Filed 2/27/13 P. v. Hernandez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. OCTAVIO HERNANDEZ, Defendant and Appellant. H037908 (Monterey County Super. Ct. No. SS111731)

Defendant Octavio Hernandez appeals afte r 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 th e trial court abused its discretion by imposing the upper-term sentence. For the re asons 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 distributo r. He was dispatched to deliver marijuana to defendant. Magaoay had delivered mar ijuana to defendant about two weeks earlier.

1 All further statutory references are to the Penal Code unless otherwise indicated.2 Magaoay initially attempted to deliver th e 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 lo t 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 sel ection. Magaoay began to weigh out the product. He looked up and saw defendant pointing a silv er handgun at his face. Defendant said, “I am not playing around.” Defendant asked for Magaoa y’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 handg uns 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 defe ndant was subsequently identif ied by records at Sweet Leaf Caregivers. Following the incident, Magaoa y quit working for Sweet Leaf Caregivers because he was afraid of getting shot. B. Charges, Plea, and Sentencing On October 25, 2011, defend ant was charged, by informa tion, with second degree robbery. (§ 211.) The information alleged that defendant personally used a firearm in the commission of the robbery. (§ 12022.5, subd. (a).)3 On December 14, 2011, defendant pleaded no contest to the ro bbery in exchange for dismissal of the firearm use allegation. At the sentencing hearing on January 11, 2012, the trial court imposed the five-year upp er 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 tria l court abused its discreti on by imposing the five-year upper term sentence for robbery. Defendant claims that the trial court erred because the aggravating circumstances it fo und “are either elements of the charged crime or are unsupported by subs tantial 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 pare nts, and he apologized to the victim “for

the inconvenience he caused.” The probation report listed the followi ng 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 $2 40 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 openi ng brief, defendant claimed that imposition of the $1,200 restitution fine violated the constitutional prohibition against ex post facto laws. On Augu st 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.4 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 par ticularly vulnerable;” (4) “[t]he defendant induced others to pa rticipate in the commission of the crime or occupied a position of leadership or dominance of other par ticipants in its commission;” (5) “[t]he manner in which th e crime was carried out indicates planning, sophistication, or professionalism;” and (6) “[t]he crime i nvolved an attempted or actual taking or damage of great monetary value.” The pr obation report also listed one factor in aggravation under rule 4.421(b): “The defe ndant has engaged in violent conduct that indicates a serious danger to society.” Th e 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 prosecut or 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, argui ng that it was “never [defendant’s] intention to hurt the victim” and claiming that “[h]e used a fake gun.” He dis puted 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 pa rticularly vulnerable and that while another person was involved, defendant di d not induce others to partic ipate. He argued that the crime did not involve planning, sophistica tion, or professionalism because “it was actually a very dumb and stupid plan,” si nce Sweet Leaf Caregivers had defendant’s name and address. Trial counsel also argue d that defendant did not engage in violent

4 The prosecutor asserted th at the firearm use allegati on “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.5 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 opport unity to speak. De fendant 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 as sume the People don’t think they can prove it was real. I don’t think any firearm wa s ever located, real or not real.” The trial court then made findings concer ning the circumstances in aggravation. It found that the crime involved great viol ence or a threat of great bodily harm (rule 4.421(a)(1)), that defendant was ar med during the commission of the crime (rule 4.421(a)(2)), and that the manner in which the crim e was carried out indicated planning, sophistication, or professionalism (r ule 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 ea rly 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 tria l court specified that these circumstances did not outweigh the aggravating ci rcumstances: “[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 appr opriate 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 mitig ation, and any other factor reasonably related to the se ntencing decision.” (Rule 4.420(b).)6 “ ‘Sentencing courts have wide discreti on in weighing aggrav ating 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.4t h 1569, 1582.) An appellate court should not reweigh the circum stances in aggravation and mitigation, but must consider only whether “the court exercise d 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 3 08, 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 fact or 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 tria l 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 cr ime upon which punishment is being imposed may not be used to impose a greater te rm.” (Rule 4.420(d).) An aggravating

circumstance is a fact that makes the offense “ ‘distinctively worse th an 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 fo rce and fear do not need to be extreme for purposes of constituting robbe ry. [Citations.] [¶] This means that the threat of7 bodily harm can frequently ex ceed 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 screwdri ver” 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 screwdrive r 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 rela ted 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 presen ce and against his will, accomplished by means of force or fear, the particular mean s 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 mean ing 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 becau se it involved a threat of great bodily harm, despite defendant’s use of a toy gun].) In the present case, defendant pointed a ha ndgun 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, th e victim believed he was being threatened with a real gun. The trial court did not ab use its discretion by fi nding that defendant’s threatening conduct “ ‘exceed[e d] 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 aggr avation under rule 4.421(a)(1).8 2. Use of a Weapon

Defendant contends the trial court e rred 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 in sufficient 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 repli ca gun rather than an operable firearm, the

trial court did not abuse its di scretion by finding that defendant was armed with or used a weapon within the meaning of rule 4.421(a)(2). We agree with the A ttorney 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 be lieves the weapon is real. In such a case, whether operable or not, the weapon is be ing used “[t]o induce fearful compliance.” ( People v. Lewis (1991) 229 Cal.App.3d 259, 265.)

Our conclusion is consistent with ca ses 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 arme d with a deadly we apon. (See, e.g., People v. Jackson (1979) 92 Cal.Ap p.3d 899, 903 ( Jackson ); People v. Nelums (1982) 31 Cal.3d 355, 360 ( Nelums ).) These statutes include i noperable 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 “m ay stimulate resistance” and thereby create an additional “potential for harm.” ( Nelums, supra, at p. 360.)9 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 so me 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, th e trial court did not abuse its discretion by finding th at 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 c ourt’s finding that the manner in which the crime was carried out indicated planni ng, sophistication, or professionalism. (Rule 4.421(a)(8).) At the sentencing hearing, the trial court explaine d its finding on this circumstance in aggravation: “[H]e arrang ed to meet the victim, called him, armed himself with some kind of a firearm, and kn ew 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 hi nt of sophistication or professionalism.” However, the trial court was not required to fi nd 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 defenda nt’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 there10 was evidence he had planned the offense. Th e 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 [fi nding of planning up held 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 hi mself with either a real or real-looking firearm, and arranging for a ge taway driver. Even though de fendant’s plan may not have been very well thou ght-out with respect to concealing his identity, the trial court did not abuse its discretion by finding that the crim e 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 societ y. (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 e rred by finding this circumstance in aggravation, we would find no re versible error in light of our previous analysis of the other circumstances in aggravation. “ ‘W hen a trial court has given both proper and improper reasons for a sentence choice, a revi ewing court will set aside the sentence only if it is reasonably probable th at 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 a ppropriate when there is misplaced reliance on a single aggravating factor.” ( Reid, supra, 133 Cal.App.3d at p. 372.)11 As explained above, the trial court did no t abuse its discretion by finding the other three cited circumstances in aggravation, a ll of which had eviden tiary 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 indica ting he is a serious danger to society.

DISPOSITION The judgment is affirmed.

_____________ _______________ _______________ BAMATTRE-MANOUKIAN, J.

WE CONCUR:

_____________ _____________ ELIA, ACTING P.J.

_____________ _____________ MÁRQUEZ, J.