Filed 10/15/24 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082439
v. (Super.Ct.No. FWV20004537)
ROBERT CHRISTIAN HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed with directions.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant and appellant Robert Christian Hernandez was convicted, by a jury, of
assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 1)1 and
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). It was also found true
that defendant personally used a firearm in the commission of count 1 (§ 12022.5, subds.
(a)-(d)) and suffered prior convictions qualifying as a strike offense and a serious prior
felony (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to an
aggregate term of 28 years in state prison, which included the imposition of a
consecutive, 10-year enhancement for personal use of a firearm, as well as the imposition
of various fines and fees.
On appeal, defendant contends that (1) the trial court abused its discretion by
failing to dismiss his firearm enhancement pursuant to section 1385; (2) the trial court
violated his due process rights by imposing fines and fees without assessing his ability to
pay; and (3) there is a calculation error with respect to his award of custody credits. We
conclude that defendant has forfeited his claims of error with respect to the trial court’s
failure to dismiss his firearm enhancement pursuant to section 1385 and the imposition of
fines and fees, but we agree that defendant is entitled to an award of additional custody
credits. As such, we modify the judgment to award an additional 811 days of custody
credit and affirm the judgment as modified.
1 Undesignated statutory references are to the Penal Code.
2 II. FACTS AND PROCEDURAL HISTORY
A. Factual Background2
Defendant is an active member of a criminal street gang. In October 2020,
defendant and several members of his gang became involved in an altercation with three
other individuals. During this incident, defendant warned the three individuals to stand
down because they were in territory claimed by defendant’s gang. Defendant also
brandished a firearm and pointed it at one of the individuals. Eventually, one of the
individuals was shot and killed by a fellow gang member who was present with the
defendant.
As a result of this incident, defendant was convicted by a jury of assault with a
semiautomatic firearm (§ 245, subd. (b); count 1) and possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 2). Additionally, the jury found true allegations that
defendant’s offenses were committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant
personally used a firearm in the commission of count 1 (§ 12022.5, subds. (a)-(d)). In a
bifurcated proceeding, the trial court also found true allegations that defendant had
suffered a prior conviction qualifying as a strike offense (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), as well as a prior conviction qualifying as a serious felony (§ 667, subd.
(a)).
2 The background is taken verbatim from our Opinion in defendant’s first appeal (People v. Hernandez (Nov. 14, 2022) E077321 [nonpub opn.]) and provided only for context.
3 The trial court sentenced defendant to an aggregate term of 28 years in state
prison. Specifically, the trial court imposed the upper term of nine years on count 1
(§ 245, subd. (b)), doubled to 18 years for the strike prior (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), and enhanced by the upper term of 10 years for the personal use of a
firearm (§ 12022.5, subds. (a)-(d)).
The trial court also imposed a consecutive upper term on count 2 (§ 29800,
subd. (a)(1)), as well as the gang enhancements for both counts (§ 186.22, subd. (b)(1))
but stayed the execution of the sentence on these matters (§ 654). Finally, the trial court
struck the enhancement for defendant’s prior serious felony conviction (§ 667,
subd. (a)(1)) in the interests of justice (§ 1385).
B. Initial Appeal, Remand, and Resentencing
Defendant appealed from the judgment, and we concluded that defendant’s
sentence, as well as the true findings with respect to the gang enhancements, should be
vacated in light of amendments made to sections 1170, subdivision (b)3 and 186.22.4 We
remanded the matter with directions for the trial court to (1) give the People an
3 Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b) to provide for the middle term of imprisonment as the presumptive sentence and prohibit imposition of the upper term sentence unless there are aggravating circumstances that have been found true beyond a reasonable doubt. (People v. Flores (2022) 75 Cal.App.5th 495, 500, overruled in part on other grounds by People v. Lynch (2024) 16 Cal.5th 730, 769; § 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.)
4 While defendant’s initial appeal was pending, the Legislature amended section 186.22 to “essentially ad[d] new elements to the substantive offense and enhancements” in the statute. (People v. E.H. (2022) 75 Cal.App.5th 467, 479; § 186.22, subds. (e), (f), (g); Stats. 2021, ch. 699, § 3.)
