California Court of Appeal Nov 16, 2021 No. E071837Unpublished
Filed 11/16/21 P. v. Fernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E071837
v. (Super.Ct.No. RIF1309149)
ADRIAN MARIA FERNANDEZ et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed with directions as to Fernandez; affirmed in part as
modified and reversed in part with directions as to Martinez.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and
Appellant, Adrian Fernandez.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant, Enrique Martinez.
1
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
briefing on the issue and Martinez argues that, under the amended law, his murder
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conviction must be reversed because the jury was wrongly instructed that he could be
convicted for murder without the requisite intent.2
At the time of trial, section 189 provided that “‘[a]ll murder . . . committed in the
perpetration of, or attempt to perpetrate . . . kidnapping [or other predicate crimes] . . . is
murder of the first degree.” “The mental state required” at the time was “simply the
specific intent to commit the underlying felony [citation], since only those felonies that
are inherently dangerous to life or pose a significant prospect of violence are enumerated
in the statute.” (People v. Cavitt (2004) 33 Cal.4th 187, 197, italics added.) If someone
perpetrated or attempted to perpetrate one of the enumerated felonies, they would be
deemed guilty of first degree murder for any homicide committed in the course of
committing the enumerated felony. (Ibid.) The trial judge instructed the jury on this law.
Thus, the jury could have found Martinez guilty of first degree murder if they found he
had the specific intent to kidnap the victim, even if they found he didn’t have the intent to
kill.
It was also possible at the time to convict Martinez of murder as an aider and
abettor under the natural and probable consequences doctrine. “A person who knowingly
aids and abets criminal conduct is guilty of not only the intended crime [target offense]
but also of any other crime the perpetrator actually commits [nontarget offense] that is a
2Though the amendment doesn’t go into effect until January 1, 2022, meaning the issue isn’t technically ripe, the People ask us to rule on the issue now out of a concern for judicial economy. We agree this is the better approach. Appellants’ cases cannot become final before the date the amendments become effective, so refusing to rule on the issue now serves no purpose but to delay resolution and proliferate judicial proceedings. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
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natural and probable consequence of the intended crime. The latter question is not
whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably foreseeable.” (People v. Medina, supra, 46 Cal.4th at p.
920 [cleaned up].) The trial judge instructed the jury the defendants could be found guilty
of murder if the killing was the natural and probable consequence of an uncharged
conspiracy to commit kidnapping. Thus the jury were permitted to find Martinez guilty of
murder, even if they found he intended only the kidnapping, so long as they found the
murder was reasonably foreseeable. (See People v. McCoy (2001) 25 Cal.4th 1111,
1117.)
The People concede the jury instructions are not consistent with current law but
argue Martinez was not prejudiced because the jury’s verdict establishes they found he
had the required intent to kill. We agree. The jury found the lying-in-wait and kidnapping
special circumstances to be true as to both Martinez and Fernandez. The trial court
instructed the jury that to find the lying-in-wait special circumstance true, they must find
defendants had a state of mind equivalent to premeditation and deliberation. The
kidnapping special circumstance instruction also required the jury to find the defendants
had the intent to kill. “The defendants are charged with the special circumstance of
intentional murder while engaged in the commission of kidnapping . . . . [¶] To prove that
this special circumstance is true, the People must prove that: [¶] 1. The defendant
committed or attempted to commit, or aided and abetted, or was a member of a
conspiracy to commit kidnapping; [¶] 2. The defendant intended to commit, or intended
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to aid and abet the perpetrator in committing, or intended that one or more of the
members of the conspiracy commit kidnapping; [¶] 3. If the defendant did not personally
commit or attempt to commit kidnapping, then another perpetrator, whom the defendant
was aiding and abetting or with whom the defendant conspired, personally committed or
attempted to commit kidnapping, [¶] [a]nd [¶] 4. The defendant intended that the other
person be killed. (CALCRIM No. 731, italics added.)
As we’ve noted, the jury found both special circumstances true as to both
defendants. It follows that the jury concluded Martinez acted with the intent to kill. These
findings foreclose the possibility that the jury convicted Martinez of murder, as they
could have done at the time, despite finding he did not intend to kill the victim.
