No. F057033.

THE PEOPLE, Plaintiff and Respondent, v. ANDREW QUINTON HERNANDEZ, Defendant and Appellant.

Court of Appeals of California, Fifth District.

Attorney(s) appearing for the Case

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.



WISEMAN, Acting P.J.

Andrew Quinton Hernandez shot Jon Summons in the head with a shotgun, sawed his feet and lower legs off so the body would fit in a metal box in the back of Summons's truck, drove the body to the Kern River, and dumped it in. While in custody, he escaped from a police van and was briefly at large before being reapprehended. He was convicted of second degree murder, being a felon in possession of a firearm and ammunition, and escape by force. The aggregate sentence, which involved application of the three strikes law and other sentence-enhancement statutes, was 127 years to life. On appeal, Hernandez claims the court improperly excluded evidence of a third party's culpability and failed to obtain a proper waiver before allowing testimony to be read back to the jury outside his presence. He also claims the court made a number of sentencing errors and mistakenly recorded a verdict on an alternative count the jury did not reach. We order the judgment modified to correct sentencing errors and to delete the verdict on the alternative count and direct the court to make the necessary amendments to the abstract of judgment. The corrections result in a reduction of the sentence to 121 years to life. As modified, the judgment is affirmed.


The district attorney filed a five-count information on July 8, 2008. Count one was first degree murder (Pen. Code, § 187, subd. (a))1 with sentence-enhancement allegations of personally discharging a firearm causing death (§ 12022.53, subd. (d)) and, alternatively, personally using a firearm (§ 12022.5, subd. (a)). Count two was being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) Count three was being a felon in possession of ammunition. (§ 12316, subd. (b).) Count four was escape by the use of force. (§ 4532, subd. (b)(2).) Count five, an alternative to count four, was escape. (§ 4532, subd. (b)(1).) Each count alleged that Hernandez committed two prior serious felonies, namely, two robberies he committed as a juvenile. These were alleged as predicates of three strikes sentences, pursuant to section 667, subdivisions (c) to (j), and section 1170.12, subdivisions (a) to (e). They were also alleged as predicates of five-year enhancements, pursuant to section 667, subdivision (a). Each count also alleged, pursuant to section 667.5, subdivision (b), that Hernandez had been convicted of one prior felony resulting in a prison term, namely, possession of a controlled substance (Health & Saf. Code, § 11377).

The trial began on October 30, 2008. Jon Summons's girlfriend, Donna Hall, testified that she saw Summons alive for the last time on the morning of June 7, 2006. Grace Gossman testified that on the night of June 7, 2006, at around 11:30 p.m., she heard three gunshots coming from the direction of Debbie McKinney's property, which is a block away from Gossman's house in Lake Isabella. She thought it sounded like a shotgun. Summons lived in a trailer behind McKinney's house; he had been the boyfriend of McKinney's mother, Melissa McKinney, who previously lived in the house and who died in 2005. Hernandez was dating Debbie McKinney.

A man named Roger McMahan, having argued with his girlfriend, spent the night in a sleeping bag beside the Kern River near McKinney's property that night. He testified that he heard two gunshots, which sounded like they came from a shotgun. He thought they came from McKinney's house or one of the two other houses nearby.

Gossman and McMahan both heard a motor running after the gunshots. Gossman heard it at about 1:00 a.m. and was sure it sounded like a chainsaw. McMahan did not remember what time he heard it and was convinced it was a quad runner.

Hernandez approached McMahan by the river the next morning. Hernandez introduced himself as Andy and asked McMahan why he was there and whether he had found anything. McMahan said no. Hernandez told McMahan to walk back up the road. Holding up a shotgun shell, Hernandez said that if McMahan came near "his" property, McMahan would be "getting one of these." McMahan left the area, went downstream, and hid.

Summons owned a green Dodge pickup truck with a camper shell. Justin Gammel, Grace Gossman's son, testified that he saw Hernandez driving Summons's truck in June 2006 about a week after Summons disappeared. Gammel said Summons had been like a father to him and he was sure it was Summons's truck. Gammel was 17 years old at the time of trial.

