Filed 3/4/21 P. v. Hernandez CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL HERNANDEZ,

Defendant and Appellant.

F080208

(Super. Ct. No. VCF182700)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. 

Boccone, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Clara M. 

Levers and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P.J., Meehan, J. and DeSantos, J.
2.

Defendant Manuel Hernandez was convicted of shooting at an occupied vehicle 

and three counts of assault with a firearm. He contends on appeal that the trial court 

erred in (1) denying his request to hold proceedings to create a record for a youthful 

offender parole hearing—commonly referred to as Franklin proceedings—pursuant to 

Penal Code section 1203.11 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and 

(2) imposing both firearm and gang enhancements on the assault with a firearm 

convictions. The People agree with defendant on both issues. We vacate the sentence 

and remand with direction for the trial court to strike the firearm enhancements, 

resentence defendant, and conduct Franklin proceedings.

PROCEDURAL SUMMARY

On November 30, 2007, the Tulare County District Attorney filed an information 

charging defendant, who was 17 years old on the date of the charged offenses, with 

attempted murder of R.M. (§§ 187, subd. (a), 664; count 1), attempted murder of A.G. 

(§§ 187, subd. (a), 664; count 2), attempted murder of A.A. (§§ 187, subd. (a), 664; 

count 3), shooting at an occupied vehicle (§ 246, count 4), assault with a firearm of R.M. 

(§ 245, subd. (a)(2); count 5), assault with a firearm of A.G., (§ 245, subd. (a)(2); 

count 6), and assault with firearm of A.A. (§ 245, subd. (a)(2); count 7). The information 

further alleged that defendant committed all offenses for the benefit of a criminal street 

gang (§ 186.22, subd. (b)(1)(C)). As to counts 1 through 3, the information alleged 

defendant was personally armed with and discharged a firearm (§ 12022.53, subds. (b), 

(c), (e)(1)) and as to counts 5 through 7, the information alleged defendant personally 

used a firearm (§§ 667, subd. (c), 1197, subd. (c), 12022.5). 

On October 3, 2008, the jury found defendant guilty on counts 4 through 7, but not 

guilty on counts 1 through 3. As to counts 4 through 7, the jury found true the gang 

allegations and the firearm allegations. 

1 All further statutory references are to the Penal Code.
3.

On November 5, 2008, the trial court sentenced defendant to 32 years to life as 

follows: on count 4, 15 years to life; on count 5, a consecutive term of three years (the 

middle term), plus four years for the firearm enhancement (§ 12022.5), plus 10 years for 

the gang enhancement (§ 186.22, subd. (b)(1)(C)); on counts 6 and 7, concurrent terms of 

three years (the middle term), plus four years for the firearm enhancements (§ 12022.5), 

plus 10 years for the gang enhancements (§ 186.22, subd. (b)(1)(C)). 

On February 25, 2010, on remand, the trial court vacated and stayed the sentence 

on count 7. 

On September 25, 2019, defendant moved the trial court to conduct a Franklin 

hearing. The trial court denied the motion on October 15, 2019. 

On October 30, 2019, the defendant filed a notice of appeal. 

DISCUSSION2

Franklin Proceedings

In 2013, the Legislature enacted Senate Bill No. 260 (2013–2014 Reg. Sess.) 

(Stats. 2013, ch. 312, § 4), codified in section 3051, which provides for youth offender 

parole hearings that guarantee juvenile offenders a meaningful opportunity for release on 

parole. (Franklin, supra, 63 Cal.4th at p. 276; § 3051, subd. (e).) Youth offender parole 

hearings are available, with some exceptions, to offenders who were under 25 years old 

when they committed their controlling offenses. (§ 3051, subd. (b).) To ensure that the 

youth offender parole hearing is meaningful, youth offenders must have an opportunity 

for Franklin proceedings in the trial court, in order to make an accurate record of the 

offender’s “characteristics and circumstances at the time of the offense.” (Franklin, at 

p. 284.)

2 Because defendant raises only postconviction issues, the facts underlying the 

offenses are not relevant and are omitted from this opinion.
4.