Instructing the jury on those theories was harmless because we conclude beyond a
reasonable doubt that the record establishes the jury based its verdicts on a legally valid
theory. (See People v. Covarrubias (2016) 1 Cal.5th 838, 902, fn. 26.)
2. Fernandez
Fernandez also seeks the benefit of Senate Bill 1437 after Senate Bill 775
broadened it to apply to attempted murder. Among other changes, the amendment
“[c]larifies that persons who were convicted of attempted murder under . . . the natural
and probable consequences doctrine are permitted the same relief as those persons
convicted of murder under the same theories[.]” (Sen. Bill No. 775 (2020-2021 Reg.
Sess.) § 1(a).)
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The problem with Fernandez’s argument is the trial judge didn’t instruct the jury
that it could find him guilty of attempted murder under the natural and probable
consequences doctrine; he instructed the jury that they could find him guilty of murder or
kidnapping under such a theory. The key instruction is CALCRIM 417, which addresses
a defendant’s liability for the acts of coconspirators. “A member of a conspiracy is
criminally responsible for the crimes that he or she conspires to commit, no matter which
member of the conspiracy commits the crime. [¶] A member of a conspiracy is also
criminally responsible for any act of any member of the conspiracy if that act is done to
further the conspiracy and that act is a natural and probable consequence of the common
plan or design of the conspiracy.” The jury in this case was instructed that “[t]o prove
that the defendant is guilty of the crimes charged in Counts 1 and 2, the People must
prove that: [¶] 1. The defendant conspired to commit one of the following crimes:
murder, attempted murder, and/or kidnapping; [¶] 2. A member of the conspiracy
committed murder, attempted murder and/or kidnapping to further the conspiracy; [¶]
And [¶] 3. The murder, attempted murder, and/or kidnapping was a natural and probable
consequence of the common plan or design of the crime that the defendant conspired to
commit.” Count 1 was the murder charge and count 2 was the kidnapping charge. The
instruction plainly excluded count 3, the charge for attempted murder.
It’s true that the trial judge initially included count 3 in the oral instruction, but
Martinez’s counsel alerted the judge to the error and the judge cleaned up the instruction
immediately. “[Counsel] just pointed out to the Court that one of the instructions I just
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gave to you has an error in it. [¶] Now, you recall in CALCRIM 416 the evidence of the
uncharged conspiracy, I read to you the People contend that the defendants conspired to
commit one of the following crimes: Murder, as charged in Count 1, kidnapping, as
charged in Count 2. And then the next crime – I mean, the next CALCRIM is No. 1417.
And in that, I read to you this language: To prove that the defendant is guilty of the
crimes charged in Counts 1, 2, and 3, the People must prove that – well, the error that we
made is Count 3 should not be included. So to prove the defendants guilty of the crimes
charged, it would be in Counts 1 and 2, not Count 3; okay?” (Italics added.)
It follows that the jury was not given the choice of convicting Fernandez of
attempted murder under the natural and probable consequences doctrine. And as we’ve
noted in part II.E. ante, the jury was instructed on direct aiding and abetting principles,
which is not affected by Senate Bill No. 775, and substantial evidence supports a
conviction on that basis. We conclude the jury was not presented with a theory of liability
for attempted murder that could be deemed potentially erroneous when the modification
of section 1170.95 becomes effective. (See People v. Daniel (2020) 57 Cal.App.5th 666,
677, review granted Feb. 24, 2021, S266336 [holding petitions for resentencing may be
denied if the jury instructions show the jury was not instructed on either the natural and
probable consequences or felony murder doctrines].) Thus, Fernandez is not a person
convicted of attempted murder under the natural and probable consequences doctrine and
he is ineligible for relief under Senate Bill 775.
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K. Attempted Murder as a Lesser-Included Offense on Count 1
Martinez argues the trial court erred by declining his request to instruct the jury on
attempted murder as a lesser-included offense to the murder of Lopez.
Martinez’s counsel argued at trial that jurors could find Martinez guilty of
attempting to murder Lopez if they believed that Martinez shot at Lopez, but someone
else killed him. Counsel said, “juries do strange things and believe certain things and
come to conclusions in almost every case that I’ve done that are contrary to what the law
may necessarily require.” The trial judge responded by pointing out the prosecution had
presented three theories of liability—felony murder, aider and abettor, and conspiracy—
and attempted murder would not be a lesser-included offense. The court refused to offer
the instruction.