4 opportunity to retry the enhancements and prove the truth of any additional circumstances
in aggravation not already found true beyond a reasonable doubt, and (2) resentence the
defendant at the conclusion of any retrial or upon the People’s election not to retry these
matters. (People v. Hernandez, supra, E077321.) Upon remand, the People elected not
to retry the enhancements pursuant to section 186.22, and further elected not to present
any additional evidence to prove the existence of additional aggravating factors not
already found true beyond a reasonable doubt in defendant’s prior trial.
At the resentencing hearing, defendant filed a Romero5 motion inviting the trial
court to dismiss his strike offense in the interests of justice pursuant to section 1385;
argued that the firearm enhancement for personal use of a firearm should not be imposed
pursuant to section 654;6 and argued that the factors in mitigation outweighed any
aggravating factors such that the aggravated term of imprisonment should not be
imposed.7 Despite these requests, the trial court imposed the same sentence of 28 years
in state prison, comprised of the upper term of nine years on count 1 (§ 245, subd. (b)),
5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
6 Specifically, defense counsel argued: “in this case there’s the use of the firearm enhancement that added 10 years if the Court were to apply that. The charge in this case was 245 assault with a firearm. The assaultive behavior” was “the displaying of the weapon,” “and I think that to add the firearm use enhancement is a 654 issue. [¶] . . . [¶] So there is no other behavior other than the displaying of the weapon, and I think that to add the 10-year enhancement for the use of a firearm when that’s the use of a firearm that resulted in the underlying conviction would be a dual use of facts.”
7 Counsel identified multiple circumstances in mitigation identified in Rules of Court, rule 4.423 and concluded by stating: “So, we’re asking the aggravated factors not be found and outweigh the mitigating factors such that the aggravated term apply . . . .”
5 doubled to 18 years for the strike prior (§667, subds. (b)-(i); § 1170.12, subds. (a)-(d)),
and enhanced by the upper term of 10 years for the personal use of a firearm (§ 12022.5,
subds. (a)-(d))8.
With respect to imposition of the aggravated term on count 1, the trial court
explained: “[T]he fact that concerns me the most is not so much [defendant’s] prior
record as such but it’s the fact that his—the last couple years before this conviction
reflect really escalating criminality and it’s the fact that he’s on parole or being
supervised for a lot of gun offenses when he’s got the gun in the car and produces the
gun. It’s exactly why we don’t want guns to be around because these are the sorts of
dangerous circumstances or these are the sort of tragedies that ensue . . . from people with
guns who are not supposed to have them.”
The court continued: “I think for the reasons I stated I think the facts in particular
weighs very heavily for me the fact that he was on parole for a gun charge and committed
it—was sentenced very recently before the enactment of this crime and then produces a
gun, . . . just the facts of the case which were in evidence certainly reflect the
dangerousness of that behavior. [¶] So based on the aggravating factors . . . , I am going
to impose the upper term of nine years on Count 1.”
With respect to imposition of the enhancement for personal use of a firearm, the
trial court explained: “I am going to impose the 10-year enhancement for the use of a
firearm. Again, the firearm is the big dangerous factor in this crime, so I believe that it is
8 The trial court also imposed the upper term of three years on count 2 (§ 29800, subd. (a)(1)) but stayed execution of punishment pursuant to section 654.
6 appropriate to impose that additional punishment particularly given the defendant’s
history with firearms that’s admitted and undisputed.”
Finally, the parties briefly discussed the fact that defendant had raised a due
process argument regarding fines and fees in his initial appeal but noted that we did not
reach the issue given our disposition requiring a full resentencing. In response, defendant
did not renew his claim of any inability to pay and did not direct the trial court to any
evidence on that point. As a result, the trial court imposed the same $70 court
construction and operations fee it had previously imposed; however, it reduced the
original restitution fine of $5,000 down to $300.
III. DISCUSSION
A. Failure to Dismiss the Firearm Enhancement Under Section 1385
The primary argument raised in this appeal is that the trial court erred by failing to
dismiss defendant’s enhancement for personal use of a firearm (§ 12022.5, subds. (a)-(d))
in the interests of justice pursuant to section 1385. We conclude that the issue has been
forfeited and, as a result, cannot be the basis for reversal on appeal.
