Filed 2/27/13 P. v. Hernandez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037908
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111731)

         v.

OCTAVIO HERNANDEZ,

         Defendant and Appellant.



         Defendant Octavio Hernandez appeals after pleading no contest to second degree
robbery. (Pen. Code, § 211.) 1 He was sentenced to the five-year upper term.
         On appeal, defendant contends that the trial court abused its discretion by
imposing the upper-term sentence. For the reasons stated below, we will affirm the
judgment.
                                                 BACKGROUND
         A.        The Robbery
         On April 14, 2011, Joshua Magaoay was working as a delivery driver for Sweet
Leaf Caregivers, a medical marijuana distributor. He was dispatched to deliver marijuana
to defendant. Magaoay had delivered marijuana to defendant about two weeks earlier.



         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       Magaoay initially attempted to deliver the marijuana to defendant’s home. After
two or three unsuccessful attempts to meet defendant at his home, defendant called and
asked to meet Magaoay at a Safeway parking lot.
       Magaoay arrived at the Safeway parking lot at about 5 or 6 pm. He was alone in
his car. He was in possession of about $1,000 in cash and about one and a half pounds of
marijuana.
       Defendant walked up and got into Magaoay’s car. They discussed the various
product options and defendant made a selection. Magaoay began to weigh out the
product. He looked up and saw defendant pointing a silver handgun at his face.
Defendant said, “I am not playing around.”
       Defendant asked for Magaoay’s car keys, wallet, and cell phone. Magaoay gave
him the car keys, cell phone, and money from the marijuana case, as well as the briefcase
containing the marijuana. Defendant said, “Don’t tell anybody if you [don’t] want
anything to happen to your family.” He then left Magaoay’s car and got into the
passenger side of a waiting car.
       Magaoay knew the difference between handguns and revolvers. He had seen real
guns three or four times before, and the gun defendant had looked real. He could tell it
was a semiautomatic handgun, not a revolver. Because he had never seen a replica gun,
he acknowledged he would not know how to recognize one.
       Customers who are registered with Sweet Leaf Caregivers are required to provide
photo identification, and defendant was subsequently identified by records at Sweet Leaf
Caregivers. Following the incident, Magaoay quit working for Sweet Leaf Caregivers
because he was afraid of getting shot.
       B.     Charges, Plea, and Sentencing
       On October 25, 2011, defendant was charged, by information, with second degree
robbery. (§ 211.) The information alleged that defendant personally used a firearm in
the commission of the robbery. (§ 12022.5, subd. (a).)

                                             2
       On December 14, 2011, defendant pleaded no contest to the robbery in exchange
for dismissal of the firearm use allegation. At the sentencing hearing on January 11,
2012, the trial court imposed the five-year upper term for the robbery. The trial court
also imposed a $1,200 restitution fine (§ 1202.4, subd. (b)), but it later reduced the
restitution fine to $1,000.2
                                      DISCUSSION
       Defendant contends the trial court abused its discretion by imposing the five-year
upper term sentence for robbery. Defendant claims that the trial court erred because the
aggravating circumstances it found “are either elements of the charged crime or are
unsupported by substantial evidence.”
       A.     Proceedings Below
       Following his plea, defendant told the probation officer that some friends had
explained how to commit the robbery and that his original plan included a friend who had
“ ‘backed out’ at the last minute.” Defendant claimed he used a fake gun and that “[i]t
was never his intention to hurt his family or the victim.” He expressed remorse “for the
stress and inconvenience” he had caused his parents, and he apologized to the victim “for
the inconvenience he caused.”
       The probation report listed the following circumstances in aggravation under
California Rules of Court, rule 4.421(a)3: (1) “The crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,



       2
         The trial court calculated the original $1,200 restitution fine under the formula of
section 1202.4, subdivision (b)(2), using the $240 minimum fine in effect at the time of
sentencing. However, at the time of defendant’s offense, the minimum restitution fine
was $200. (Stats. 2010, ch. 351, § 9, (A.B. 819).) In the opening brief, defendant
claimed that imposition of the $1,200 restitution fine violated the constitutional
prohibition against ex post facto laws. On August 3, 2012, the trial court reduced the fine
to $1,000. In his reply brief, defendant withdrew his argument as moot.
       3
         All further rule references are to the California Rules of Court.