Even assuming attempted murder is a lesser-included offense of murder, the trial
court had no duty to instruct on that crime. A trial court has a “duty to instruct on a
lesser-included offense . . . if there is substantial evidence the defendant is guilty of the
lesser offense, but not the charged offense.” (People v. Breverman (1998) 19 Cal.4th 142,
177.) “In this context substantial evidence means evidence which is sufficient to deserve
consideration by the jury and from which a jury composed of reasonable persons could
conclude the particular facts underlying the instruction existed.” (People v. Oropeza
(2007) 151 Cal.App.4th 73, 78.) “In deciding whether evidence is ‘substantial’ in this
context, a court determines only its bare legal sufficiency, not its weight.” (Breverman, at
p. 177.) A trial judge is not required to instruct on theories “unsupported by any evidence
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upon which a reasonable jury could rely.” (People v. Moye (2009) 47 Cal.4th 537, 555.)
We exercise independent review of the trial judge’s decision not to instruct on attempted
murder. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Here, there was no substantial evidence Martinez merely tried to kill Lopez during
the initial shooting and that someone else shot him later. Rather, the evidence showed
appellants planned the killing in advance, lured Lopez to them, conducted a coordinated
pursuit of Lopez and participated in a shoot-out before kidnapping him in Martinez’s
Jeep. More, Lopez’s blood was found in the Jeep and Lopez’s decomposed body was
found a few days later. The notion that someone other than appellants killed Lopez is
fantastical. Accordingly, there was insubstantial evidence that the offense was less than
the charged crime of murder.
L. Suppression of Martinez’s Statement
Martinez argues the trial judge should have granted his motion to suppress his
statements to law enforcement, later played for the jury, because they were obtained in
violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
1. Additional background
Before trial, Martinez moved to suppress his statements to law enforcement. He
argued his waiver wasn’t knowing and voluntary because Spanish is his primary
language, and he didn’t understand his rights, and also because he never actually gave the
officers permission to interview him.
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The prosecutor argued Martinez did in fact appear to understand his rights at the
only interview he challenged—his first interview on August 13, 2013. On that occasion,
Martinez asked only one clarifying question and twice gave the investigators permission
to speak with him. They point out the interview was over an hour long, was conducted in
English, and that Martinez was able to understand and answer every question asked of
him.
The trial judge reviewed the video clips submitted by the defense. Martinez argued
the officers tried at least five times to get a waiver, but each time his conduct suggested
he didn’t understand what was being asked of him. He argued that even when he said, “I
want to talk to you,” it was not clear he knew what he was talking about. He emphasized
he kept telling the officers he didn’t know why he was at the station, or what he did
wrong. The officers responded, “I can’t talk to you. I need your permission to talk to you
first,” suggesting they didn’t have permission. Martinez then started talking about
pressures on his family. He never affirmatively said he wanted to talk to them. He argued
the interview was inadmissible because the officers never obtained Martinez’s explicit
permission. The prosecutor responded by noting Martinez said he understood his rights,
asked clarifying questions, and then said, “I want to talk to you. I want to be honest.”
The judge concluded Martinez did understand his rights, as he indicated to the
officer. Further, although the officers never obtained an explicit waiver of the rights, he
concluded a waiver was implicit in his response. The judge held Martinez’s statement
that, “Okay, but I want to talk to you guys. I want to be honest to you,” was a direct
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statement indicating he wanted to talk and had waived his rights. The trial judge denied
the motion to suppress and allowed the jury to hear Martinez’s statement.
2. Knowing and intelligent waiver
In Miranda, the United States Supreme Court held that before law enforcement
officials may interrogate a suspect who is in custody, they must clearly inform the
suspect of certain basic rights—“that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed.” (Miranda, supra, 384 U.S. at p. 444.) Unless
the suspect waives those rights, interrogation must cease. (Id. at pp. 445, 475-476.)
