People v. Hernandez CA2/3 ( 2024 )

Filed 10/25/24 P. v. Hernandez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B325783
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA150709)
v.
MANUEL EDWARD
HERNANDEZ III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Roger Ito, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
A jury convicted Manuel Edward Hernandez III of second
degree murder. On appeal, Hernandez argues the court erred by
refusing to instruct the jury on heat of passion voluntary
manslaughter. He also contends the court abused its sentencing
discretion by not dismissing two enhancements pursuant to
Penal Code section 1385.1 We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
One afternoon in May 2019, Hernandez went car shopping
with his girlfriend. She bought a black Dodge Charger with non-
standard 20-inch chrome wheels. The dealer taped a temporary
registration in the upper right corner of the front windshield.
Hernandez drove the car off the lot at 3:00 or 4:00 p.m. His
girlfriend left in a different vehicle.
That evening, Hector Hernandez (Hector)2 was standing on
a sidewalk on Maywood Avenue smoking marijuana. A car
stopped near Hector. Hernandez was driving the car. The
passenger, who Hector did not recognize, was holding a gun. The
passenger asked Hector where he was from. Hector thought the
passenger would have shot him, but Hernandez recognized
Hector and saved his life.
According to Hector, Hernandez and the passenger briefly
spoke. They got out of the car and walked toward a man, Gabriel
Genera, who was walking his dog nearby. Hernandez and the
1 All further undesignated statutory references are to the
Penal Code.
2 Because Hector Hernandez shares a last name with
Hernandez, we refer to him as Hector to avoid confusion. No
disrespect is intended.
2
passenger asked, “where you from?” Genera responded, “ ‘I don’t
give a fuck where you foos [sic] from . . . .’ ” Hector heard five or
six gunshots and hid behind a tree. Genera was shot four times
and killed. Hector did not see who shot Genera.
Police officers obtained recordings from video cameras
mounted on buildings nearby. The footage showed Hernandez
step out of the driver’s seat of a Dodge Charger and shoot a
firearm at Genera, who fell to the ground. Hernandez drove
away. The video recordings also depicted Hector standing near
the scene of the crime. Police officers later showed some of the
footage to Hector, who identified Hernandez holding a gun.
Huntington Park Police Officer David Ceja received a
report that a murder suspect had been driving a black Dodge
Charger with chrome wheels and a registration or sales permit
taped to its windshield. Officer Ceja also viewed a video
depicting the suspect, who had a distinctive hairstyle, and the
Charger. The day after Genera was killed, Officer Ceja spotted a
vehicle matching the description of the Charger. The driver
looked like the murder suspect. Officer Ceja arrested the driver,
Hernandez.
Hernandez had tattoos associated with the Maywood Locos,
and several photographs introduced at trial showed him making
Maywood Locos gang signs.
Defense Evidence
Hernandez testified in his defense. He admitted that he
was a Maywood Locos gang member.
After he acquired the Charger, Hernandez went home to
retrieve a gun, because “you never know” and for “safety.” He
then hung out at a warehouse with some friends. At some point,
Hernandez and a friend left to buy beer at a liquor store on
3
Maywood Avenue. They parked the Charger down the street
from the store. Hector was standing nearby. Hernandez
recognized Hector and asked him to watch the Charger while
Hernandez went to the liquor store.
As Hernandez and his friend walked toward the liquor
store, Hernandez saw Genera walking a dog and smoking a
cigarette across the street. Genera did not look like a gang
member. From across the street, Hernandez asked Genera for a
cigarette. Genera yelled, “ ‘This is my hood. Why don’t you come
here – why don’t you bring your bitch ass over here so I can lay
your ass down.’ ” One of Genera’s hands was on the dog’s leash,
and his other hand was around chest level. Hernandez did not
see anything in Genera’s hands, and he never saw a weapon.