                                              3
viciousness, or callousness;” (2) “[t]he defendant was armed with or used a weapon at the
time of the commission of the crime;” (3) “[t]he victim was particularly vulnerable;”
(4) “[t]he defendant induced others to participate in the commission of the crime or
occupied a position of leadership or dominance of other participants in its commission;”
(5) “[t]he manner in which the crime was carried out indicates planning, sophistication,
or professionalism;” and (6) “[t]he crime involved an attempted or actual taking or
damage of great monetary value.” The probation report also listed one factor in
aggravation under rule 4.421(b): “The defendant has engaged in violent conduct that
indicates a serious danger to society.” The probation report listed one circumstance in
mitigation under rule 4.423(b)(1): “The defendant has no prior criminal record.”
       At the sentencing hearing, the prosecutor advocated for imposition of the upper
term. The prosecutor reminded the court that defendant had been allowed to plead to the
robbery charge without the personal firearm use allegation, which would have added time
to his sentence.4
       Trial counsel advocated for imposition of the low term. He reiterated the
favorable parts of the probation report, arguing that it was “never [defendant’s] intention
to hurt the victim” and claiming that “[h]e used a fake gun.” He disputed that any of the
factors in aggravation applied. He claimed that the crime did not involve great violence
or a threat of great bodily harm or the use of a weapon because defendant “used a fake
gun.” He asserted that the victim was not particularly vulnerable and that while another
person was involved, defendant did not induce others to participate. He argued that the
crime did not involve planning, sophistication, or professionalism because “it was
actually a very dumb and stupid plan,” since Sweet Leaf Caregivers had defendant’s
name and address. Trial counsel also argued that defendant did not engage in violent

       4
         The prosecutor asserted that the firearm use allegation “would have added ten
years to this sentence.” In fact, section 12022.5, subdivision (a) permits the trial court to
impose a term of 3, 4, or 10 years.

                                              4
conduct. Finally, he reminded the court that defendant had no criminal record and argued
that the “early resolution” of the case was another mitigating circumstance.
       The trial court gave defendant an opportunity to speak. Defendant apologized to
his family and to the victim. He reiterated his claim that he had no intent to harm the
victim and his claim that “the gun wasn’t real.” The trial court responded, “Well, I don’t
know if the gun was real or not. . . . I assume the People don’t think they can prove it
was real. I don’t think any firearm was ever located, real or not real.”
       The trial court then made findings concerning the circumstances in aggravation.
It found that the crime involved great violence or a threat of great bodily harm
(rule 4.421(a)(1)), that defendant was armed during the commission of the crime
(rule 4.421(a)(2)), and that the manner in which the crime was carried out indicated
planning, sophistication, or professionalism (rule 4.421(a)(8)). The trial court also found
that defendant “has engaged in violent conduct indicating he is a serious danger to
society.” (See rule 4.421(b)(1).)
       The trial court found defendant’s early acceptance of responsibility was a
mitigating circumstance (rule 4.423(b)(3)), and it found that defendant did not have “any
criminal history” (rule 4.423(b)(1)). The trial court specified that these circumstances did
not outweigh the aggravating circumstances: “[J]ust based on the crime alone, the Court
feels five years is an appropriate sentence.”
       B.     Analysis
       “When a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court.” (§ 1170, subd. (b).) “In exercising his or her discretion in
selecting one of the three authorized prison terms referred to in section 1170(b), the
sentencing judge may consider circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision.” (Rule 4.420(b).)



                                                5
       “ ‘Sentencing courts have wide discretion in weighing aggravating and mitigating
factors [citations], and may balance them against each other in “qualitative as well as
quantitative terms.” ’ ” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) An
appellate court should not reweigh the circumstances in aggravation and mitigation, but
must consider only whether “the court exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v.
Jordan (1986) 42 Cal.3d 308, 316.) Even a single circumstance in aggravation may
justify the selection of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 730;
People v. Kelley (1997) 52 Cal.App.4th 568, 581; see People v. Nevill (1985) 167
Cal.App.3d 198, 202 [a single aggravating factor can justify upper term if it “outweighs
the cumulative effect of all mitigating factors”].)
              1.     Violence and Threat of Great Bodily Harm
       Defendant first contends that the trial court erred by finding that the crime
involved great violence or a threat of great bodily harm. (Rule 4.421(a)(1).) Defendant
argues that the use or threatened use of force is an element of robbery and that he did not
use any actual violence in committing the robbery.
       “A fact that is an element of the crime upon which punishment is being imposed
may not be used to impose a greater term.” (Rule 4.420(d).) An aggravating
circumstance is a fact that makes the offense “ ‘distinctively worse than the ordinary.’ ”
(People v. Black (2007) 41 Cal.4th 799, 817.)
       Although robbery necessarily requires the use of force or fear, prior cases have
held that a defendant’s “threatening conduct” during a robbery may support a finding that
the crime involved great violence or a threat of great bodily harm within the meaning of
rule 4.421(a)(1). (See People v. Garcia (1995) 32 Cal.App.4th 1756, 1775-1776
(Garcia), and cases cited.) “ ‘[T]he elements of force and fear do not need to be extreme
for purposes of constituting robbery. [Citations.] [¶] This means that the threat of