When challenged, the prosecution must prove, by a preponderance of the
evidence, that a defendant waived their Miranda rights. (People v. Williams (2010) 49
Cal.4th 405, 425.) Although a presumption exists against finding a waiver, “ultimately
the question becomes whether the Miranda waiver was knowing and intelligent under the
totality of the circumstances surrounding the interrogation.” (People v. Cruz (2008) 44
Cal.4th 636, 668.) A Miranda waiver may be express or implied. (People v. Sauceda-
Contreras (2012) 55 Cal.4th 203, 218-219.) “Where the prosecution shows that a
Miranda warning was given and that it was understood by the accused, an accused’s
uncoerced statement establishes an implied waiver.” (Berghuis v. Thompkins (2010) 560
U.S. 370, 384 (Thompkins).)
We accept the trial court’s resolution of disputed facts and inferences, as well as
its evaluations of the credibility of witnesses, as long as they are supported by substantial
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evidence. We determine independently whether those facts show that the challenged
statement was obtained unlawfully. (People v. Williams, supra, 49 Cal.4th at p. 425.)
Here, after engaging Martinez in some small talk, the investigator advised him of
his Miranda rights. Martinez said he understood, then said he could not afford a lawyer.
He questioned why he would need a lawyer to talk. The investigator told him he could
choose whether or not to talk and reminded him he was the one who asked for the
interview. Martinez then said, “I’m gonna talk to you.” Martinez also said he was worried
about retaliation and the investigator assured him his family was fine. Martinez then said,
“Okay, but I wanna talk to you guys but I wanna be honest to you.” Despite his promises
of honesty, Martinez repeatedly changed his story throughout the interview and never
completely told the truth, showing that he felt comfortable and was able to hold his own.
Martinez refers to the arguments made in the trial court as support for challenging
the trial judge’s decision. He concedes he acknowledged understanding his rights but
argues there is a fuller context, namely “when the officer immediately asked him if we
wanted to talk, Martinez asked if the officer could read his rights again.” When the
officer did so, Martinez asked, “So I don’t know how to buy a lawyer . . . . or hire or do
something like that. Why I need a lawyer right now to talk?” The officers then repeated
their query whether he wanted to talk and understood his rights, but Martinez never
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acknowledged he understood. According to Martinez, this shows he never waived his
rights and, even if he did, the waiver was not knowing and voluntary.
We conclude the trial court’s determination that Martinez understood his rights
and waived them was well supported. Martinez didn’t struggle to answer questions about
his identity, employment, and health. He said affirmatively that he understood his right to
an attorney, asked why he would need an attorney to talk, and said he had decided to talk.
He also expressed that his primary concern was for his family. He then had a long,
coherent conversation with the investigators. The fact that a defendant has some
difficulty with English does not render a waiver of Miranda rights invalid. (United States
v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 752 [“Despite the language difficulties
encountered by appellant, the evidence seems to indicate that he understood his rights and
voluntarily, knowingly, and intelligently waived them”].) We conclude the trial judge
was warranted in concluding that, though Martinez has limited skills in English, the
totality of the circumstances show he knowingly, intelligently, and voluntarily waived his
Miranda rights.
Nor do we conclude Martinez in fact requested a lawyer by remarking “So I don’t
know how to buy a lawyer . . . . or hire or do something like that. Why I need a lawyer
right now to talk?” Rather, Martinez was informing the investigators he couldn’t afford a
lawyer and didn’t feel he needed one to speak with them. “If an accused makes a
statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no
statement, the police are not required to end the interrogation . . . or ask questions to
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clarify whether the accused wants to invoke his or her Miranda rights.” (Thompkins,
supra, 560 U.S. at p. 381.) Courts have held isolated, ambiguous statements such as,
“Maybe I should talk to a lawyer,” and “[t]here wouldn’t be [an attorney] running around
here now, would there?” are not sufficiently clear invocations of the right that officers
must terminate an interview. (E.g., Davis v. United States (1994) 512 U.S. 452, 455;
People v. Scaffidi (1992) 11 Cal.App.4th 145, 153.) We conclude the remark did not
require the trial judge to find the investigator should have stopped questioning Martinez
and ask him again if he understood his rights.
M. Cumulative Error
Fernandez and Martinez argue the cumulative prejudicial effect of the trial court’s
errors require reversal.
