People v. Hernandez CA4/1 ( 2024 )

Filed 5/31/24 P. v. Hernandez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082241
Plaintiff and Respondent,
v. (Super. Ct. No. INF1401079)
RAYMOND HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Mark E. Johnson, Judge. Motion to strike granted. Affirmed in part and
remanded for sentencing.
Joshua L. Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Raymond Hernandez admitted he fatally shot his cousin,
Manuel Hernandez, Jr., known in the family as “Lito.” The issue at trial was
the severity of the homicide. The prosecution theorized, in part, that this was
murder by lying in wait. The jury evidently accepted this theory, convicting
Hernandez of first degree murder and finding true the lying-in-wait special
circumstance, which made him subject to a sentence of life in prison without
the possibility of parole.
Emphasizing the various versions of events presented at trial,
Hernandez contests the sufficiency of the evidence of lying in wait.
Viewing the record in the light most favorable to the judgment, as we must,
we conclude there was substantial evidence to support the jury’s finding.
Hernandez also contends, and the Attorney General concedes, that the trial
court erred in imposing sentence on an additional conviction for negligent
discharge of a firearm. We agree with the parties. Accordingly, we affirm
Hernandez’s convictions but remand for full resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The shooting in this case took place at an apartment complex on
Avenue 44 in Indio.1 There are two parking lots within the complex—a north
lot and a south lot. The parking lots are connected by a driveway along the
west side of the complex. The western border of the property is lined with a
wrought iron fence and bougainvillea bushes. The only entrance and exit to
the complex is located at the southwest corner, where the driveway meets
Avenue 44.
1 A map of the complex is attached to this opinion as Appendix A.
The map was the People’s exhibit No. 2 at trial. We have redacted the name
and address of the complex. Certain symbols were added to the map during
witness testimony at trial. These will be explained below.
2
At the time of the shooting, in April 2014, several members of the
Hernandez family lived at this apartment complex, including Lito’s mother
and two sisters. Hernandez and his younger brother, J.H., lived about a mile
away from the complex, about three minutes driving or 20 minutes walking.
Hernandez was 18 years old and J.H. was 16. Lito was in his thirties.
On the night in question, Lito, Hernandez, and J.H. attended a party at
a residence near the back of the complex, along with about a dozen other
people including Luis S. and Ruben U. Luis had just met Lito the day prior.
He met Hernandez and J.H. for the first time at the party.
According to Luis,2 Hernandez and J.H. arrived around 10:00 or
10:30 p.m. They seemed intoxicated. Hernandez had an “attitude towards
everyone” at the party. When he had a hard time getting a drink, he got into
an argument and pushing match with another partygoer. Luis and Lito told
him to calm down, but he refused. With Lito’s permission, Luis led
Hernandez to a grassy area at the back of the complex to talk. Luis told him
he was being disrespectful. The conversation led to a brief physical fight,
then Lito intervened. Luis returned to the party while Lito stayed behind
with Hernandez and J.H. When Lito rejoined the gathering, he apologized to
Luis and said he asked the brothers to leave. Luis saw them walking out of
the complex.
About a half hour later, around midnight, Lito left the party. Moments
later, Luis and Ruben also left to go buy more alcohol. They got into Ruben’s
truck, which was parked in the north parking lot of the complex, and
reversed to the top of the driveway. Ruben stopped the truck for about five
2 At trial in 2022, Luis testified that he could not remember many details
of the shooting, so his version of events was largely presented through his
statements to police about five days after the shooting and his preliminary
hearing testimony in June 2016.
3
seconds to make sure they had money for the alcohol. At this point, Luis
noticed Lito walking south down the driveway. When Lito was about halfway
down the driveway, near his own car, Ruben slowly started driving south.
Luis saw two “youngsters”—Hernandez and J.H.—“just waiting” on the west
corner of the entrance/exit to the complex. (See Appen. A [the rectangle with
an “R” is where Ruben’s truck was parked; they drove south per the arrow;
the rectangle near Apartment 35 is where Lito’s car was parked; the square
on the southwest corner is where the brothers waited].)
While J.H. remained on the corner, Hernandez began “creeping up” on
Lito. Hernandez initially walked slow, then took “much bigger” steps as he
got closer. Lito reached the corner where the driveway connected with the
south parking lot. He was faced away from Hernandez, looking towards the
apartments. When Hernandez was about four feet away, he got Lito’s
attention, shot him, then ran away with J.H. Lito collapsed to the ground.