                                              6
bodily harm can frequently exceed the minimum requirement necessary for purposes of
establishing robbery.’ [Citation.]” (Id. at p. 1776.)
       Arguments similar to defendant’s were rejected in People v. Cortez (1980) 103
Cal.App.3d 491, where Cortez was sentenced to the five-year upper term for robbery.
During the robbery, he had “poked a screwdriver” into the victim’s ribs and told the
victim that he had a friend outside with a shotgun. (Id. at p. 493.) On appeal, he
challenged his upper term sentence, contending that the trial court erred by relying on the
“ ‘threatening manner’ in which the screwdriver was used and the ‘threatening language’
of a friend outside with a shotgun.” (Id. at p. 496.) Like defendant, Cortez argued that
the threats “necessarily related to the element of fear” required for robbery. (Ibid.) The
court disagreed, explaining, “While robbery is the taking of property in the possession of
another, from his person or immediate presence and against his will, accomplished by
means of force or fear, the particular means of force or the manner in which fear is
imparted is not an element of robbery. The means of accomplishing the crime are facts
relating to the crime within the meaning of [former] rule 421(a).” (Ibid.; see also People
v. Reid (1982) 133 Cal.App.3d 354, 369 (Reid) [trial court did not err by finding that
robbery was aggravated because it involved a threat of great bodily harm, despite
defendant’s use of a toy gun].)
       In the present case, defendant pointed a handgun at the victim’s face, told him that
he was “not playing around,” and threatened the victim’s family. Even if defendant’s
assertion about using a replica gun was true, the victim believed he was being threatened
with a real gun. The trial court did not abuse its discretion by finding that defendant’s
threatening conduct “ ‘exceed[ed] the minimum requirement necessary for purposes of
establishing robbery’ ” (Garcia, supra, 32 Cal.App.4th at p. 1776) and thus that it
constituted a circumstance in aggravation under rule 4.421(a)(1).




                                             7
              2.      Use of a Weapon
       Defendant contends the trial court erred by finding, as a circumstance in
aggravation, that defendant was armed during the commission of the crime.
(Rule 4.421(a)(2).) He contends there was insufficient evidence that he used a real gun
“as opposed to a firearm replica.”
       At the preliminary hearing, the victim testified that he believed that defendant
pointed a real gun at him, and the magistrate held defendant to answer on the firearm use
allegation, indicating it found probable cause to believe that the gun was real. Although
the trial court later noted that it did not “know if the gun was real or not,” it impliedly
found that the gun was real. (Italics added.) Based on the victim’s testimony – including
the fact that he had seen real guns before – the trial court could reasonably find that the
gun was not merely a replica.
       However, even if defendant used a replica gun rather than an operable firearm, the
trial court did not abuse its discretion by finding that defendant was armed with or used a
weapon within the meaning of rule 4.421(a)(2). We agree with the Attorney General that
the use of a replica or inoperable weapon is a circumstance in aggravation within the
meaning of rule 4.421(a)(2) when the victim believes the weapon is real. In such a case,
whether operable or not, the weapon is being used “[t]o induce fearful compliance.”
(People v. Lewis (1991) 229 Cal.App.3d 259, 265.)
       Our conclusion is consistent with cases holding that a weapon need not be
operable for purposes of section 12022.5’s firearm use enhancement or for
section 12022’s enhancement for being armed with a deadly weapon. (See, e.g.,
People v. Jackson (1979) 92 Cal.App.3d 899, 903 (Jackson); People v. Nelums (1982)
31 Cal.3d 355, 360 (Nelums).) These statutes include inoperable weapons because as
long as the victim believes that the weapon is operable, there is a possibility that the
defendant’s use or display of the weapon “may stimulate resistance” and thereby create
an additional “potential for harm.” (Nelums, supra, at p. 360.)