Hernandez believed Genera made “some fast movements with his
hands” at some point during the interaction. Hernandez went
into “defense mode.” Hernandez was “scared” and “shocked” by
Genera’s “aggression.” By this point, Hernandez thought Genera
was a gang member. He thought his life was in danger, as well
as his friend’s life. He wanted to defend himself and the friend.
The friend, who did not appear to be scared, approached Genera.
At the same time, Hernandez pointed his gun at Genera and,
from across the street, shot at Genera six times. Hernandez
drove away immediately because he “wasn’t supposed to have a
gun.”
Trial
The People charged Hernandez with willful, deliberate, and
premeditated murder (§ 187, subd. (a)) and possession of a
firearm by a felon (§ 29800, subd. (a)(1)). As to the murder
charge, the information alleged that Hernandez personally used,
intentionally discharged, and proximately caused death or
4
serious injury with a firearm. (§ 12022.53, subds. (b), (c), (d).) It
also alleged that Hernandez had two prior convictions for serious
and/or violent felonies (§§ 667, subd. (d), 1170.12, subd. (b)), and
a prior violent felony conviction (§ 667, subd. (a)(1)). In addition,
as to both counts, the information alleged three aggravating
factors: the offenses involved great violence or bodily harm,
Hernandez was armed with and used a weapon, and the crimes
indicate Hernandez is a serious danger to society. (Cal. Rules of
Court, rule 4.421(a)(1) & (2), (b)(1).)3
The court instructed the jury on both reasonable and
imperfect self-defense or defense of another. The court denied
Hernandez’s request for a heat of passion voluntary
manslaughter instruction, reasoning that Genera’s conduct would
not “cloud the judgment of a normal person.”
The jury convicted Hernandez on both charges, and found
true the firearm allegations and the factors in aggravation. The
trial court later found true that Hernandez had been convicted of
a prior strike within the meaning of the Three Strikes law (§ 667,
subd. (e)(2)(A)), based on a 2014 conviction for shooting at an
occupied motor vehicle.4
Sentencing
In their sentencing memorandum, the People urged the
court to impose a sentence of 63 years to life. The People noted
that the jury found true three aggravating circumstances: “The
3 Before trial, the court struck allegations that the crimes
were committed in association with a street gang (§ 186.22, subd.
(b)(1)(C)) and that the victim was particularly vulnerable (Cal.
Rules of Court, rule 4.421(a)(3)).
4 The People elected to prove just one of two alleged prior
strikes.
5
crime involved great violence, great bodily harm, threat of great
bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness;” Hernandez “was armed with or used
a weapon” in committing the crime; and Hernandez “engaged in
violent conduct that indicates a serious danger to society.” (Cal.
Rules of Court, rule 4.421(a)(1) & (2), (b)(1).) The People also
submitted evidence of four additional aggravating circumstances:
Hernandez’s convictions were “numerous or of increasing
seriousness,” he served a prior prison term, he was on probation
when he murdered Genera, and his historical performance on
probation was “unsatisfactory.” (Id., rule 4.421(b)(2)–(5).) The
People argued that the evidence did not support any of the
mitigating circumstances in California Rules of Court, rule
4.423(a).
Hernandez’s sentencing memorandum asked the court to
strike the prior felony conviction allegation under Romero5, stay
the firearm enhancement or strike it and impose a lesser
uncharged firearm enhancement, and stay the five-year prior
enhancement.
Hernandez also submitted a mitigation memorandum. It
explained that Hernandez’s mother used drugs during her
pregnancy and was addicted to crack. When Hernandez was two
or three years old, his father took full physical custody of him,
but his father “struggled with alcohol” and “did not provide the
love and bond” that Hernandez needed. Both parents were
arrested several times during Hernandez’s childhood. When
Hernandez was two years old, his older brother was shot and
killed in his presence. Hernandez’s grandmother cared for him
when his father was in jail or otherwise unavailable, but she died
5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
6
when Hernandez was 13. Hernandez was often left home alone,
and he began using marijuana and heavier drugs including meth.
He lived in a high-crime area. He was shot when he was 15,
again when he was 16, and once more at a later age.
