People v. Hernandez

• Decision Date: 02 October 1984
• Docket Number: Cr. F002645
• Citation: 160 Cal.App.3d 725,206 Cal.Rptr. 843
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vick HERNANDEZ, Defendant and Appellant.

Page 843

206 Cal.Rptr. 843

160 Cal.App.3d 725

The PEOPLE, Plaintiff and Respondent, v. Vick HERNANDEZ, Defendant and Appellant.

Cr. F002645.

Court of Appeal, Fifth District, California.

Oct. 2, 1984.

As Modified Oct. 23, 1984.

Hearing Denied Jan. 2, 1985.

[160 Cal.App.3d 732] John Francis Bowman, under appointment by the Court of Appeal, Fair Oaks, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., James T. McNally and James Ching, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ARDAIZ, ^* Associate Justice.

The facts in the instant case are not in contention in this appeal which is directed at the validity of the sentencing. A brief statement of the facts, however, is necessary for an understanding of the issues arising out of the sentencing hearing.

On March 16, 1983, at 12:41 a.m., appellant Hernandez robbed the Adult World Bookstore. The robbery was effectuated with the use of a knife. The total taken by the robbery was approximately $130 in cash. Approximately one hour later, Hernandez entered a Seven-Eleven store. Again, Hernandez was armed with a knife and effectuated a robbery. The second robbery netted Hernandez approximately $50 in cash. In getting away from the Seven-Eleven store, Hernandez was seen leaving in a vehicle which had the left taillight lens broken out. The clerk called the Modesto Police Department and described Hernandez and the car.

At approximately 2:30 a.m. on the same date, a Modesto police officer observed the vehicle. The vehicle was stopped and Hernandez was arrested. When he was arrested, Hernandez was in possession of three $1 bills.

At the Modesto Police Department, Hernandez admitted his involvement in the robberies. He claimed, however, that one Gregory Wagner had driven to each of the stores and provided him with a knife to commit the robberies. Subsequently, Wagner was taken into custody and was found to have $173 in cash in his possession. The charges against Wagner were dismissed for insufficient evidence on March 25, 1983.

On April 11, 1983, an information was filed in Stanislaus County alleging two counts of violation of Penal Code section 211 with the further allegation that Hernandez had used a knife in committing the robberies in violation of Penal Code section 12022, subdivision (b).

On May 12, 1983, Hernandez pled guilty to both counts and admitted use of the knife as charged.

On June 10, 1983, Hernandez had a sentencing hearing before Judge Azevedo of the Stanislaus County Superior Court. At the sentencing hearing of June 10, appellant was present with his counsel, the district attorney was present and the probation department was represented. At the sentencing hearing of June 10, the court made a number of statements which give rise to the basis for this appeal. The court initially noted at the June 10 sentencing hearing that appellant was not eligible for probation ¹ because of the admission of a knife use during a robbery. The district attorney argued for the mid term on count I, a Penal Code section 211 violation, plus one year for the use of the knife and one year consecutive on count II for a total of five years. The probation officer's report alleged the following factors in aggravation: (1) California Rules of Court, rule 421(a)(1), ² that the crime involved a threat of great bodily injury; (2) rule 421(a)(2), that appellant was armed with a deadly weapon at the time of the commission of the offense; (3) rule 421(b)(2), that appellant had numerous adjudications as a juvenile for criminal violations. The probation office found no factors in mitigation in its report.

In response to arguments from defense counsel, the court struck the rule 421(a)(1) factor in aggravation and found that the facts did not support a threat of great bodily injury. The court ruled that rule 421(a)(2) would not be used as a factor in aggravation but only to enhance. The court stated it would use rule 421(b)(2) as a factor in aggravation (the extensive juvenile record). The appellant requested that the court find as a factor in mitigation that he was coerced pursuant to rule 423(a)(4) which was denied. Appellant also requested application of rule 423(a)(5), contending that the defendant had no apparent predisposition to commit the crime and was induced by others to participate, which was granted by the court. Appellant requested application of rule 423(b)(2) that he was suffering from a physical and mental condition at the time of the offense (intoxicated) which was granted by the court. The appellant requested application of rule 423(b)(3), contending there was an early admission of the crime and a plea which was granted by the court. Appellant requested application of rule 423(b)(4) that appellant would have been given probation except that he was statutorily ineligible.