“Under the cumulative error doctrine, the reviewing court must review each
allegation and assess the cumulative effect of any errors to see if it is reasonably probable
the jury would have reached a result more favorable to defendant in their absence.”
(People v. Williams (2009) 170 Cal.App.4th 587, 646 [cleaned up].) “The litmus test for
cumulative error is whether defendant received due process and a fair trial.” (People v.
Here, we have identified a few errors or potential errors at trial, but they were of a
very limited nature, affecting only marginal issues. As we’ve discussed, they were
harmless individually, and in our judgment, are harmless together. Appellants received a
fair, if not perfect, trial. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) This trial
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was fair beyond any reasonable doubt, despite a few scattered errors on peripheral issues.
(People v. Rivas (2013) 214 Cal.App.4th 1410, 1437.)
III
ANALYSIS OF SENTENCING ISSUES
A. Fernandez’s Abstract of Judgment
Fernandez argues there are two errors in his abstract of judgment. He argues the
abstract should be amended to show he has 1289 days of actual presentence custody
credits. Second, he argues his indeterminate terms on counts 1 (murder) and 3 (attempted
murder) should be deemed concurrent because the trial judge didn’t specify whether they
were concurrent or consecutive. The People concede both these points, and we agree.
At sentencing the trial judge said, “With regard to credit for time served, the
defendant is entitled to 1289 days. Because this is a first degree murder case, he’s not
entitled to any credit for time served.” It was a mistake to decline to award those credits.
(People v. Taylor (2004) 119 Cal.App.4th 628, 647.) “A sentence that fails to award
legally mandated custody credit is unauthorized and may be corrected whenever
discovered.” (Ibid.) Fernandez is entitled to 1289 days of presentence custody credit and
on remand the trial court shall prepare an amended abstract of judgment showing the
credit.
At sentencing, the trial judge sentenced Fernandez to life without possibility of
parole on count 1, life with the possibility of parole after seven years on count 3, and a
consecutive term of eight years on count 2, but didn’t specify whether the sentences on
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counts 1 and 3 would be consecutive or concurrent. “So that’s the defendant’s aggregate
sentence in this matter. It is a determinate sentence of eight years and an indeterminate
sentence of seven years to life without the possibility of parole on Count[s] 1 and 3. So
then that would be the aggregate sentence.”
The judge’s failure to specify whether the sentences would run consecutively
requires that they run concurrently. “Upon the failure of the court to determine how the
terms of imprisonment on the second or subsequent judgment shall run, the term of
imprisonment on the second or subsequent judgment shall run concurrently.” (§ 669,
subd. (b).) We therefore order that Fernandez’s abstract of judgment be amended to show
the sentences are to be served concurrently. (People v. Caudillo (1980) 101 Cal.App.3d
122, 126-127.)
B. Ability to Pay Hearing for Fernandez
Fernandez argues he is entitled to a hearing on his ability to pay certain fees and
fines levied against him under People v. Dueñas (2019) 30 Cal.App.5th 1157.
Specifically, he objects to the trial court’s imposition of a $5,000 restitution fine, a $90
criminal conviction assessment under Government Code section 70373, and a $120 court
operations fee under Penal Code section 1465.8.
Fernandez already had a hearing on his ability to pay the restitution fine. The
probation officer recommended Fernandez pay the $10,000 maximum restitution fine and
a $90 criminal conviction assessment based on his conviction on three counts. His
counsel asked the court to set the restitution fine at zero or some low amount because his
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wife was destitute and the family had no income. The trial judge agreed to reduce the
restitution fine. “With regard to the restitution fine, at the request of [Fernandez’s
counsel] I’m going to reduce that to $5,000, so that would be the restitution fine.”
However, the court ordered him to pay the $90 criminal conviction assessments and a
$120 court operations fee.
In Dueñas, the Court of Appeal held “the assessment provisions of Government
Code section 70373 and Penal Code section 1465.8, if imposed without a determination
that the defendant is able to pay, are . . . fundamentally unfair; imposing those
assessments upon indigent defendants without a determination that they have the present
ability to pay violates due process under both the United States Constitution and the
California Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also
concluded the restitution statute (section 1202.4) violates due process by prohibiting a
trial judge from considering a defendant’s ability to pay when imposing the minimum
restitution fine of $300. (Dueñas, at p. 1171.)