Hernandez’s childhood best friend and two other friends were
shot and killed when he was 17, and ten other friends were shot
to death after he turned 18.
At the sentencing hearing, Genera’s family provided victim
impact statements. Genera’s widow and two of his sons
expressed frustration that Hernandez laughed or smiled when
one of the sons cried during the trial or sentencing.
The court recognized its discretion to strike a prior strike
under Romero, as well as “a newly granted authority to strike
both the firearm allegation and the 667(a) prior allegation as
they are – they’ve been found true either by the court or by the
jury.” The court explained it had “thoroughly” read the parties’
sentencing memoranda, Hernandez’s Romero motion,
Hernandez’s mitigation memorandum, and all supporting
documents, declarations, and letters. The court acknowledged
Hernandez’s “very tragic and unfortunate childhood.” It also
recognized that he had “a loving and supportive family.” The
court was “shocked” that Hernandez “let things happen this
way.” It described the crime as “an extremely callous, gang-
motivated, unprovoked murder.” According to the court, the
evidence demonstrated that the victim did not want to “gang
bang,” and simply had the misfortune of choosing to walk his dog
and smoke a cigarette at the same time that Hernandez and “one
of his homeboys [were] searching for someone to assault and/or
kill.”
7
The court declined to exercise its discretion to strike
Hernandez’s prior strike conviction. It imposed an aggregate
sentence of 60 years to life, consisting of 15 years to life for
second degree murder, doubled to 30 years based on Hernandez’s
prior strike; a firearm enhancement of 25 years to life; and a five-
year enhancement for a prior serious felony under section 667,
subdivision (a)(1). The court imposed a concurrent two-year
sentence for the felon in possession of a firearm charge. The
court invited Hernandez’s trial counsel to present argument
during the sentencing hearing, but his counsel declined and did
not object to the sentence imposed.
Hernandez timely appealed.
DISCUSSION
I. The Trial Court Did Not Err in Declining to Instruct
the Jury on Heat of Passion Voluntary Manslaughter
Hernandez argues the trial court erred by failing to
instruct the jurors on heat of passion voluntary manslaughter.
We find no error.
a. Legal framework and standard of review
“ ‘In criminal cases, even absent a request, the trial court
must instruct on general principles of law relevant to the issues
raised by the evidence. [Citation.] This obligation includes
giving instructions on lesser included offenses when the evidence
raises a question whether all the elements of the charged offense
were present . . . .’ ” (People v. Moye (2009) 47 Cal.4th 537, 548
(Moye).) However, the trial court is not required to instruct the
jury on a lesser included offense when it is not supported by
substantial evidence. (Id. at p. 553.)
“Second degree murder is an unlawful killing with malice
aforethought, but without the premeditation or deliberation
8
required for first degree murder.” (In re Ferrell (2023) 14 Cal.5th
593, 600.) A defendant lacks malice when the defendant kills
“upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).)
Heat of passion therefore reduces “an intentional, unlawful
killing from murder to voluntary manslaughter by negating the
element of malice that otherwise inheres in such a homicide,” and
this form of voluntary manslaughter “is considered a lesser
necessarily included offense of intentional murder.” (Moye,
supra, 47 Cal.4th at p. 549.)
“A heat of passion theory of manslaughter has both an
objective and a subjective component.” (Moye, supra, 47 Cal.4th
at p. 549.) The objective component requires that the victim
engaged in some conduct, whether physical or verbal,
“sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and
reflection.” (Id. at p. 550.) “To be adequate, the provocation must
be one that would cause an emotion so intense that an ordinary
person would simply react, without reflection.” (People v. Beltran
(2013) 56 Cal.4th 935, 949 (Beltran).) “To satisfy the subjective
element of this form of voluntary manslaughter, the accused
must be shown to have killed while under ‘the actual influence of
a strong passion’ induced by such provocation. [Citation.] ‘Heat
of passion arises when “at the time of the killing, the reason of
the accused was obscured or disturbed by passion to such an
extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.”