(See Appen. A [the “x” near Apartment 35 is where Luis saw the shooting
from; the circle near Apartment 39 is where Lito was shot].) Ruben and Luis
left immediately. As they drove out of the complex, they heard multiple
gunshots fired towards them.
Lito’s mother returned home sometime after midnight. As she drove
into the complex, she saw someone lying on the ground in the driveway. She
stopped her car, approached the person, and realized it was her son. (See
Appen. A [the rectangle in the south parking lot is where she stopped her
car].) When Lito did not respond to her attempts to get him up, she put her
head against his chest and realized that he was not breathing. She ran to
her daughter’s apartment, banged on the door, and urged her daughter to call
911.
4
Police arrived shortly thereafter and confirmed that Lito was dead.
His body lay about 40 feet from the entrance/exit. A cartridge case was found
about five feet to the southwest of his body. An autopsy later revealed the
cause of death was a single gunshot wound to his right temple area. The
entrance wound indicated that Lito was shot from at least two feet away.
The bullet appeared to travel from the front toward the back of his head, in a
slightly upward direction.
About six days after the shooting, the police interviewed Hernandez
and J.H.3 separately. Initially, J.H. said they went to the party around
9:00 p.m., drank a couple beers, then left around 10:30 p.m. He eventually
admitted his brother got into a fight, but maintained they left right after
that. Lito “wasn’t even around” them. When the officers said they had a
video showing him on the southwest corner of the property that night (a
ruse), he said he vomited there.
Meanwhile, in another interview room, Hernandez said they arrived at
the complex around 10:20 p.m. and parked his truck in the south parking lot.
At the party, some guys were looking at him wrong, so they started arguing.
The fight turned physical with one of the individuals, presumably Luis. Luis
pushed him and “barely tackled” him. Lito came to his defense, telling Luis
to “chill out” and pushing him away. He told Hernandez to go home. He did
not want Hernandez to get into trouble, and J.H. had school in the morning.
Hernandez agreed and left. He was upset that Lito interrupted the fight, but
respected Lito and listened to him. The brothers left around 10:30 p.m.
Hernandez claimed this was the last time he saw Lito.
3 At trial, J.H. claimed he could not really recall the night of shooting
because he was drinking that night and a long time had passed, so his
statements to police were presented to the jury.
5
When they were alone together in the interview room, Hernandez
asked J.H. what the officers knew. When J.H. mentioned the supposed video,
Hernandez said they would discuss it at home.
The police interviewed the brothers again the next day. On this date,
J.H. admitted he saw Lito at the party. After the fight, as the brothers
walked back to their truck, Hernandez said, “ ‘Fuck that fool.’ ” Hernandez
was angry because Lito scolded him and told him to calm down. Initially,
J.H. said Hernandez grabbed a .22 caliber rifle from the truck and told him:
“ ‘Wait in the truck. I have to go do something real quick.’ ” When
Hernandez returned to the truck about 10 to 15 minutes later, he said that
“he can’t trust anyone, especially family.” J.H. thought he was referring to
Lito.
Later in the interview, however, J.H. said they grabbed the rifle from
the truck and then walked to the southwest corner of the property, where the
driveway met Avenue 44. The brothers walked for two or three minutes.
J.H. agreed that they were silently “hunting” for Lito so Hernandez could
shoot him. They were on the corner for about one minute, then they heard
Lito’s voice and saw him walking.
They did not approach Lito or get his attention right away. They
“stayed where [they] were.” Then, Hernandez ran up to Lito and shot him
from about seven feet away, as Lito was turned sideways. J.H. stayed on the
corner and looked away. He did not think Lito saw them. Right after the
shooting, J.H. saw a truck drive from the north parking lot out of the
complex. Hernandez shot at the truck twice. J.H. initially stated they ran
home but later said they drove home in their truck.
At the same time, Hernandez decided to tell the officers “what really
happened.” At first, he said he dropped J.H. off at home then walked back
6
to the apartments to finish the fight. He brought his rifle so Lito could back
him up. As he entered the complex, Lito was “right there” near the entrance.