Summons was finally reported missing on June 23, 2006. The report was made by Linda Carr, a person whose address Summons sometimes claimed as his home.

Tiffany Stutsman, who was married to a cousin of Debbie McKinney, was another girlfriend of Hernandez. She testified that on July 3, 2006, Hernandez told her he killed Summons. While Stutsman and Hernandez were alone in a bedroom at the home of Hernandez's mother, Paula Felsinger, Hernandez said he shot Summons in the face with a sawed-off shotgun. He then cut Summons's legs off so the body would fit in a toolbox and took the body to the river to dump it. According to a statement Stutsman made to a deputy sheriff, it was Summons's truck that Hernandez used to transport to the river the toolbox containing the body. Hernandez believed he would not be charged with the murder because the weapon and body would never be found. He told Stutsman he would kill her if she told anyone. He also told her he killed Summons over a "property dispute."

Carrie Scoggan was a friend of Summons and had known Hernandez for many years. During the summer of 2006, Scoggan and Hernandez saw each other in Oildale and spoke. They had not seen each other for a long time, and Scoggan "wanted to see how he was doing." Scoggan testified that Hernandez said Debbie McKinney was spreading the story in Lake Isabella that he had killed Summons. Scoggan told him she did not want to hear about it, but Hernandez told her he did it and asked Scoggan if she wanted to be next. Scoggan said she and Hernandez "don't really get along," and she told him, "[W]e could do this right now." Hernandez, however, got in a car and left. Scoggan testified that she later told investigators a number of lies about Hernandez, but her story about the conversation in Oildale was true. When Scoggan told the sheriff's department about the conversation, she said Hernandez referred to Summons as "Johnny Rotten."

Hernandez also confessed to his mother, Paula Felsinger, at some point during the summer. A deputy sheriff testified that he interviewed Felsinger and recorded the interview. The recording was played for the jury. During the interview, Felsinger said Hernandez told her he killed someone at the back of Debbie McKinney's property, sawed his feet off, put the body in a metal box, and put it in the river. Hernandez told Felsinger he did it because the victim got Melissa McKinney, who had already been ill, "hooked on meth." He did this, Felsinger said, to try to get power of attorney over Melissa McKinney's property, which was the property where Hernandez's girlfriend Debbie McKinney now lived and where Summons's trailer was located. Further, the victim was "an informant for the police department up there," and "was always going around bullying people, stealing from them, taking stuff from `em, and just pretty much trying to manipulate a lot" of people. Hernandez told Felsinger that Debbie McKinney wanted to do the killing, but Hernandez did it instead.

At the end of the interview, Felsinger said she would rather go to jail than testify against her son. At trial, she testified that she had no recollection of giving any information to the sheriff's department.

Stutsman reported Hernandez's story to the sheriff's department on July 20, 2006. A deputy sheriff testified that on August 1, 2006, the sheriff's department searched the McKinney property and found the camper shell from Summons's truck, a spent shotgun shell, and shotgun blast holes in a shed and trailer.

Another deputy testified that on August 15, 2006, he went to the river in response to a report that a body had been found at a point downstream from the McKinney property. The body was partially decomposed and could not be identified. The lower legs and both feet were missing. Later testing found a 99.7 percent probability that a bone sample from the body belonged to the father of Ashlee Summons, Jon Summons's daughter. There were saw marks on the bones of the left leg near the point where the leg was cut. The saw marks were smaller or finer than those that would have been made by a chain saw. The bones of the right leg had too much erosion from the river to show saw marks, but were cut off at the same point. Shotgun wadding and pellets recovered from inside Summons's skull were found to match the gauge and pellet size for the shell casing found on McKinney's property.

While Hernandez was in custody, he made incriminating phone calls from the jail. The jury heard a recording of a call Hernandez made on August 7, 2006, the day after his booking. A deputy testified that the other voice on the recording sounded like Debbie McKinney. During the call, Hernandez says, "They haven't talked to me about nothin'." McKinney says she can't believe they haven't, and asks, "Do . . . do they even know?" Hernandez says he does not know. He expresses concern that investigators might plant an informant in his cell. McKinney advises him not to trust anybody.