[Citations.]’ ” (Moye, at p. 550.)
“[W]hether the trial court should have given a particular
jury instruction involves a mixed question of law and fact which
9
is ‘ “predominantly legal,” ’ ” and therefore “we review de novo
whether the specific instruction was required” (People v. Sorden
(2021) 65 Cal.App.5th 582, 615), and we review the evidence in
the light most favorable to the defendant (People v. Turk (2008)
164 Cal.App.4th 1361, 1368, fn. 5).
b. Analysis
Viewing the evidence in the light most favorable to
Hernandez, we conclude a heat of passion instruction was not
supported by substantial evidence.
The objective component of heat of passion “focuses upon
whether the person of average disposition would be induced to
react from passion and not from judgment.” (Beltran, supra, 56
Cal.4th at p. 939.) Here, after Hernandez asked Genera for a
cigarette, Genera yelled: “ ‘This is my hood. Why don’t you come
here – why don’t you bring your bitch ass over here so I can lay
your ass down.’ ” However, “ ‘belligerent behavior’ ” or “insults”
alone do not “induce sufficient provocation in an ordinary person
to merit an instruction on voluntary manslaughter.” (People v.
Enraca (2012) 53 Cal.4th 735, 759 (Enraca); People v. Manriquez
(2005) 37 Cal.4th 547, 585–586 [calling defendant “ ‘a mother
fucker’ ” and “asking defendant whether he had a gun and daring
him to use it” was not objectively provocative]; People v. Gutierrez
(2009) 45 Cal.4th 789, 827 [cursing was not sufficiently objective
provocation].) According to Hernandez, Genera also made some
fast movements with his hands. Yet, Hernandez never saw a
weapon, and Genera remained across the street from him during
the entire interaction. Genera’s fast hand movements, even
when combined with a verbal threat or insult, are not substantial
evidence of objective provocation. (Compare People v. Dominguez
(2021) 66 Cal.App.5th 163, 168, 175–179 [substantial evidence of
10
objective provocation existed where a gang member standing
eight feet away from the defendants said “ ‘Where the fuck you
from? . . . This is Eastside,’ and lunged at [defendants] while
reaching for an apparent weapon in his waistband”].)
Hernandez argues that Genera’s actions were objectively
provocative because he thought Genera was a gang member.
However, “ ‘ “no defendant may set up his own standard of
conduct and justify or excuse himself because in fact his passions
were aroused, unless further the jury believe that the facts and
circumstances were sufficient to arouse the passions of the
ordinarily reasonable man.” ’ ” (People v. Gutierrez (2002) 28
Cal.4th 1083, 1143–1144.) Hernandez’s subjective beliefs about
Genera are therefore irrelevant to this analysis. Objectively,
Hernandez described Genera as appearing to be a “regular
person,” with no gang tattoos, no shaved head, and no clothing
suggesting he was a gang member. Hernandez also claims
Genera appeared to be a gang member because he responded
aggressively to a request for a cigarette. Yet, he fails to explain
how this aggression would cause a reasonable person to identify
Genera as a gang member, as opposed to an agitable or unstable
individual. And even if a reasonable person would identify
Genera as a gang member, this would not “provoke an ordinarily
reasonable person.” (People v. Avila (2009) 46 Cal.4th 680, 706
[perceived gang challenge was not sufficient to provoke a
reasonable person]; Enraca, supra, 53 Cal.4th at p. 759 [“gang-
related challenges” are not sufficiently provocative to require a
heat of passion instruction].)
Moreover, even if Genera’s conduct had been objectively
provocative, the evidence demonstrates Hernandez was not
“actually, subjectively, under the influence of a ‘strong passion’ ”
11
when he killed Genera.6 (Moye, supra, 47 Cal.4th at p. 552.)