Lito seemed furious and asked what he was doing there. Hernandez was
about to tell him he came back to “squash the beef with these guys” when
Lito grabbed the rifle and it fired accidentally. Hernandez ran away
immediately. He insisted that J.H. was not with him. He then guided the
officers to a wash where he had hid the rifle.
When they got back to the station, the lead detective told Hernandez
that his story was inconsistent with the gunshot wound and with J.H.’s story.
Hernandez maintained that J.H. was not there, but he admitted the shooting
was not an accident. This time, he said he went back to the apartments to
finish the fight, but then he encountered Lito, who was “mouthing off” and
saying “all kinds of stupid shit.” Lito said: “ ‘What the hell are you doing
here? I told you guys to get the hell out of here.’ ” Angry, he started walking
towards Hernandez fast. Hernandez thought: “ ‘Oh, my God. He’s gonna try
something.’ ” He pulled the rifle out, Lito tried to smack it away, then
Hernandez took a step back and pulled the trigger. When asked what kind of
guy Lito was, Hernandez said that he was “pretty cool” but “[y]ou couldn’t
trust him.”
Eventually, Hernandez said J.H. followed him when he walked back to
the complex. Hernandez told J.H. to go home, but he refused. Hernandez did
not want him to walk back home alone in the dark, so he told J.H. to hurry
up and join him. J.H. stayed on the corner of the entrance/exit when the
shooting happened. He denied telling J.H. he was going to shoot Lito because
that was not his plan. He went there to deal with Luis. He had no problem
with Lito, who was at the wrong place at the wrong time.
7
His final story was that he went home to get his rifle, then drove his
truck back to the complex. Again, he tried to tell J.H. to stay home but J.H.
refused. Hernandez told J.H. if he insisted on coming, he had to stay in the
truck. But when they got to the complex, J.H. got out of the truck to vomit on
the corner of the entrance/exit. J.H. remained there during the shooting.
He admitted he shot once into the air when Luis and Ruben drove by.
He drove J.H. home, then went to hide the rifle in the wash.
Almost two years later, in February 2016, J.H. sat down with the lead
detective, a deputy district attorney, and an investigator. On this date,
J.H. said that Lito told them to leave after the fight. They drove home, then
walked back to the complex with the rifle. Hernandez was angry at Lito
because he was “always ripping people off” and “confronting [Hernandez]
about stuff.” When they got to the complex, J.H. stayed on the corner while
Hernandez continued walking into the complex. Hernandez was looking for
Lito. He wanted to scare him by shooting at him or near him. When J.H.
refused to say more, the interview was terminated.
The prosecution charged Hernandez with the murder of Lito (Pen.
Code, § 187, subd. (a); count 1),4 the attempted premeditated murder of Luis
and Ruben (§§ 664/187, subd. (a); counts 2 and 3), and discharging a firearm
at an occupied motor vehicle (§ 246; count 4). As to the murder, the
prosecution alleged the special circumstance that Hernandez intentionally
killed Lito while lying in wait (§ 190.2, subd. (a)(15)) and that he personally
and intentionally discharged a firearm causing great bodily injury and death
(§ 12022.53, subd. (d)). Regarding the attempted murders, the prosecution
4 Further undesignated statutory references are to the Penal Code.
8
asserted that he personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)).5
A jury convicted Hernandez of first degree murder and found true the
lying-in-wait special circumstance and the firearm enhancement (count 1).
The jury acquitted him of both attempted murders (counts 2 and 3). It also
acquitted him of shooting at an occupied motor vehicle, but convicted him of
the lesser included offense of shooting a firearm in a grossly negligent
manner (§ 246.3; count 4). The court sentenced him to life in prison without
the possibility of parole for the special circumstance murder, plus 25 years to
life for the firearm enhancement. It imposed a consecutive term of five years
for the negligent discharge of a firearm.6
DISCUSSION
Hernandez’s primary contention is that there was insufficient evidence
to support a finding that he committed the murder of Lito by lying in wait.
He also asserts the trial court imposed an unauthorized five-year prison term
on count 4 involving the negligent discharge of a firearm. We reject his first
argument, but accept the second, requiring that we remand for resentencing.
A. There is substantial evidence of lying in wait.
Hernandez contends there was insufficient evidence of lying in wait.