Hernandez called Felsinger, his mother, from jail on August 18, 2006, a few days after the body was recovered. A recording of the call was played for the jury. He asks whether she's been watching the news. She says yes, and he asks whether anything is going on. She says yes. He asks, "Bad?" She replies, "Uh Borel Road." Summons's body was pulled from the river near Borel Road. He asks, "Who?" She says, "Uh, they don't know yet." He says, "Ah. Aw man. Um, fuck. Well." She says it was a couple of days ago, and he asks again, "Ain't release no name?" She says, "No. It was too um bad." He asks whether they had "any details" and she says no.

On May 16, 2008, while Hernandez was still in custody, deputies transported him in a sheriff's department van to the Kern Medical Center for a blood draw. A deputy testified that, when Hernandez was loaded into the van, he was wearing leg irons, waist chains, and handcuffs. When the deputy opened the van doors at the hospital, however, Hernandez sprang out, no longer wearing any of the shackles, and ran away. A van door struck the deputy as Hernandez came through it. He ran across the hospital parking lot into a residential area and entered an apartment building through a window. Deputies forced their way into the apartment. With the assistance of the residents, they found the room where Hernandez was hiding. Hernandez refused to be taken back into custody voluntarily. He "resist[ed] by locking himself in the tight position, not enabling us to take control of him," so one deputy electrocuted him with a Taser, causing him to comply. Another found a handcuff key on the carpet in the room where this happened. The key did not belong to any of the deputies present. The deputies took Hernandez to the hospital emergency room to be examined, and, while they were waiting there, one deputy told Hernandez he would be charged with escape. Hernandez said he understood this, but "had nothing to lose by trying."

The jury found Hernandez guilty of second degree murder, a lesser offense included in the charge of first degree murder in count one. It found that, in committing second degree murder, Hernandez personally and intentionally discharged a firearm, causing great bodily injury or death. It also found Hernandez guilty of being a felon in possession of a firearm and ammunition and of escape by force, as charged in counts two, three, and four. It returned no verdict on count five, simple escape. In a separate bench trial, the court found the sentencing allegations true.

The court sentenced Hernandez as follows:

Count Offense or enhancement Sentencing provision Term 1 Second degree murder § 667, subd. (e)(2)(A)(iii) 51 years to life (lesser-included offense) §§ 187, 189 1 Personal discharge of a § 12022.53, subd. (d) 25 years to life, firearm resulting in death consecutive 1 Prior prison term § 667.5, subd. (b) 1 year, consecutive 1 Personal use of a firearm § 12022.5, subd (a) 15 years to life, stayed under § 654 2 Being a felon in possession § 667, subd. (e)(2)(A)(ii) 25 years to life, of a firearm, § 12021, stayed under § 654 subd. (a)(1) 3 Being a felon in possession § 667, subd. (e)(2)(A)(ii) 25 years to life, of ammunition, § 12316, consecutive subd. (b) 4 Escape by force, § 4532, § 667, subd. (e)(2)(A)(ii) 25 years to life, subd. (b)(1) consecutive

The total of the unstayed terms was 127 years to life. The court declined to impose the two 5-year enhancements alleged under section 667, subdivision (a), stating that this provision does not apply to juvenile priors.


I. Third-party culpability evidence

Hernandez argues that the court erred when it rejected his proffer of a witness's testimony which, he says, suggested that a third party could have been culpable in the murder of Summons. He also contends that the court should have granted his request for a hearing under Evidence Code section 402 to determine whether the witness's testimony constituted admissible third-party culpability evidence. We do not agree.

The prosecution filed a motion in limine to exclude any testimony by Justin Gammel about an encounter he witnessed between Summons and an "unidentified Hispanic male, 5 [feet] 09 [inches], 170 pounds, bald w/tattoos on his body . . . ." A few days before Summons's murder, Gammel was helping Summons move some possessions out of the McKinney house. Gammel told an investigator that this person "got in Summons'[s] face and yelled at him. Summons then yelled back and they talked `gang talk and jail talk.'" The motion argued that Gammel's testimony about this "would be improper third party culpability type evidence and would not meet the standard as described in People v. Hall [(1986) 41 Cal.3d 826, 833] . . . ."