After Genera yelled at Hernandez, Hernandez’s first thought was
“defense mode.” He thought his and his friend’s lives were in
danger, and he decided to defend himself. After Hernandez killed
Genera, he remained collected enough to realize he “wasn’t
supposed to have a gun” and fled the scene. “In short, the thrust
of defendant’s testimony below was self-defense,” and according
to his own testimony, he responded to a perceived threat with
deliberation and reasoned judgment. (Id. at p. 554.) “[N]o
principle of law required the trial judge below to disregard the
evidence in order to find that the jury should consider whether
defendant subjectively killed in the heat of passion, when no
substantial evidence supported that theory of manslaughter, and
the evidence actually introduced on the point—the defendant’s
own testimony—was to the contrary.” (Ibid.; compare People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1134 [heat of passion
instruction required where defendant “panicked” and “felt ‘a rush
of anxiety and adrenaline’ ” before “instinctively” shooting
victim].)
Insufficient evidence supported a heat of passion theory in
this case, and therefore the trial court did not err in rejecting
Hernandez’s request.
6 Hernandez appears to argue that his “subjective state of
mind” is irrelevant to our analysis, citing People v. Lee (1999) 20
Cal.4th 47, 59. However, as our high court later clarified, the
heat of passion theory requires that the defendant was “actually,
subjectively, under the influence of a ‘strong passion’ ” when the
killing occurred. (Moye, supra, 47 Cal.4th at p. 552.)
12
II. Hernandez Has Not Established That the Trial Court
Abused Its Sentencing Discretion Under Section
1385, Subdivision (c)
Hernandez also argues that the trial court abused its
discretion by declining to dismiss two sentencing enhancements
based on section 1385, subdivision (c). We find no abuse of
discretion.7
a. Legal framework and standard of review
Effective January 1, 2022—more than ten months before
Hernandez was sentenced—our Legislature passed and our
Governor signed Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats.
2021, ch. 721, § 1), which amended section 1385 to provide trial
courts with guidance in exercising their discretion to dismiss
7 As an initial matter, Hernandez failed to raise this claim
below. Hernandez’s opening brief claims that his sentencing
memorandum raised arguments as to the four section 1385,
subdivision (c) mitigating circumstances identified on appeal, and
the People’s brief repeats this assertion. However, the record
contradicts this claim. Hernandez’s sentencing memorandum
asked the court to strike the prior strike allegation under Romero
and section 1385, subdivision (a). It also asked the court to stay
the firearm enhancement and the five-year prior violent felony
enhancement, and to strike the firearm enhancement and impose
a lesser uncharged enhancement under section 12022.53. But
Hernandez never asked the court to dismiss any enhancement
pursuant to section 1385, subdivision (c), nor did he object to the
sentence ultimately imposed. (People v. Carmony (2004) 33
Cal.4th 367, 375–376 (Carmony) [defendant’s failure to invite the
court to dismiss under § 1385 forfeits the issue on appeal].)
However, even if Hernandez forfeited this claim, we exercise our
discretion to consider his arguments. (See § 1259.)
13
sentencing enhancements. (People v. Coleman (2024) 98
Cal.App.5th 709, 723–724 (Coleman).)
Section 1385, subdivision (c) now instructs the trial court to
“dismiss an enhancement if it is in the furtherance of justice to do
so, except if dismissal of that enhancement is prohibited by any
initiative statute.” It further requires the court to “consider and
afford great weight” to evidence of mitigating circumstances, and
instructs that “the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would
endanger public safety.” (§ 1385, subd. (c)(2).) Four mitigating
circumstances are relevant here: “(B) Multiple enhancements are
alleged in a single case. In this instance, all enhancements
beyond a single enhancement shall be dismissed. [¶] (C) The
application of an enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.
[¶] . . . [¶] (E) The current offense is connected to prior
victimization or childhood trauma. [¶] . . . [¶] (H) The
enhancement is based on a prior conviction that is over five years
old.” (Id., subd. (c)(2)(B), (C), (E) & (H).)
We review a trial court’s sentencing decision for abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847,
superseded by statute on another ground as stated in People v.