Specifically, he asserts there was no evidence of a substantial period of
watching and waiting. The upshot of his argument is twofold: (1) the true
5 As J.H. was only 16 years old at the time of the murder, his case was
adjudicated separately in the juvenile court.
6 The prosecution alleged several circumstances in aggravation under
California Rules of Court, rule 4.421, but none were admitted or found true
before sentencing. As a result, the court was limited to selecting the midterm
or low term on count 4. (See § 1170, subd. (b).)
9
finding on the lying-in-wait special circumstance is unsupported; and (2) the
court prejudicially erred in instructing the jury on lying in wait as a theory of
first degree murder. We reject his claim at its premise.
“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.” (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft); see also People v.
Mataele (2022) 13 Cal.5th 372, 420 [the same standard applies to assess
the sufficiency of the evidence supporting a special circumstance finding].)
Under this standard, “[t]he appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” (Kraft, supra, 23 Cal.4th at p. 1053.) “ ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment.” ’ ” (Id. at p. 1054.) Reversal is unwarranted “unless it appears
‘that upon no hypothesis whatsoever is there sufficient substantial evidence
to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Further, “[i]n deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts. Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. Moreover, unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a
conviction.” (People v. Young (2004) 34 Cal.4th 1149, 1181 (Young), citations
omitted.)
10
The lying-in-wait special circumstance “requires an intentional murder,
committed under circumstances which include (1) a concealment of purpose,
(2) a substantial period of watching and waiting for an opportune time to act,
and (3) . . . a surprise attack on an unsuspecting victim from a position of
advantage . . . .” (People v. Johnson (2016) 62 Cal.4th 600, 629 (Johnson),
internal quotations omitted.) Murder by lying in wait “historically has been
considered more reprehensible than other murders” because the victim is
denied “any chance of escape, aid, or self-defense.” (Id. at p. 637.)7
The purpose of the “watching and waiting” requirement “ ‘is to
distinguish those cases in which a defendant acts insidiously from those in
which he acts out of rash impulse. This period need not continue for any
particular length “ ‘of time provided that its duration is such as to show a
state of mind equivalent to premeditation or deliberation.’ ” ’ ” (People v.
Mendoza (2011) 52 Cal.4th 1056, 1073 (Mendoza), internal citations omitted.)
A few minutes, or even 90 seconds, can suffice. (People v. Moon (2005) 37
Cal.4th 1, 23 (Moon).) Also, “ ‘[w]atchful’ does not require actual watching; it
can include being ‘alert and vigilant’ in anticipation of the victim’s arrival to
take him or her by surprise.” (People v. Streeter (2012) 54 Cal.4th 205, 247.)
This element is the same for first degree murder and for the special
circumstance. (People v. Stevens (2007) 41 Cal.4th 182, 202, fn. 11.)
7 In this case, the prosecution alleged that Hernandez intentionally
killed Lito “while” lying in wait. In 2000, the electorate amended the special
circumstance (§ 190.2, subd. (a)(15)) to require the killing be committed “by
means of” lying in wait instead of “while” lying in wait, “to conform the
temporal connection between the killing and the lying in wait required for
the special circumstance to that required for lying-in-wait first degree
murder.” (Johnson, supra, 62 Cal.4th at p. 635.) This amendment did not
alter the “watching and waiting” element. (See id. at pp. 629–630.)
Hernandez does not raise any issue concerning the outdated, more stringent
language.
11
Viewing the record in the light most favorable to the verdict, a rational
jury could have found a substantial period of watching and waiting based on
statements from Luis and J.H. According to one version of events described
by J.H., they walked for two or three minutes around the southwest portion
of the complex “hunting” for Lito so that Hernandez could shoot him. They
stopped on the west corner of the entrance/exit for about one minute.
Significantly, this is the only exit from the complex. It is also near the
bougainvillea bushes lining the west side of the complex. From the evidence
that Hernandez chose to wait in this obscure spot—as opposed to looking for
Lito throughout the whole complex—the jury could have fairly inferred that
Hernandez planned to catch Lito on his way to his car or exiting the complex
after the party, and to ambush Lito before Lito saw him. This way, he could
launch his attack at the moment and in the manner most likely to achieve his
lethal goal.