1. General Legal Principles and Standard of Review
“Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended
section 1385 to include subdivision (c). [Citation.] Section 1385(c)(1) provides that
‘[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so . . . .’ [Citation.] Section 1385(c)(2) provides . . . : ‘In
exercising its discretion under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of the mitigating
7 circumstances in subparagraphs (A) to (I) are present. Proof of 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. . . . One of the mitigating circumstances is: ‘The application of an enhancement
could result in a sentence of over 20 years. In this instance, the enhancement shall be
dismissed.’ ” (People v. Mendoza (2023) 88 Cal.App.5th 287, 295; § 1385, subd.(c).)
Dismissal in the interests of justice under section 1385 constitutes an exercise of
discretion, subject to the principles set forth in the statute. (People v. Anderson (2023)
88 Cal.App.5th 233, 239-240 [“The dismissal shall occur but only if, in exercising its
discretion and giving great weight to certain factors, the court finds dismissal is in the
interests of justice or would not endanger public safety.”], review granted Apr. 19, 2023,
S278786; People v. Walker (2022) 86 Cal.App.5th 386, 397 [“As the plain text of section
1385 repeatedly emphasizes, its purpose is to grant trial court discretion to dismiss
enhancements.”].) Thus, “we review for abuse of discretion the trial court’s decision not
to strike a sentence enhancement under section 1385, subdivision (a).” (Mendoza, supra,
88 Cal.App.5th at p. 298.) The standard is “highly deferential” and the trial court’s
“ ‘ “exercise of that discretion ‘must not be disturbed on appeal except on a showing that
the court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” ’ ” (Ibid.)
2. Forfeiture
The People suggest that defendant’s claim of error with respect to the failure to
dismiss under section 1385 has been forfeited. We agree.
8 “ ‘A party in a criminal case may not, on appeal, raise “claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing choices” if the
party did not object to the sentence at trial. . . . The rule applies to “cases in which the
stated reasons allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular sentencing factor, misweighed
the various factors, or failed to state any reasons or give a sufficient number of valid
reasons . . . .” ’ ” (People v. Scott (2015) 61 Cal.4th 363, 406.) Thus, “any failure on the
part of a defendant to invite the court to dismiss under section 1385… waives or forfeits
his or her right to raise the issue on appeal.” (People v. Carmony (2004) 33 Cal.4th 367,
375-376.) And this rule has been specifically applied to the failure to request dismissal of
an enhancement under the amended version of section 1385 now in effect. (People v.
Coleman (2024) 98 Cal.App.5th 709, 724 [defendant’s claim that an enhancement should
be stricken pursuant to the amended section 1385 forfeited for failure to make request at
time of sentencing].)
Here, both parties acknowledge on appeal that defendant never invited the trial
court to exercise its discretion to dismiss the firearm enhancement pursuant to section
1385. While defendant requested the trial court decline to impose the firearm
enhancement pursuant to section 654, he did not suggest that dismissal was also
appropriate under section 1385. As a result, the parties never argued the issue of whether
the “great weight” of mitigating circumstances warranted dismissal under section 1385,
and the trial court never discussed what findings it would have made under the statute
when articulating its sentencing choices.
9 Defendant suggests that the argument has not been forfeited because section 1385,
subdivision (c)(2)(C) mandates dismissal whenever the application of an enhancement
results in a sentence of over 20 years and, as a result, the issue presents a “pure question
of law.” However, this argument “has been rejected by every court that has considered
it” (People v. Cota (2023) 97 Cal.App.5th 318, 335), including this court (Mendoza,
supra at 295-300). Instead, as we have already explained, whether an enhancement
should be dismissed under section 1385 constitutes an exercise of discretion by the trial
court.
Defendant also suggests that the argument has not been forfeited because “[a]t
resentencing, [defendant] made the trial court well aware of the facts underlying the
mitigating factors” when “arguing the trial court should not impose the upper term on the
base count.” However, “the trial court has no sua sponte duty” (People v. Lee (2008)
161 Cal.App.4th 124, 129 ) and “no obligation to make a ruling, under section 1385”
(People v. Carmony (2004) 33 Cal.4t 367, 375). Instead, a defendant has the right to “
‘invite the court to exercise its power by an application’ ” and, if the defendant does so, “
‘the court must consider evidence offered by the defendant in support of his assertion that
the dismissal would be in furtherance of justice.’ ” (Carmony, at p. 375.) Thus, even if
the trial court was aware of facts that could support the exercise of discretion under
section 1385, the trial court was not required to consider whether dismissal would be
appropriate under the statute or make any findings related to the application of the statute
absent an invitation to do so by the parties.