Fernandez is not entitled to relief under Dueñas. The trial court already considered
his ability to pay the fine and assessments against him. Even before Dueñas was decided,
the restitution statute allowed trial judges to consider an offender’s ability to pay
restitution above the $300 minimum award. Fernandez’s counsel took advantage of that
provision and explained Fernandez’s financial circumstances to the court. Though the
court could have reduced the restitution fine to as low as $300, he chose to reduce the
fine to $5,000 and to impose the additional $210 in assessments, despite his financial
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circumstances. Further proceedings “under the subsequent due process analysis in
Duenas” are not required because the trial judge already determined Fernandez was able
to pay $5,210 in fines and fees.
C. Resentencing for Kidnapping
Fernandez and Martinez argue the trial court erred by not staying their sentences
on their kidnapping counts under section 654, because the kidnapping special
circumstance already elevated their sentences for murder to life without possibility of
parole for the exact same acts. Martinez also argues the trial judge misunderstood his
sentencing discretion and that remand is required for that reason. The People concede the
second point but contest the first.
1. Staying the kidnapping sentences under section 654
Fernandez argues the trial judge erred by failing to stay the sentence on his
kidnapping count because “the jury found the special circumstance of kidnapping felony
murder to be true, that is, that the murder of Lopez was committed while Fernandez was
engaged in the commission of kidnapping Lopez . . . [and] [t]hat kidnapping of Lopez
was the same conduct against the same victim charged in count 2 for kidnapping, for
which the jury found Fernandez guilty.”
“An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
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provision.” (§ 654, sub. (a).) The purpose is to ensure punishment is commensurate with
culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Fernandez relies on that statutory language and People v. Montes (2014) 58
Cal.4th 809 to argue the kidnapping sentence must be stayed. The defendant in Montes
was convicted of felony murder, kidnapping during a carjacking, and carjacking, with
true findings on the special circumstances of murder in the commission of robbery,
kidnapping, and carjacking. (Id. at p. 819.) The trial judge “sentenced defendant to
concurrent terms on all four counts, including count II (kidnap during a carjacking) and
count III (carjacking), the predicate felonies for the finding of first degree murder on a
theory of felony murder.” The California Supreme Court held “section 654 precludes
imposition of separate terms for [underlying] felonies, [which] are the predicate felonies
for the theory of felony murder” because “felony murder was the sole theory of murder
under which the case was prosecuted.” (Id. at p. 898.)
This case is different. Felony murder was not the only theory on which Fernandez
and Martinez were prosecuted and convicted. In addition, the jury were instructed on
murder by means of lying in wait, murder by means of shooting from an occupied motor
vehicle, and first degree premeditated murder. Further, on the special circumstances, the
court instructed the jury on a lying-in-wait special circumstance in addition to the
kidnapping special circumstance. Most important, the special circumstance findings
establish the jury found Fernandez and Martinez to have committed the lying-in-wait
offense and the kidnapping offense. Thus, the trial judge was free to impose the murder
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sentence on one theory (lying-in-wait or premeditated murder) and the special
circumstance on the other (kidnapping). We therefore conclude section 654 does not
come into play and provides no basis for staying the sentences for kidnapping.
2. Sentencing discretion
Martinez argues the trial judge declined to apply section 654 to the kidnapping
count based on an incorrect belief that the murder count and the kidnapping count
involved separate victims, when in fact Lopez was the victim of both offenses.
Martinez is correct that the trial judge concluded section 654 didn’t apply
“because there is a different victim in Count 2 [kidnapping] than Count 1 [murder].” The
People properly concede the trial court made a factual error which requires correction.
“Relief from a trial court’s misunderstanding of its sentencing discretion is
available on direct appeal when such misapprehension is affirmatively demonstrated by
the record.” (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.) When it is unclear how
the judge would have otherwise exercised its discretion, we may order a limited remand
of the matter so that the judge may properly exercise its discretion and again decide
whether or not to stay the sentence on count 2. (Ibid.)
