People v. Hernandez CA4/2

Opinion

Filed 9/23/26 P. v. Hernandez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E088074 v. (Super.Ct.No. RIF2304870)

GILBERT FERNANDO HERNANDEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge.

Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 In this Anders/Wende matter,1 defendant and appellant Gilbert Fernando Hernandez appeals from the trial court’s entry of judgment following a jury verdict convicting him of robbery (Pen. Code, § 211; all further statutory references are to this code) and finding he personally used a firearm in committing the offense (§ 12022.53, subd. (b)). In bifurcated proceedings, the court at the prosecution’s request dismissed a prior strike allegation (§ 667, subd. (f)(2)) and a prior serious felony allegation (§ 667, subd. (a)). The court found three alleged aggravating factors true, including that defendant served five prior prison terms, his criminal history was of increasing seriousness, and he had engaged in violent conduct, including multiple prior convictions involving gun use (Cal. Rules of Court, rule 4.421(b)(1)-(3)), but the court found no evidence to support the allegation defendant used a semi-automatic handgun in committing the present offense (id., rule 4.421 (a)(2)). At sentencing, the court imposed the low term of two years for robbery, plus 10 years consecutive for the firearm enhancement.

On appeal, our independent review of the record and the law discloses no issues of arguable merit on which to request briefing by the parties. (See People v. Johnson (1981)

123 Cal.App.3d 106, 109 [“an arguable issue” requires “a reasonable potential for success” on appeal].) We therefore affirm the judgment.

1 Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436 (Wende).

2 BACKGROUND

The robbery victim testified that early on the morning of June 14, 2023, as he smoked a cigarette in his truck before going to work, defendant approached him from the mobile home park where the victim lived. Defendant drew a chrome handgun from his sweatshirt and pointed it at the victim from a foot or two away, moving it right next to the victim’s head. Defendant was aggressive and laughing; the victim feared for his life.

Defendant had a tattoo of a woman’s face on his neck. Calling the victim a “fucking Mexican,” defendant signaled for the victim to turn over what he had in his hand;

defendant snatched the pack of cigarettes and also took $120 or $130 in cash from the victim. Defendant told the victim to “watch yourself” and laughed as he departed on foot towards the mobile home park. The victim lived in fear at the park for two more weeks, and then moved away but still feared defendant. Security footage near the robbery site placed defendant in the area around the time of the robbery.

Defendant testified. He denied robbing or insulting the victim. He lived in the mobile home park with his girlfriend on the date of the robbery. Employed by his sister’s company, he did not need to rob anyone for cigarettes or anything else he wanted.

Defendant testified that the evening before the alleged robbery, his girlfriend called him “freaking out” because the victim was looking at her as she sat in the driver’s seat of her vehicle in the mobile home park. Defendant arrived in his vehicle, saw the victim “peeping” into the girlfriend’s car, and confronted him. The victim seemed surprised that anyone was in the car. Defendant politely requested that the victim “please 3 leave her alone because you’re scaring her,” to which the victim assented. Defendant said he wrote down his phone number for the victim to call him if he needed a friend or a girl. The two men then shook hands, according to defendant.

Defendant acknowledged being in the area where the robbery occurred early the next morning, but that was just to check that his vehicle had not been towed. Contrary to the victim’s testimony, defendant claimed he and the victim saw “each other a lot”

around the mobile home park, including in the months after the robbery. Defendant, age 45, admitted multiple prior felony convictions when he “was young and those are things that I cop to,” but he affirmed his testimony was true.

APPEAL AND REVIEW

Following the verdict, sentencing, and entry of judgment, defendant appealed.

This court appointed appellate counsel. Counsel’s review of the record and legal research uncovered no arguable issues to raise on appeal, including after consultation with Appellate Defenders, Inc. In reaching that conclusion, counsel noted two issues he ultimately rejected as lacking arguable merit, but flagged for our potential reconsideration in our independent review. Those issues are: (1) whether the trial court erred in overruling trial counsel’s objection to the prosecutor’s statement to the jury that defendant failed to call logical corroborating witnesses, and (2) whether the prosecutor improperly vouched for the victim’s credibility.

Defendant did not respond to notice from this court of his opportunity to personally file his own supplemental brief.

4 Having independently reviewed the record for potential error, we are satisfied defendant’s attorney has fully complied with the responsibilities of counsel and no issue of arguable merit on appeal exists. (People v. Kelly (2006) 40 Cal.4th 106, 126; Wende, supra, 25 Cal.3d at pp. 441-442.) We therefore affirm the judgment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS LEE J. We concur:

McKINSTER Acting P. J.

RAPHAEL J.