                                               8
       As with an inoperable weapon, the use of a replica firearm aggravates the
circumstances of the crime. Even though the weapon cannot be used, “[t]he danger
remains that the reaction by the victim or some third person to the appearance of the gun
will cause harm to befall someone.” (Jackson, supra, 92 Cal.App.3d at p. 903, fn.
omitted.)
       In sum, whether the gun was real or an inoperable replica, the trial court did not
abuse its discretion by finding that defendant was armed with or used a weapon so as to
aggravate his crime under rule 4.421(a)(2).
              3.     Evidence of Planning
       Defendant also challenges the trial court’s finding that the manner in which
the crime was carried out indicated planning, sophistication, or professionalism.
(Rule 4.421(a)(8).) At the sentencing hearing, the trial court explained its finding on this
circumstance in aggravation: “[H]e arranged to meet the victim, called him, armed
himself with some kind of a firearm, and knew the victim would be carrying both money
as well as drugs.”
       Defendant acknowledges “there is some evidence of planning” in the record, but
he contends “there is not the slightest hint of sophistication or professionalism.”
However, the trial court was not required to find that the crime involved sophistication or
professionalism in addition to planning. The rule is stated in the disjunctive: it is a
circumstance in aggravation if “[t]he manner in which the crime was carried out indicates
planning, sophistication, or professionalism.” (Rule 4.421(a)(8), emphasis added.)
       Defendant also argues, as he did below, that the crime was poorly planned, since
his name and address were on file with Sweet Leaf Caregivers, leading him to be easily
identified and apprehended. However, a trial court may rely on planning as an
aggravating circumstance even when the defendant’s plan was not particularly clever.
For instance, the court in People v. Forster (1994) 29 Cal.App.4th 1746 upheld an upper
term sentence for the defendant’s conviction of driving while intoxicated because there

                                              9
was evidence he had planned the offense. The defendant had gone to Mexico specifically
to drink alcohol, and he was arrested when he tried to cross back into the United States
through an inspection station at the border, still intoxicated. (Id. at p. 1759; see also
People v. Lai (2006) 138 Cal.App.4th 1227, 1259 [finding of planning upheld despite the
fact that the defendant was uneducated, illiterate, and “not a particularly sophisticated
person”].)
       Here, defendant planned the robbery in advance, making arrangements to meet the
victim in the Safeway parking lot, arming himself with either a real or real-looking
firearm, and arranging for a getaway driver. Even though defendant’s plan may not have
been very well thought-out with respect to concealing his identity, the trial court did not
abuse its discretion by finding that the crime involved planning within the meaning of
rule 4.421(a)(8).
              4.     Violent Conduct
       Defendant also contends that the trial court erred by finding that he engaged in
violent conduct indicating he is a serious danger to society. (Rule 4.421(b)(1).) He
argues that violence is inherent in a robbery and that he had no criminal history, “let
alone any history involving violent conduct.”
       Even assuming that the trial court erred by finding this circumstance in
aggravation, we would find no reversible error in light of our previous analysis of the
other circumstances in aggravation. “ ‘When a trial court has given both proper and
improper reasons for a sentence choice, a reviewing court will set aside the sentence only
if it is reasonably probable that the trial court would have chosen a lesser sentence had it
known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38
Cal.App.4th 427, 433-434, quoting People v. Price (1991) 1 Cal.4th 324, 492.) And
generally, “a demand for resentencing is not appropriate when there is misplaced reliance
on a single aggravating factor.” (Reid, supra, 133 Cal.App.3d at p. 372.)



                                              10
       As explained above, the trial court did not abuse its discretion by finding the other
three cited circumstances in aggravation, all of which had evidentiary support in the
record. The trial court also specified that it felt the upper term sentence was appropriate
“just based on the crime alone.” Thus, it is not reasonably probable that the trial court
would have imposed a midterm or lower term sentence even if it erred by finding that
defendant engaged in violent conduct indicating he is a serious danger to society.
                                     DISPOSITION
       The judgment is affirmed.




                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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