The court granted the motion. Hernandez's trial counsel asked the court to reconsider the ruling, relying on the investigator's report to proffer Gammel's testimony about the encounter with the unidentified man. He argued that the proximity in time, the fact that Summons and the man were arguing heatedly, and the "`jail talk,'" made the evidence admissible to show the culpability of a third party. He also said Gammel would testify that the unidentified man was not Hernandez (and this appears to be undisputed). The court agreed with the prosecution's argument that the evidence did not link the unidentified man to the crime, so it was not admissible to show third-party culpability.

During trial, defense counsel made another request to introduce Gammel's testimony on the point. He had talked to Gammel in the hallway, and Gammel had confirmed that the unidentified man was not Hernandez and stated that the argument happened "a day or so" before the murder. "I don't know what he's going to say as to the extent of this argument," counsel conceded, but "it looked like it was almost physical, based on the description we have" in the investigator's report.

The court asked how the evidence linked the unidentified man with the crime. Counsel said the argument was heated and happened near the scene of the murder and close to it in time. The court asked if Gammel would testify that the man threatened to kill Summons, and counsel said he did not know, since Gammel had been unwilling to be interviewed. The court deferred ruling on the matter. Later that day, defense counsel asked the court to conduct a hearing pursuant to Evidence Code section 402 "to see just exactly what he's going to say . . . ." The prosecutor argued that this would be "a fishing expedition."

The court reaffirmed its ruling the following day that the testimony was inadmissible. Defense counsel renewed his request for an Evidence Code section 402 hearing "to determine whether there were any threats between the two." Gammel was still refusing to be interviewed by the defense, so counsel did not "know what the jail talk was or the gang talk or whether it also involved threats." The prosecution again argued that the hearing would amount to "a deposition or a fishing expedition" or a "discovery situation," and that this was not the purpose of Evidence Code section 402. The court took the request under submission and later denied it.

We review the trial court's decision to admit or exclude evidence for abuse of discretion. (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) We also review for abuse of discretion the trial court's decision to exclude the evidence without conducting an Evidence Code section 402 hearing. (People v. Williams (1997) 16 Cal.4th 153, 196-197.)

Our Supreme Court described the standard for admissibility of third-party culpability evidence in People v. Hall, supra, 41 Cal.3d at page 833:

"To be admissible, the third-party evidence need not show `substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime."

The trial court did not abuse its discretion in determining that the proffered evidence of Gammel's statements failed to meet this standard. Gammel said Summons had an angry exchange with a third party near Summons's home (i.e., near his trailer behind the McKinney house) a short time before Summons's murder. The court could reasonably conclude that this was not enough to link the unknown man to "the actual perpetration of the crime." The fact that the argument and the murder both happened near the victim's residence "demonstrates only the obvious nexus between the victim and his residence," as the People argue. Angry arguments are not uncommon, and without evidence of what the argument was about or what was said, there is nothing to link one of its parties to the subsequent murder of the other. "`[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion.'" (People v. Cornwell (2005) 37 Cal.4th 50, 81, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

The court also did not abuse its discretion in denying Hernandez's request for an Evidence Code section 402 hearing to try to find out more about the argument. Subdivision (a) of that section provides: "When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article." "[T]his article" is article 2 of the Evidence Code (sections 400 to 406). Evidence Code section 403, subdivision (a), provides that "[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when" among other situations, "[t]he relevance of the proffered evidence depends on the existence of the preliminary fact . . . ." A "preliminary fact" is "a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence." (Evid. Code, § 400.)

Here, defense counsel requested a hearing for the purpose of asking Gammel what the unknown man said to Summons, and specifically whether he threatened Summons. A threat by the man, then, would have been the preliminary fact to be proved. This fact, if proved, would show the relevance of Gammel's proffered testimony.