10 Because it is undisputed that the parties never invited the trial court to exercise its
discretion under section 1385 to dismiss defendant’s firearm enhancement and nothing in
the record suggests the trial court considered section 1385 when imposing the
enhancement, we must conclude the argument has been forfeited. We cannot assess
whether the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner where the trial court was never asked to and did not exercise its discretion
in the first instance.9
3. The Appellate Record Does Not Establish Ineffective Assistance of Counsel
Anticipating that his claim regarding the failure to dismiss the firearm
enhancement pursuant to section 1385 would be deemed forfeited, defendant argues that
we should still reverse because his trial counsel’s failure to invite the trial court to
exercise its discretion under section 1385 constituted ineffective assistance of counsel.
We conclude that the record is inadequate to grant relief on direct appeal.
“A defendant seeking relief on the basis of ineffective assistance of counsel must
show both that trial counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is reasonably probable a
more favorable determination would have resulted in the absence of counsel’s failings.”
(People v. Price (1991) 1 Cal.4th 324, 386 (Price).) When examining whether trial
9 For this reason, we decline the People’s invitation to consider whether, even in the absence of forfeiture, defendant’s claims would fail on the merits. While the trial court made sentencing choices and statements that reflect the view defendant should receive a lengthy sentence, the record is not adequate to determine how the trial court may have weighed the various factors under the guidance set forth in section 1385 if it had been invited to do so.
11 counsel failed to act in a manner to be expected of a reasonably competent attorney, “a
reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance.”
(People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Lucas (1995) 12 Cal.4th 415, 443
[“[W]e presume counsel’s decision not to raise [a] claim was a reasonable, tactical one
unless the record affirmatively demonstrates otherwise.”].)
Thus, “[i]t is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance only
if (1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (People v.
Mai, supra, 57 Cal.4th at p. 1009; People v. Lopez (2008) 42 Cal.4th 960, 972 [“[C]laims
of ineffective assistance of counsel should be raised on habeas corpus, not on direct
appeal” because “ ‘the failure to object will rarely establish ineffective assistance.’ ”].)
Here, the record is simply inadequate to determine the merits of defendant’s claim
regarding ineffective assistance on direct appeal. As is widely recognized, “[t]rial
counsel is not required to make futile objections, advance meritless arguments or
undertake useless procedural challenges merely to create a record impregnable to assault
for claimed inadequacy of counsel.” (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
Thus, “[c]ounsel does not render ineffective assistance by failing to make motions or
objections that counsel reasonably determines would be futile.” (Price, supra, 1 Cal.4th
12 at p. 387.) The record discloses that the trial court repeatedly expressed its view that
defendant’s use of a firearm was particularly egregious and deserving of punishment at
the time of the resentencing hearing.10 Thus, an objectively reasonable trial attorney
could have reasonably concluded that asking for leniency in the form of dismissing the
firearm enhancement would be futile and that it would be a more effective strategy to
focus the trial court’s attention on other arguments that could reduce defendant’s
sentence. Because the record on appeal does not disclose trial counsel’s actual
motivations and because trial counsel’s decision not to raise this specific issue could have
been objectively reasonable under the circumstances, defendant has not met his burden to
show entitlement to reversal based upon ineffective assistance of counsel on direct
appeal.11
B. Failure to Assess Defendant’s Ability to Pay Fines and Fees
Defendant also argues that the trial court erred by imposing $370 in fines and fees
without conducting an assessment of defendant’s financial ability to pay. We conclude
that this argument has also been forfeited.
10 In fact, the trial court specifically expressed the belief that imposition of the firearm enhancement was particularly appropriate under the facts of this case, stating: “I am going to impose the 10-year enhancement for the use of a firearm. Again, the firearm is the big dangerous factor in this crime, so I believe that it is appropriate to impose that additional punishment particularly given the defendant’s history with firearms that’s admitted and undisputed.”