“In cases with final judgments, section 1203.01 gives the trial court authority to 

conduct an evidence preservation proceeding as envisioned in Franklin.” (In re Cook

(2019) 7 Cal.5th 439, 452.) 

The parties agree that defendant was 17 years old when he committed the offenses, 

he is eligible for juvenile offender parole hearing during his 20th year of incarceration 

(§ 3051, subd. (b)(2)), and he has not been afforded a full opportunity to make a record of 

his characteristics and circumstances at the time of the offense because his conviction 

occurred prior to enactment of section 3051. They conclude, and we agree, that 

defendant should be permitted to supplement the record with any evidence relevant to his 

eventual youth offender parole hearing. The trial court will be directed to conduct 

Franklin proceedings. (See In re Cook, supra, 7 Cal.5th at p. 459 [a trial court may 

exercise its discretion to ensure that only relevant and noncumulative information is 

submitted by, for example, requiring an offer of proof or considering whether 

documentary evidence (rather than testimony) would suffice].)

Firearm and Gang Enhancements

The parties agree that the sentences on defendant’s assault with a firearm 

conviction were unauthorized because the trial court imposed two enhancements on each 

offense—a 10-year gang enhancement and a four-year firearm enhancement—based on 

defendant having personally used a firearm. We agree.

An unauthorized sentence can be corrected at any time. (People v. Rivera (2019) 

7 Cal.5th 306, 348–349; People v. Scott (1994) 9 Cal.4th 331, 354–355.)

Section 1170.1, subdivision (f) provides, in relevant part: “When two or more 

enhancements may be imposed for being armed with or using a dangerous or deadly

weapon or a firearm in the commission of a single offense, only the greatest of those 

enhancements shall be imposed for that offense.” In People v. Rodriguez (2009) 47 

Cal.4th 501, 504 (Rodriguez), our Supreme Court concluded it was error to impose a 10-

year gang enhancement (§ 186.22, subd. (b)(1)(C)) and a personal use of a firearm 
5.

enhancement (§ 12022.5) to a sentence on an assault with a firearm count. It explained 

that the firearm enhancement “[fell] squarely within the limiting language of 

section 1170.1’s subdivision (f)” because it was imposed based on defendant’s personal 

use of a firearm. (Rodriguez, at p. 508; § 12022.5.) The 10-year gang enhancement fell 

within the same limitation. That enhancement is only applicable if the offense of 

conviction was a violent felony. (§ 186.22, subd. (b)(1)(C).) In Rodriguez, the court 

explained that defendant’s crime was a violent felony only because “he ‘use[d] a firearm 

which use [was] charged and proved as provided in ... Section 12022.5.’ ” (Rodriguez, at 

p. 509; § 667.5, subd. (c)(8)). Both enhancements were therefore only applicable because 

defendant used a firearm. Therefore, “section 1170.1’s subdivision (f) require[d] 

imposition of ‘only the greatest of those enhancements’ with respect to each offense.”

(Rodriguez, at p. 509.)

Rodriguez controls here. Defendant was convicted of three counts of assault with 

a deadly weapon and as to each count the trial court imposed a personal use of a firearm 

enhancement and a 10-year gang enhancement based on defendant’s use of a firearm. 

The trial court was authorized only to have imposed the greater of those enhancements 

with respect to each offense. The four-year enhancements for personal use of a firearm 

must therefore be stricken.

Where a portion of a sentence must be stricken, “ ‘a full resentencing as to all 

counts is [generally] appropriate, so the trial court can exercise its sentencing discretion 

in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893; 

see Rodriguez, supra, 47 Cal.4th at p. 509 [remanding for resentencing in light of its 

conclusion that the sentence violated section 1170.1, subd. (f)].) On remand, the trial 

court is directed to conduct a full resentencing in light of the changed circumstances.
6.

DISPOSITION

Defendant’s sentence is vacated and the matter is remanded. On remand, the trial 

court is directed to strike the enhancements for personal use of a firearm on counts 5, 6 

and 7, conduct a full resentencing, and conduct Franklin proceedings.