A hearing is warranted if the existence of a preliminary fact is "disputed." (Evid. Code, § 402, subd. (a).) Here the court could, within the bounds of reason, find that the existence of a threat by the unknown man was not "disputed." If it were disputed, the defense would have claimed it existed while the prosecution claimed it did not exist. However, neither side claimed anything about it. It was merely a subject of speculation. Defense counsel wondered whether it existed or hoped it existed, but did not claim it actually did. We conclude that a trial court is not required to conduct a section 402 hearing to find out whether a preliminary fact a party merely wishes existed does in fact exist. If the proponent of the proffered target evidence cannot also proffer evidence of the preliminary fact—as opposed to guessing that evidence of the preliminary fact might turn out to exist—the court has discretion to exclude the target evidence without a section 402 hearing.

II. Defendant's absence during transcript read-back

Hernandez argues that the court violated his federal constitutional right to due process when it allowed trial testimony to be read back to the jury in his absence. He acknowledges that his counsel waived his right to be present, but claims the court was required to obtain his personal waiver. As we will explain, and as Hernandez ultimately concedes, controlling case law rejects Hernandez's position.

The jury requested a read-back of the testimony of Scoggan, Stutsman, and the deputy sheriff who testified about Hernandez's escape from the van. The court granted the request and asked defense counsel if he wanted to be present for the read-back. Counsel said, "We do not wish to be present during the read back . . . ." The court brought the jurors in and explained that the court reporter would go into the jury room with them to read the testimony from the transcript. Then it again said to defense counsel, "for the record, your client is going to waive his presence during the read back, correct?" Defense counsel said, "Yes, sir."

In several cases, the California Supreme Court held that the defendants had no constitutional right to be present during a read-back of trial testimony because the read-back was not a critical stage of the trial. (People v. Cox (2003) 30 Cal.4th 916, 963, overruled on other grounds by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11 Cal.4th 1068, 1120-1121; People v. Pride (1992) 3 Cal.4th 195, 251.) In Horton, for instance, the defendant claimed—just as Hernandez claims—that his constitutional rights were violated when the court accepted his counsel's waiver of his presence during a read-back. The Supreme Court stated:

"As we previously have observed in rejecting similar guilt phase contentions, a `defendant is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his or her opportunity to defend the charges against him, and the burden is on defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.' [Citations.] The foregoing rule applies to defendants in capital homicide prosecutions as well as to those in noncapital cases. [Citations.] The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant's opportunity to defend [citations], and nothing in the present record indicates that defendant's personal presence would have assisted the defense in any way." (People v. Horton, supra, 11 Cal.4th at pp. 1120-1121.)

These remarks apply squarely to the present case. We applied the same principles to a similar contention in People v. McCoy (2005) 133 Cal.App.4th 974, 981-983.

The United States Supreme Court has never addressed the issue. In his opening brief, Hernandez cites several decisions of the Ninth Circuit that are contrary to the California Supreme Court's position. The People point out that, unlike decisions of the California Supreme Court, those of the Ninth Circuit are not binding on us, and we have no choice but to follow the California Supreme Court. (Auto-Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Hernandez concedes this in his reply brief. We conclude the trial court did not err.

III. Clerical error on verdict form

Hernandez claims a clerical error on the verdict form for second degree murder means the true finding for personal use of a firearm causing death must be reversed, along with the sentence enhancement based on it. We disagree.

The information charged first degree murder. The jury was told of its option to find second degree murder instead. It was given verdict forms for both options. It found Hernandez not guilty of first degree murder. For first degree murder, the foreperson signed two forms, stating as follows:

"We, the Jury, empaneled to try the above entitled cause, find the defendant, ANDREW [QUINTON] HERNANDEZ, not guilty of Felony, to wit: Murder of Jon Summons, in violation of Section 187(a) of the Penal Code, as charged in the first count of the Information." "We, the Jury, empaneled to try the above entitled cause, find it to be not true the defendant, ANDREW [QUINTON] HERNANDEZ, did personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of murder of Jon Summons, within the meaning of Penal Code Section 12022.53(d), as alleged in the first count of the Information."