"MR. COLE [defense counsel]: And next to last, 423(b)(4), the defendant would have been given probation but for the fact of being ineligible as a factor in mitigation. I think that applies in this case.

"THE COURT: Yeah, it does. All right, anything else?"

Appellant then argued that the court did not have the power to sentence appellant to a consecutive term, citing People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669. ³ Appellant argued that the court had to sentence appellant to two years (the mitigated term) plus one year (Pen.Code, § 12022, subd. (b)) as an enhancement and a concurrent sentence on count II pursuant to Anjell, supra. The court indicated a lack of familiarity with Anjell and set the sentencing over to the following Monday, June 13, 1983.

On June 13, 1983, court reconvened with all parties present, except there was another public defender representing appellant. The court, at the outset, noted that it had made a statement that the enhancement would be stricken as a factor in aggravation because it could not be used to enhance and aggravate. The court stated it would withdraw its previous comment with respect to striking the enhancement and that the arming allegation would be used to aggravate. The court stated as its reason that the enhancement could be used as a factor in aggravation or as an enhancement and that the court had not yet decided which it would use the arming allegation for. The court noted that it could not use the arming allegation to both enhance and aggravate. The court then referred to Anjell, supra, and indicated that it had read the Anjell case. The court further stated that the Anjell case stood for the proposition that a sentencing judge must state reasons for sentencing consecutively on facts similar to the instant case and did not stand for the proposition that the court could not impose consecutive sentences. This was a correct statement of the holding in Anjell, supra. ⁴

At this point, the court made the following statement concerning the Anjell case:

"So that the record is entirely clear here, I personally called on Friday afternoon, the sentencing judge in that case, Judge Channell, C-h-a-n-n-e-l-l, of the Contra Costa Superior Court, and discussed the case with him, and he advised me that he sentenced the defendant in the first instance, it was reversed. When it came back down, he resentenced the defendant in exactly the same fashion except this time he stated on the record all of his reasons for what he was doing and it was his judgment that that's what the case requires, and the case was never appealed thereafter, so apparently, everybody was satisfied."

"Now, that the record is clear here, I do not believe that People v. Anjell holds as a matter of law that under those circumstances no one can ever be sentenced to a consecutive sentence. I think the record is clear as to what the court is doing and how it relied and considered on the various factors set forth in the probation officer's report, any other source, and as long as those reasons are clear and evidence to a reviewing court, a choice of a consecutive sentence would be appropriate."

The court then proceeded to note that under section 667.5 of the Penal Code, the robbery in question was not a violent felony and, therefore, the appellant could not be sentenced on the second enhancement. The new defense counsel then stated:

"MR. ORENSTEIN: ... I don't want to necessarily go over what Mr. Cole represented to the Court on Friday, but, of course, I am not privy with Judge Channell and what his--

"THE COURT: I realize that is a hearsay statement on my part and his.

"MR. ORENSTEIN: In any event, we are in the dark as to what factors existed in front of that Judge such that the sentencing was consecutive, rather than concurrent. I don't believe--I concur in the Court's comments that I don't think the Court is precluded, of course, but rule 425 which lays out the judicial rules for consecutive sentencing, I don't think in any manner suggests that two robberies, such as we have here, due to the nature that it's not a 654 problem, mandates consecutive sentencing.

"THE COURT: Oh, no."

At this point, the court indicated that it was going to follow the probation recommendation. Defense counsel again indicated that his concern was with the consecutive sentence and argued that the court did not have the discretion to utilize the second Penal Code section 12022, subdivision (b), allegation under count II as a factor in aggravation when it was precluded from sentencing on it as an enhancement.

A dispute then arose as to whether or not the court could use the enhancing allegation of count II to aggravate the term in count I. The court then indicated that it had read and considered the probation report and the following sequence of events occurred.

The court then stated, "Am I correct the defendant, because of the nature of the violation is not eligible for probation? No, he is eligible." The district attorney then noted that appellant was eligible for probation because the weapon used was a knife. The court then proceeded to deny probation on the...