11 Defendant has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel, which we ordered to be considered with this appeal for the purpose of determining whether an order to show cause should issue. We have concluded that petitioner has made a prima facie showing sufficient to warrant issuance of an order to show cause on his petition, and we address the matter by separate order.
13 In People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), the Court of Appeal
“held that a trial court must ‘conduct an ability to pay hearing and ascertain a defendant’s
present ability to pay’ before requiring a defendant to pay assessments . . . or a restitution
fine . . . .” (People v. Jones (2019) 36 Cal.App.5th 1028, 1030.) However, the general
rule is that “a defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge those fines, fees and assessments
on appeal.” (People v. Greeley (2021) 70 Cal.App.5th 609, 624.) And this rule of
forfeiture applies to challenges based upon the purported inability to pay under Duenas.
(Greeley, at p. 624 [defendant forfeited claim of error under Duenas by failing to object
or request an ability-to-pay hearing at sentencing]; People v. Keene (2019)
43 Cal.App.5th 861, 864 [same].)
In this case, the issue has clearly been forfeited. At defendant’s resentencing
hearing, the trial court expressly indicated it intended to impose the same fines and fees
previously imposed and asked counsel if there was any need to revisit the issue. In
response, defense counsel noted that defendant’s ability to pay had been raised as a claim
of error in defendant’s first appeal. However, when the trial court indicated that our
opinion in that appeal never reached the merits of the issue, defense counsel did not
renew his objection; did not indicate an intent to contest any fines, fees, or assessments;
did not request an ability-to-pay hearing; and did not otherwise direct the court to any
evidence to suggest defendant would be unable to pay the $370 of fees and assessments
the trial court intended to impose. Absent a timely and specific objection, the claim of
error has been forfeited.
14 On appeal, defendant contends that counsel’s statement that the issue had been
raised in defendant’s initial appeal was sufficient to preserve the issue because it “put the
trial court on notice of the need to determine [defendant’s] ability to pay before imposing
fines and fees.” However, as multiple published decisions have clarified, “a defendant
must in the first instance contest in the trial court his or her ability to pay the fines, fees
and assessments to be imposed and at a hearing present evidence of his or her inability to
pay . . . .” (People v. Castellano (2019) 33 Cal.App.5th 485, 490; People v. Santos
(2019) 38 Cal.App.5th 923, 934; [“[I]t is the defendant’s burden to demonstrate an
inability to pay, not the prosecution’s burden to show the defendant can pay, as the
Duenas decision might be read to suggest.”]; People v. Kopp (2019) 38 Cal.App.5th 47,
96 [same].) Merely mentioning that an argument had been made by appellate counsel in
a prior proceeding does not communicate to the trial court an intent to renew that
argument or contest the issue at the time of resentencing, especially where there is no
request to present any evidence to support a claim of inability to pay.12 We conclude
defendant’s argument has been forfeited and decline to reverse on this basis.
C. Defendant Is Entitled to a Recalculation of Custody Credits
Defendant contends and the people concede that the trial court made a calculation
error in awarding custody credits to defendant. We agree that defendant is entitled to an
12 Even in the absence of forfeiture, we fail to see how this record could support defendant’s claim of error. Because it was defendant’s burden to present evidence and make a showing that he could not pay the fines or fees at issue, defendant could not meet this burden without directing the trial court to evidence in support of his assertion of an inability to pay.
15 additional 811 days of actual custody credit beyond the amount reflected in the abstract
of judgment.13 We briefly note that “[t]he most expeditious and . . . appropriate method
of correction of errors of this kind is to move for correction in the trial court.” (People v.
Culpepper (1994) 24 Cal.App.4th 1134, 1138; § 1237.1.) Nevertheless, in the interests of
justice and judicial economy, we shall modify the judgment to clarify the amount of
custody credits awarded and order that the abstract of judgment be corrected.
IV. DISPOSITION
The judgment is modified to reflect that defendant is awarded an additional 811
days of actual custody credit, for a total of 1,098 days. The trial court is ordered to
correct the abstract of judgment to reflect this modification and further ordered to
forward the amended abstract of judgment to the Department of Corrections. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
13 As the People point out, it is unclear from the trial court’s pronouncement of judgment whether the trial court intended that defendant’s credits be increased and recalculated at the time of resentencing. However, the amended abstract of judgment did not include any additional credits.