P. v. Hernandez CA4/1

California Court of Appeal · D081871 · 2024-10-18 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE400319
Trial judge: Steven E. Stone
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Laurence D. Rubin (author), O'Rourke, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:03Z · confidence low

The trial court convicted the defendant of second-degree murder and attempted murder, sentencing him to 25 years to life and a concurrent 17 years, respectively, with firearm enhancements. The Court of Appeal affirmed the judgment, directing only a clerical correction to the abstract of judgment to reflect the correct statutory basis for the enhancement.

Ruling reviewed	Standard	The court	The model
Conviction for second-degree murder and attempted murder “Otherwise, we find no arguable issue that would result in a reversal or modification of the conviction.”	de novo	not reached	unsure The court did not conduct a detailed legal analysis of the sufficiency of the evidence or the jury's verdict, relying instead on the Wende/Anders independent review standard to determine that no arguable issues existed.
Sentencing and firearm enhancements “As for Hernandez’s challenge to his sentence, there is no indication the trial court misapplied sentencing laws or abused its discretion.”	abuse of discretion	not reached	unsure The court rejected the defendant's claim of a disproportionate sentence without detailed analysis, stating there was no indication of legal misapplication or abuse of discretion.
Clerical error in abstract of judgment “The abstract of judgment states that the 10-year firearm enhancement on count 2 was imposed under section 12022.53, subdivision (d), instead of subdivision (b) as ordered by the trial court.”	de novo	error	agree with court The court identified a discrepancy between the trial court's order (imposing the lesser 10-year enhancement under subdivision (b)) and the abstract of judgment (listing the 25-year enhancement under subdivision (d)), and directed a correction.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel when no issues are raised.
relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by appellate counsel when no issues are raised.
relied: People v. Tirado (2022) 12 Cal.5th 688 — Allows the imposition of the lesser included 10-year enhancement under section 12022.53, subdivision (b) when the jury finds the 25-year enhancement under subdivision (d) true.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders independent review standard, correctly identifying a clerical error in the abstract of judgment. However, it is a brief, unpublished opinion that provides minimal substantive legal analysis for the rejection of the defendant's claims, relying on conclusory statements rather than detailed reasoning.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:29Z · confidence low

A jury convicted Roberto Hernandez of second degree murder and attempted murder with personal firearm use findings, and the trial court sentenced him to 25 years to life on the murder count (imposing lesser 10-year section 12022.53(b) enhancements under Tirado) with a concurrent 17-year term on the attempted murder count. On appeal appointed counsel filed a Wende/Anders brief, Hernandez filed a supplemental brief, and the Court of Appeal found no arguable issues, affirmed the judgment, and directed correction of a clerical error in the abstract of judgment misidentifying the count 2 enhancement subdivision.

Ruling reviewed	Standard	The court	The model
Judgment of conviction for second degree murder and attempted murder (sufficiency of evidence and other counsel-identified potential issues reviewed under Wende/Anders) “Otherwise, we find no arguable issue that would result in a reversal or modification of the conviction.”	unclear	correct	agree with court The court conducted the independent record review required by Wende and Anders and found no arguable issue; the opinion recites that Hernandez admitted seeing two individuals and firing roughly 10 shots in their direction, which supports the convictions. The opinion gives no substantive analysis of the counsel-identified issues (admission of preliminary hearing testimony, defense counsel's closing argument, prosecutor's appeal to sympathy), which is typical of Wende dispositions but leaves nothing to evaluate beyond the court's conclusion.
Admission of preliminary hearing testimony from a witness the trial court found unavailable “whether the trial court erred in admitting preliminary hearing testimony from a witness it found unavailable”	unclear	correct	unsure The court listed this as a potential issue identified by counsel and concluded there was no arguable issue, but the opinion contains no facts about the unavailability finding or the diligence shown, so there is no basis in the opinion to independently confirm or dispute the conclusion.
Sentence of 25 years to life on count 1 with concurrent 17 years on count 2, including imposition of lesser 10-year firearm enhancements under section 12022.53, subdivision (b) “there is no indication the trial court misapplied sentencing laws or abused its discretion.”	abuse of discretion	correct	agree with court The trial court exercised the discretion recognized in People v. Tirado to impose a lesser uncharged enhancement under section 12022.53(b) in place of the 25-years-to-life (d) enhancement found by the jury, which benefited Hernandez; the 15-years-to-life base term for second degree murder is statutorily mandated, so a disproportionality challenge has no apparent footing on this record.
Abstract of judgment stating the count 2 firearm enhancement was imposed under section 12022.53, subdivision (d) rather than subdivision (b) as orally pronounced “The abstract of judgment states that the 10-year firearm enhancement on count 2 was imposed under section 12022.53, subdivision (d), instead of subdivision (b) as ordered by the trial court.”	unclear	error (other)	agree with court The oral pronouncement of judgment controls over the abstract, and an appellate court may order correction of a clerical discrepancy in the abstract; the court's direction to amend the abstract to reflect subdivision (b) is the correct remedy, though it cited no authority for the correction.
Supplemental-brief claims of jury racial bias, intoxication, lack of awareness of the second victim, ineffective assistance of counsel, and misled jury “Hernandez also admitted at trial that he saw two individuals and fired in their direction, contradicting his alleged lack of awareness of Clark’s presence.”	unclear	correct	agree with court The court addressed each supplemental contention as required for Wende appeals with a defendant's supplemental brief, finding them unsupported by the record or conclusory; the cited trial admission directly refutes the attempted murder intent argument, and the remaining claims lack record support as described.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request permission to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal; the court then independently examines the record.
relied: People v. Tirado (2022) 12 Cal.5th 688 — A trial court that strikes a section 12022.53, subdivision (d) enhancement found true by the jury has discretion to impose a lesser uncharged enhancement under subdivision (b) or (c).
missed: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls over the abstract of judgment, and appellate courts may order correction of clerical errors in the abstract at any time.