Indeed, when the brothers spotted Lito in the driveway, they did not
immediately approach him, call out to him, or otherwise seek to draw his
attention. They initially “stayed where [they] were.” The jury could have
found this was when Luis first saw the brothers “just waiting” on the west
corner. Continuing with Luis’s version of events, Hernandez began “creeping
up” on Lito. He moved slowly with his head down. As he got closer, he
quickened his pace. All the while, Lito was turned away from him. If Lito
saw Hernandez at all—J.H. did not think he did—it was at the last moment,
too late for “escape, aid, or self-defense.” (Johnson, supra, 62 Cal.4th at
p. 637.) The jury could have fairly concluded that waiting a moment on the
corner, then slowly sneaking up on Lito, was part of Hernandez’s watching
and waiting for an opportune time to act—i.e., when Lito was close enough
12
to shoot but still facing another direction, so he would not see Hernandez
approaching him with the loaded rifle.
To be sure, the record indicates the period of watching and waiting—
from the two or three minutes of walking around the southwest area of the
property, to the minute on the corner, to the creeping approach—
was something less than five minutes at most. But the Supreme Court has
made it clear that the precise period of time is not critical; as little as 90
seconds can be enough. (Moon, supra, 37 Cal.5th at p. 23.) The crucial
inquiry is whether the attack was insidious as opposed to impulsive.
(Mendoza, supra, 52 Cal.4th at p. 1073.) Given the evidence that Hernandez
waited with his rifle near the only exit to the complex, continued to wait
when he spotted Lito walking down the driveway, crept up on him as he
looked away, and then shot him in the side of his head once he was close
enough to ensure he did not miss, the jury was justified in believing the
shooting was considered and insidious, not the result of rash impulse.
Hernandez compares his case to People v. Nelson (2016) 1 Cal.5th 513(Nelson) and People v. Carter (2005) 36 Cal.4th 1215 (Carter), but both are
distinguishable. The defendant in Nelson failed to receive a promotion. He
knew that his coworker, who received the promotion instead, waited in the
parking lot before work. Early in the morning, the defendant rode his bicycle
to the parking lot with a loaded gun. He “parked his bicycle, approached the
car on foot from behind and fired several shots into the car through an open
rear window, then started to walk away before returning and firing again
into the car.” (Nelson, at p. 522.) The coworker and her friend, who was also
in the car, died of multiple gunshot wounds. (Id. at p. 525.) The Supreme
Court reversed a lying-in-wait finding because there was no evidence of a
“distinct period of watchful waiting.” (Id. at pp. 521, 551.) As there was no
13
evidence that the defendant “arrived before the victims or waited in ambush
for their arrival” there was no factual basis to infer that he waited for a time
when the victims would be vulnerable to surprise attack. (Id. at p. 551.)
Essentially, the only version of events presented to the jury in Nelson
was that the defendant found the victims, then immediately approached
them and shot them. Hernandez gave a story that was somewhat akin to
Nelson. At one point, he said that he arrived at the complex and immediately
found Lito near the entrance. Lito seemed furious that Hernandez came back
after he told him to leave. They approached each other, or Lito marched
towards him, then Hernandez fired the rifle accidentally or impulsively. But
the jurors were not required to accept this version of events. Instead, they
were free to rely on evidence from J.H. and Luis that Hernandez waited on
the corner in the dark by the bushes and, once Lito was close but looking
away, crept up on him and shot him. This evidence of waiting and creeping
sets this case apart from Nelson.
In Carter, the defendant fatally strangled the victim in her home.
(36 Cal.4th at p. 1260.) There was some evidence of forced entry, in the form
of a pried doorjamb and wood chips by the victim’s front door. (Id. at pp.
1231–1232, 1260.) A neighbor also observed the defendant’s car idling in
front of the victim’s house around the time she was killed. (Id. at pp. 1230,
1260.) The Supreme Court held this evidence was insufficient to establish
lying in wait. (Id. at p. 1261.) As the court reasoned, the wood chips tended
to show forced entry, but not when entry occurred. (Ibid.) The defendant
could have forced entry while the victim was distracted in another part of her
home. (Id. at p. 1262.) And the timing of when the neighbor saw the car
idling could not be pinpointed. (Ibid.) As a result, the evidence failed to
support an inference that the defendant waited in her home or in his car until
14
she returned, to facilitate a surprise attack. (Id. at pp. 1261–1262.) Here, in
contrast, there was evidence that Hernandez hunted near the entrance/exit
and waited on the corner before he found and shot Lito.