Lewis (2023) 88 Cal.App.5th 1125, 1132.) “The trial court’s
sentencing discretion must be exercised in a manner that is not
arbitrary and capricious, that is consistent with the letter and
spirit of the law, and that is based upon an ‘individualized
consideration of the offense, the offender, and the public
interest.’ ” (Sandoval, at p. 847.) “A court abuses its discretion
when it makes an arbitrary or capricious decision by applying the
14
wrong legal standard [citations], or bases its decision on express
or implied factual findings that are not supported by substantial
evidence.” (People v. Moine (2021) 62 Cal.App.5th 440, 449.)
The appellant’s burden is to “affirmatively demonstrate[]”
that the trial court misunderstood its sentencing discretion.
(Coleman, supra, 98 Cal.App.5th at p. 724.) Therefore, “in light
of the presumption on a silent record that the trial court is aware
of the applicable law, including statutory discretion at
sentencing, we cannot presume error where the record does not
establish on its face that the trial court misunderstood the scope
of that discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th
515, 527 (Gutierrez).) “ ‘ “In the absence of . . . a showing [that
the court misunderstood the law or its discretion], the trial court
is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ ” (Carmony,
supra, 33 Cal.4th at pp. 376–377.)
b. Hernandez has not established that the trial court
abused its discretion
Hernandez first argues that the court failed to greatly
weigh his childhood trauma. (§ 1385, subd. (c)(2)(E).) However,
he fails to identify any evidence in the record to support that the
court minimized or ignored that circumstance. Indeed, contrary
to Hernandez’s contentions, his trial counsel submitted a
mitigation memorandum describing, at length, the violence and
trauma Hernandez experienced as a child. The court
“thoroughly” read that memorandum and all supporting
materials, and found that Hernandez had a “very tragic and
unfortunate childhood.” We presume the court understood and
15
acted within its discretion, absent a showing to the contrary.
(Carmony, supra, 33 Cal.4th at pp. 376–377.)
Hernandez claims the court also failed to greatly weigh
three other mitigating circumstances: That the sentence imposed
was based on multiple enhancements, including one
enhancement based on a prior strike that occurred more than five
years before Hernandez murdered Genera; and that the
aggregate sentence exceeded 20 years. (§ 1385, subd. (c)(2)(B),
(C) & (H).)8 Although the court did not describe these as
mitigating circumstances or expressly state that it greatly
weighed them, Hernandez again fails to identify anything in the
record suggesting the court misunderstood or otherwise abused
its discretion. Hernandez’s “citation to a silent record is
insufficient to meet his burden” on this point. (Coleman, supra,
98 Cal.App.5th at p. 725.)
Hernandez also contends that the trial court was required
to dismiss one or both enhancements in this case, because section
1385, subdivision (c)(2)(B) and (C) state that enhancements “shall
be dismissed” when multiple enhancements exist or when
applying an enhancement could result in a sentence of over 20
8 We note that Hernandez failed to present any reasoned
argument that applying the enhancements in this case “could
result in a sentence of over 20 years.” (§ 1385, subd. (c)(2)(C).)
Hernandez was sentenced to 30 years to life based on his second
degree murder conviction and the Three Strikes law. Thus,
before any enhancements were applied, his sentence exceeded 20
years. (People v. Burke (2023) 89 Cal.App.5th 237, 243 [“the
Three Strikes law is not an enhancement; it is an alternative
sentencing scheme for the current offense”].) However, even
assuming this subdivision applies, Hernandez has not
established any abuse of discretion.
16
years. However, as Hernandez concedes, several Courts of
Appeal have rejected this argument—indeed, Hernandez has not
identified a single case that has accepted his position. (People v.
Cota (2023) 97 Cal.App.5th 318, 335; People v. Renteria (2023) 96
Cal.App.5th 1276, 1284; People v. Mendoza (2023) 88 Cal.App.5th
287, 295–296; People v. Anderson (2023) 88 Cal.App.5th 233, 239
(Anderson).)