D. Corrections on Martinez’s Abstracts of Judgment
Martinez identifies several problems with his abstracts of judgment. First, he
argues—as Fernandez did—that his indeterminate terms on counts 1 (murder) and 3
(attempted murder) should be deemed concurrent. The People concede, and we agree.
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During Martinez’s sentencing, the court said, “So then, the defendant’s sentence, I
break down as follows: The total period [of] incarceration is a determinate term of 48
years and an indeterminate term of life without the possibility of parole. Now, I also
would order, pursuant to Penal Code section 669, that the defendant serve the determinate
term before he undertakes [serving] the indeterminate term. So, then, in summary, this is
the indeterminate sentence of life in prison without the possibility of parole, along with a
determinate term of 48 years in state prison.” As in Fernandez’s case, the judge’s failure
to specify whether the sentences would run consecutively requires that they run
concurrently, and we order that Martinez’s abstract of judgment be amended to show the
sentences are to be served concurrently. (§ 669, subd. (b); People v. Caudillo, supra, 101
Cal.App.3d at pp. 126-127.)
Second, he argues the trial judge improperly concluded he had no right to any
credits due to the nature of his conviction. Though Martinez had no right to conduct
credits, he did have a right to custody credits. (People v. Taylor, supra, 119 Cal.App.4th
at p. 647.) He was arrested on August 14, 2013 and sentenced on June 19, 2019 for a total
pre-sentence custodial period of 2,136 days. He has a right to the award of those credits
and on remand the trial court shall prepare an amended abstract of judgment showing the
credit.
Third, Martinez identifies two clerical errors in his abstract of judgment. He says
the section 12022.53, subdivision (c) enhancement attached should be included on the
CR-292 abstract which records the judgment on count 3, not the CR-290 determinate
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term abstract which records the judgment on count 2. He also says an attachment to the
abstract indicates he is subject to a $514.58 booking fee, when the trial court determined
“he does not have to pay the fines and fees until such time as it is determined that he has
the financial ability to do so.” The People concede these clerical errors and that it is
appropriate for this court to correct them. We agree. (People v. Mitchell (2001) 26
Cal.4th 181, 187-188 [“[W]here, as here, the Attorney General identifies an evident
discrepancy between the abstract of judgment and the judgment that the reporter’s
transcript and the trial court’s minute order reflect, the appellate court itself should order
the trial court to correct the abstract of judgment”].)
IV
DISPOSITION
We reverse Martinez’s sentence on count 2 and remand to the trial court to
exercise its discretion on whether to stay that sentence, understanding the offense had the
same victim as the offense in count 1. In addition, we direct the trial court to modify
Martinez’s abstract of judgment by (i) striking the $514.58 booking fee, (ii) adding the
section 12022.53, subdivision (c) enhancement to count 3, (iii) removing the
enhancement on count 2, (iv) recording that he has 2136 days of actual presentence time
served, and (v) recording that his sentences on counts 1 and 3 are to be served
concurrently, and to forward the modified abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects we affirm the judgment against
Martinez.
74
In Fernandez’s case, we direct the trial court to modify Fernandez’s abstract of
judgment to show he has 1289 days of actual presentence time served and his sentences
on counts 1 and 3 are to be served concurrently, and to forward the modified abstract of
judgment to the Department of Corrections and Rehabilitation. We affirm the judgment
against Fernandez as so modified.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
75
AI Brief
AI-generated · verify before citing
Holding. The court held that the accomplice testimony was sufficiently corroborated by independent evidence, and that substantial evidence supported the defendants' convictions for murder, attempted murder, and kidnapping. However, the court remanded the case for the limited purpose of correcting sentencing errors and amending the abstracts of judgment.
Issues
Whether the accomplice testimony was sufficiently corroborated under Penal Code section 1111.
Whether the trial court erred in admitting evidence of the defendants' Santa Muerte worship.
Whether substantial evidence supports the jury's verdicts.
Whether the trial court committed sentencing errors requiring remand.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“We conclude the accomplice testimony was sufficiently corroborated, there was no evidentiary or instructional error, and substantial evidence supports the verdicts.”
“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense”
“The independent evidence doesn’t have to corroborate every fact about which the accomplice testifies.”