For second degree murder, the foreperson signed two more forms:

"We, the Jury, empaneled to try the above entitled cause, find the defendant, ANDREW [QUINTON] HERNANDEZ, guilty of Felony, to wit: Murder in the Second Degree, in violation of Section [187] of the Penal Code, a lesser but necessarily included offense in the crime charged in the first count of the Information." "We, the Jury, empaneled to try the above entitled cause, find it to be true the defendant, ANDREW [QUINTON] HERNANDEZ, did personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of murder of Jon Summons, within the meaning of Penal Code Section 12022.53(d), as alleged in the second count of the Information." (Italics added.)

The reference to the second count of the information is the clerical error. The enhancement for personal use of a firearm causing death was alleged only in count one, the murder count. Count two charged that Hernandez was a felon in possession of a firearm. The form should have referred to count one, just as the form for first degree murder did. Hernandez says this means we must disregard the form on the enhancement for second degree murder, leaving only the form for first degree murder, which found the enhancement allegation not true.

This argument has no merit. The forms make it obvious that the jury found Hernandez not guilty of first degree murder and found it not true that he discharged a firearm in the commission of first degree murder, and also found him guilty of second degree murder and found it true that he discharged a firearm in the commission of second degree murder. The erroneous reference to the second count of the information is immaterial. It does not impair the intelligibility of the forms in any way.

Hernandez argues:

"[The People] may claim the jury actually intended the `not true' finding on the section 12022.53, subdivision (d) allegation should be applied to the acquittal of first degree murder in count one, while the `true' finding on the same allegation applied to the conviction of second degree murder in count one. Any such argument must be rejected because it would conflict with language found on the verdict forms used to record the verdicts. The `not true' verdict clearly refers to count one, while the `true' verdict refers specifically to count two."

He goes on to say that a reviewing court must never try to go behind the literal terms of a verdict to divine its true meaning, and must not attempt to review a jury's internal workings.

What this argument overlooks, of course, is that the "true" verdict found that Hernandez fired the gun "during the commission of murder of Jon Summons." The meaning of this is unambiguous and unmistakable. The clerical error referring to count two creates not the slightest doubt. To observe this is not to question the verdict, but to affirm it.

IV. Miscalculation of three strikes sentence

The parties agree that the court mistakenly applied a provision of the three strikes law to calculate a sentence of 51 years to life for the second degree murder conviction. The court should have applied a different provision, resulting in a sentence of 46 years to life.

Section 667, subdivision (e)(2)(A),2 applies to Hernandez's sentence on count one because he had two prior strike offenses. Three ways of calculating the sentence are set out in section 667, subdivision (e)(2)(A)(i), (ii), and (iii). The court must choose the method that produces the longest minimum term. Following the recommendation of the probation officer, the court arrived at the 51-year minimum term by applying section 667, subdivision (e)(2)(A)(iii). Under that provision, the minimum term is equal to the sentence for the underlying conviction plus applicable enhancements. The court arrived at the figure of 51 years by taking the sum of 15 years for second degree murder, 25 years for personally discharging a firearm causing death (§ 12022.53, subd. (d)), five years each for two prior serious felonies (§ 667, subd. (a)), and one year for a prior prison term (§ 667.5, subd. (b)).

The parties agree, however, that the inclusion of five years for each of two prior serious felonies was erroneous because the two felonies were juvenile offenses. They cite People v. West (1984) 154 Cal.App.3d 100, 107-108, which noted that section 667, subdivision (a), imposes a five-year enhancement for each prior conviction, and that our Supreme Court has held that juvenile court adjudications are not convictions. Hernandez also points out that section 667, subdivision (a), requires each prior offense for which an enhancement is added to have been "brought and tried separately." His two juvenile offenses were tried in a single proceeding. This would be another sufficient ground for modifying the judgment, but we need not rely on it.

The parties agree that the court should have applied section 667, subdivision (e)(2)(A)(i), instead. Under that provision, the court imposes a minimum term of three times the punishment otherwise provided. Here, that term is 45 years, equal to three times the 15-year minimum term for second degree murder. We order the judgment modified to reflect this change.