As the Anderson court explained, “the statement that a
court ‘shall’ dismiss certain enhancements appears as a subpart
to the general provision that a ‘court shall dismiss an
enhancement if it is in the furtherance of justice to do so.’
(§ 1385, subd. (c)(1), italics added.) In other words, the dismissal
of the enhancement is conditioned on a court’s finding dismissal
is in the interest of justice.” (Anderson, supra, 88 Cal.App.5th at
p. 239.) Moreover, the statute provides that “proof of one of the
factors ‘weighs greatly’ in favor of dismissal ‘unless’ the court
finds dismissal would endanger public safety. ([§ 1385,] subd.
(c)(2).) This language, taken together, explicitly and
unambiguously establishes: the trial court has discretion to
dismiss sentencing enhancements; certain circumstances weigh
greatly in favor of dismissal; and a finding of danger to public
safety can overcome the circumstances in favor of dismissal.”
(Ibid.) We agree with and adopt the Anderson court’s reasoning.
The trial court was not obligated to dismiss any enhancement;
rather, it retained discretion to do so within the parameters set
out in section 1385, subdivision (c).
Relatedly, Hernandez argues that whenever any section
1385, subdivision (c)(2) mitigating circumstance exists, the
statute “creates a presumption that enhancements will be
dismissed unless that dismissal will endanger public safety.” He
17
contends the court did not comply with this presumption.
However, our Supreme Court recently rejected this
interpretation, concluding that the statute “does not erect a
rebuttable presumption in favor of dismissal that can only be
overcome by a finding that dismissal endangers public safety.”
(People v. Walker (2024) 16 Cal.5th 1024, 1033 (Walker).) “Stated
simply, if the court does not conclude that dismissal would
endanger public safety, then mitigating circumstances strongly
favor dismissing the enhancement. But ultimately, the court
must determine whether dismissal is in furtherance of justice.
This means that, absent a danger to public safety, the presence of
an enumerated mitigating circumstance will generally result in
the dismissal of an enhancement unless the sentencing court
finds substantial, credible evidence of countervailing factors that
‘may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement
is not in furtherance of justice.’ ” (Id. at p. 1036.)
Here, the court found that the evidence demonstrated
Hernandez was “searching for someone to assault and/or kill” on
the day he murdered Genera, and that the murder was
“extremely callous, gang-motivated, [and] unprovoked.” And the
jury found true that the crimes “involved great violence [and]
great bodily harm” and “disclos[ed] a high degree of cruelty,
viciousness, or callousness,” and that Hernandez “engaged in
violent conduct that indicates a serious danger to society.”
(Cal. Rules of Court, rule 4.421(a)(1), (b)(2).) Thus, the record
strongly reflects that the court found that dismissal of any
enhancements would endanger public safety. In light of that
finding, “ ‘it is hard to see how dismissal would further the
interests of justice,’ notwithstanding the applicability of any
18
mitigating factors identified in subdivision (c)(2).” (Walker,
supra, 16 Cal.5th at p. 1033.)
Hernandez argues that the court “did not make a public
safety assessment.” While the court did not use those precise
words, Hernandez fails to identify any legal authority requiring
the court to use the terminology of the statute. Moreover, even if
the court’s statements on the record did not equate to a finding
that dismissal would endanger public safety, its decision to not
dismiss the enhancements necessarily implies such a finding, and
that finding is well supported by the record. (See People v.
Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s sentencing
decision implies requisite subsidiary findings].)
Finally, even if the court did not find that dismissal would
endanger public safety, its statements at sentencing focused
almost exclusively on the aggravating circumstances described
above. The court therefore appeared to find that these
circumstances, which are based on “substantial, credible
evidence,” neutralized any mitigating circumstances such that
dismissal was not in the interest of justice. (Walker, supra, 16
Cal.5th 1024.)
Because “the record does not establish on its face” that the
trial court misunderstood or improperly exercised its sentencing
discretion, we cannot conclude the court abused that discretion.
(Gutierrez, supra, 174 Cal.App.4th at p. 527.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BERSHON, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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