘a full resentencing as to all
counts is [generally] appropriate, so the trial court can exercise its sentencing discretion
in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893;
see Rodriguez, supra, 47 Cal.4th at p. 509 [remanding for resentencing in light of its
conclusion that the sentence violated section 1170.1, subd. (f)].) On remand, the trial
court is directed to conduct a full resentencing in light of the changed circumstances.
5.
DISPOSITION
Defendant’s sentence is vacated and the matter is remanded. On remand, the trial
court is directed to strike the enhancements for personal use of a firearm on counts 5, 6
and 7, conduct a full resentencing, and conduct Franklin proceedings.
6.