V. Juvenile adjudications were properly counted as strikes

Hernandez argues that he should not have received a three strikes sentence in the first place because his prior serious felonies were juvenile offenses. He claims that the use of juvenile priors to enhance a sentence in a subsequent proceeding in adult court is a violation of the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny because minors accused of criminal offenses in juvenile court have no right to trial by jury.

The California Supreme Court rejected the same contention in People v. Nguyen (2009) 46 Cal.4th 1007. Hernandez acknowledged Nguyen in his reply brief, but stated that a petition for certiorari was pending in the United States Supreme Court and that the court had requested additional briefing. That court denied certiorari on April 19, 2010. (Nguyen v. California (2010) ___ U.S.___ [130 S.Ct. 2091].) The California Supreme Court's holding controls and mandates rejection of Hernandez's argument.

VI. Errors in the abstract of judgment and minutes

The parties discuss four possible errors in addition to those discussed above. We agree that there are three requiring correction.

First, the People voluntarily dismissed the enhancement allegation the information asserted pursuant to section 12022.5. This allegation stated that Hernandez personally used a firearm; it was an alternative to the allegation that he personally discharged a firearm causing death. In spite of the dismissal of the allegation, the trial court imposed a 15-years-to-life enhancement pursuant to section 12022.5 and stayed it pursuant to section 654. The abstract of judgment reflects a stayed enhancement pursuant to section 12022.5, but states that the term is 25 years to life. In fact, no section 12022.5 enhancement could properly be imposed, since the allegation was never submitted to the jury. The People concede the error and request that we order the abstract of judgment amended to delete the reference. We will do so.

Second, the People point out that the abstract of judgment omits the enhancement of 25 years to life that the court imposed pursuant to section 12022.53, subdivision (d). Hernandez states that this enhancement should never have been imposed for the reasons we discussed in part III of our Discussion. Since we reject Hernandez's argument on that point, we agree with the People that the abstract of judgment must be amended to show the section 12022.53, subdivision (d), enhancement.

Third, the abstract of judgment indicates a conviction and a stayed sentence for count 5, escape without the use of force. In fact, the jury returned no verdict on this count and could not have returned a guilty verdict. The jury found Hernandez guilty of count four, escape by force, and the jury instructions stated that, if the jury found Hernandez guilty of count four, it must acquit him of count five. The parties agree that the abstract is in error. We order it corrected.

Finally, the court ruled from the bench that the true findings for prior offenses under section 667, subdivision (a), would be stricken because they were based on juvenile adjudications. A juvenile adjudication cannot be a basis for an enhancement under section 667, subdivision (a), for the reasons described in part IV of the Discussion above. The court's minutes state that these enhancements are "STRICKEN FOR SENTENCING PURPOSES ONLY." No reference to the enhancements appears in the abstract of judgment.

Hernandez argues that the enhancements should be "stricken from the judgment . . . ." He appears to mean that we should order the trial court to amend its minutes to say that the enhancements are stricken for all purposes, not just sentencing purposes.

No correction is necessary. The abstract of judgment correctly omits any reference to the enhancements. The challenged statements in the minutes do not affect the judgment. "Sentencing purposes" are the only purposes for which a true finding under a sentence enhancement statute exists, so the statements in the minutes striking the findings for sentencing purposes did all that was necessary. We do not understand the truth of the allegations—i.e., that Hernandez really has these juvenile priors—to be in dispute.


The judgment is modified in the following particulars: The sentence for count one is reduced from 51 years to life to 45 years to life. The enhancement imposed for count one under section 12022.53, subdivision (d), must be set forth in the abstract of judgment. The enhancement imposed and stayed for count one under section 12022.5 is stricken.

The verdict of guilty and the sentence for count five are stricken. The judgment is affirmed as modified. The trial court shall prepare a corrected abstract of judgment and forward it to the appropriate prison authorities.


Gomes, J.

Hill, J.


1. Subsequent statutory references are to the Penal Code unless otherwise indicated.
2. This subdivision is identical to section 1170.12, subdivision (c)(2)(A).


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Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases