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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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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 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. 
2

 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).) 
3

 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. 
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 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. 
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 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).) 
6

 “ ‘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 
7

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). 
8

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.) 
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 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 
10

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.) 
11

 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.