The appellate opinion: sound with gaps — The court performed the required independent Wende/Anders review, specifically answered each of the defendant's supplemental contentions with reference to the record, and properly ordered correction of the abstract to match the oral pronouncement. It did not cite authority for correcting the abstract (e.g., People v. Mitchell) or for its obligation to address the supplemental brief, and offered no analysis of the four counsel-identified issues beyond a bare conclusion.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/18/24 P. v Hernandez CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081871

Plaintiff and Respondent, v. (Super. Ct. No. SCE400319)

ROBERTO HERNANDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Roberto Hernandez appeals from his second degree murder and attempted murder convictions. His appointed appellate counsel filed an opening brief raising no arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Hernandez also filed a supplemental brief on his own behalf. Our independent review confirms there are no arguable issues on appeal except a typographical error in the abstract of judgment regarding a firearm enhancement. We affirm with directions to correct that error.

FACTUAL AND PROCEDURAL BACKGROUND

James Bowens and Dwayne Clark robbed narcotics from Hernandez during a prearranged sale. As the two were running away, Hernandez fired approximately 10 shots at them, killing Bowens and injuring Clark.

Prosecutors charged Hernandez with murder (Pen. Code,1 § 187; count 1) and attempted murder (§§ 187, 664; count 2), alleging he personally used a firearm in both counts (§12022.53, subd. (d)). A jury convicted Hernandez of the crimes, finding the allegations true. The trial court sentenced Hernandez to 25 years to life on count 1, consisting of 15 years to life for the murder and 10 years for the firearm use. For count 2, the trial court imposed a concurrent 17 years, including seven for the attempted murder and 10 for the weapon enhancement.2 Hernandez filed a timely notice of appeal. His appointed appellate counsel filed an opening brief raising no issues and asking us to review the record for error under Wende and Anders. Counsel identified four potential issues to assist us in our independent review: (1) whether sufficient evidence supported Hernandez’s conviction; (2) whether the trial court erred in admitting preliminary hearing testimony from a witness it found 1 All subsequent statutory references are to the Penal Code.

2 Although on both counts the jury found true the firearm allegation under section 12022.53, subdivision (d), which carries a sentence of 25 years to life, the court imposed the lesser included 10-year enhancements under section 12022.53, subdivision (b), pursuant to People v. Tirado (2022) 12 Cal.5th 688. 2 unavailable; (3) whether Hernandez’s trial counsel misstated the law regarding voluntary manslaughter during closing argument; and (4) whether the prosecutor improperly appealed to sympathy for the victim during opening and closing argument. Hernandez filed his own supplemental brief, arguing he deserves a second look at his case because: (1) none of his jurors shared his skin color; (2) he was intoxicated during the shooting; (3) he was unaware of Clark’s presence, precluding the requisite intent for attempted murder; (4) his sentence is disproportionate to his criminal history and the circumstances of the crimes; (5) his trial counsel was inadequate; and (6) his jury was misled and misinformed.

DISCUSSION

We have reviewed the entire record as required by Wende and Anders, and considered the issues identified by Hernandez and his counsel. The abstract of judgment states that the 10-year firearm enhancement on count 2 was imposed under section 12022.53, subdivision (d), instead of subdivision (b) as ordered by the trial court. Otherwise, we find no arguable issue that would result in a reversal or modification of the conviction. Regarding the issues raised by Hernandez, his claims of jury racial bias and intoxication are not supported by the record. Hernandez also admitted at trial that he saw two individuals and fired in their direction, contradicting his alleged lack of awareness of Clark’s presence.!(6 RT 2060-2061)! As for Hernandez’s challenge to his sentence, there is no indication the trial court misapplied sentencing laws or abused its discretion. Finally, Hernandez’s claims of inadequate representation and the jury being misled are conclusory and find no support in the record.

3 Based on the foregoing, we affirm the judgment with directions to correct the abstract of judgment. Competent counsel has represented Hernandez on this appeal.

DISPOSITION

The abstract of judgment filed on February 18, 2023, shall be amended to reflect that the 10-year firearm enhancement on count 2 was imposed under section 12022.53, subdivision (b). The judgment is otherwise affirmed.

RUBIN, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DO, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12