Hernandez emphasizes that J.H. gave various inconsistent statements
to police. That may be true, but it does not mean the jury was required to
disbelieve everything J.H. said. To the contrary, the trial court instructed
the jury to “not automatically reject testimony just because of inconsistencies
or conflicts.” Instead, the jurors were empowered to “believe all, part, or none
of any witness’s testimony” depending on their evaluation of the witness.
(CALCRIM No. 226.) Hernandez fails to demonstrate how J.H.’s statements
to police relevant to watching and waiting were physically impossible or
inherently improbable, such that we must disregard them in assessing the
sufficiency of the evidence on appeal. (See Young, supra, 34 Cal.4th at
p. 1181 [“unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a
conviction”]; see also In re S.A. (2010) 182 Cal.App.4th 1128, 1149
[“inconsistencies and conflicts in the evidence go to credibility of witnesses
and weight of the evidence, which are matters for the trial court”].) In sum,
the jury could have reasonably relied on certain portions of J.H.’s statements,
in combination with Luis’s statements, to find that Hernandez watched and
waited for an opportune time to shoot Lito.
B. The five-year sentence on count 4 is unauthorized.
Hernandez contends, and the Attorney General concedes, that the trial
court erred in imposing five years on count 4 because that is not an option
under the sentencing triad for this offense. We agree with the parties that
the five-year term is unauthorized.
15
On count 4, the jury found Hernandez not guilty of shooting at an
occupied motor vehicle (§ 246) but guilty of the lesser included offense of
negligent discharge of a firearm (§ 246.3). The jury also found true that the
offense was a serious felony within the meaning of section 1192.7, subdivision
(c)(8). At sentencing, the trial court purported to impose the midterm of five
years on that count. It seems the court mistakenly referenced the triad for
shooting at an occupied vehicle instead of negligent discharge of a firearm.
The latter offense permits a sentence of 16 months, two years, or three years
in prison. (§§ 246.3, subd. (a), 1170, subd. (h).) Accordingly, we must remand
for the trial court to select an authorized term on count 4. (See People v.
Massengale (1970) 10 Cal.App.3d 689, 693 [“When a court pronounces a
sentence which is unauthorized by the Penal Code, that sentence must be
vacated and a proper sentence imposed whenever the mistake is
appropriately brought to the attention of the court”].)
The parties disagree on whether the trial court on remand should
conduct a full resentencing or simply correct the unauthorized term. “The
general rule is that on remand for resentencing the trial court is ‘[n]ot limited
to merely [correcting] illegal portions’ and ‘may reconsider all sentencing
choices. [Citations.] This rule is justified because an aggregate prison term
is not a series of separate independent terms, but one term made up of
interdependent components. The invalidity of one component infects the
entire scheme.’ ” (People v. Codinha (2023) 92 Cal.App.5th 976, 994.) In this
situation, the court “may consider ‘any pertinent circumstances which have
arisen since the prior sentence was imposed.’ ” (People v. Buycks (2018) 5
Cal.5th 857, 893.) As the Attorney General offers no analysis explaining
16
why we should depart from this general rule, we will remand for a full
resentencing hearing.8
DISPOSITION
The matter is remanded for resentencing consistent with this opinion.
Upon resentencing, the superior court shall prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.9
DATO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
8 As a practical matter, we recognize that because the trial court must
impose life without parole for the special circumstance murder (see § 1385.1),
the only other aspect of Hernandez’s sentence that could possibly be adjusted
is the firearm enhancement (see, e.g., People v. McDavid (2024) 15 Cal.5th
1015, 1030 [§ 12022.53, subd. (h) gives courts discretion to strike
enhancements under that section or impose a lesser included, uncharged
enhancement]). We express no opinion on whether or how the court should
exercise its discretion.
9 On December 22, 2023, the Attorney General filed a motion to strike its
initial responsive brief and replace it with a proposed revised responsive brief
that corrects certain citations to the record. We grant the Attorney General’s
motion, strike its initial responsive brief filed on December 12, 2023, and
deem its revised responsive brief filed as of December 22, 2023.
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