People v. Hernandez CA1/4

Filed 8/6/21 P. v. Hernandez CA1/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A161095
v.
FRANCISCO JESUS (Alameda County
HERNANDEZ, Super. Ct. No. 16CR002946)
Defendant and
Appellant.

A jury convicted Francisco Jesus Hernandez of two counts
of first degree murder (Pen. Code1, §§ 187, subd. (a), 189) (counts
1 & 2), one count of attempted murder (§§ 187, subd. (a), 664)
(count 3), one count of attempted arson causing great bodily
injury (§§ 451, subd. (a), 664) (count 4), and several special
allegations and circumstances. The trial court sentenced
Hernandez to a total sentence consisting of a determinate term of
19 years and 4 months and an indeterminate term of life without
the possibility of parole plus 50 years to life. Hernandez appeals,
arguing (1) there is insufficient evidence of premeditation and
deliberation to support the jury’s finding that he committed first

1 Undesignated statutory references are to the Penal Code.

1
degree murder; (2) there is insufficient evidence to support the
jury’s finding that he used gasoline and flame during the
commission of the attempted murder; (3) the trial court erred by
not instructing the jury sua sponte on self-defense; (4) the trial
court miscalculated the prison term for the attempted arson
count; and (5) the sentence for the attempted arson count should
be stayed under section 654 because it is based on the same acts
or course of conduct as the attempted murder count. We find the
evidence sufficient to support Hernandez’s conviction for first
degree murder but insufficient to show Hernandez personally
used gasoline and flame in the course of the attempted murder.
We reject Hernandez’s argument that the trial court had a sua
sponte duty to instruct the jury on self-defense. Like the
Attorney General, we agree that Hernandez’s sentence for the
attempted arson count should be modified, although we conclude
the correct sentence is different than what Hernandez and the
Attorney General propose. Finally, we agree with Hernandez
and the Attorney General that Hernandez’s modified sentence for
attempted arson must be stayed under section 654. We will
therefore modify the judgment and affirm the judgment as
modified.

BACKGROUND
Miguel C. testified at trial that one night in August 2016,
Juan R. drove Miguel C. and Alfonso I. in Miguel C.’s pickup
truck to the area where Hernandez lived.2 Miguel C. had tried to

Miguel C. knew Alfonso I. and Juan R. only by their
2

nicknames, “Poncho” and “Shadow.” Miguel C. also knew

2
drive earlier that night, but Juan R. had threatened to use a gun,
so Miguel C. had allowed Juan R. to drive. The pickup truck had
a single bench seat. Alfonso I. sat in the middle, and Miguel C.
sat in the passenger seat. Miguel C. did not know in advance
why they went to Hernandez’s neighborhood. However, Miguel
C. had heard that there were problems between Juan R. and
Hernandez.
When the three arrived in Hernandez’s neighborhood, Juan
R. did “doughnuts” with the truck, meaning driving around in
circles, burning rubber on the tires, and leaving marks on the
pavement, for about two minutes. Juan R. stopped and parked
the truck at the corner of an intersection, on the same side of the
street as Hernandez’s home. Hernandez and his son came out of
their house. As they came out, Hernandez and his son crouched
down and covered their faces. They crossed the street to a car
parked opposite Hernandez’s house and took two guns from the
behind the tire on the driver’s side.
Hernandez and his son approached the truck. Juan R.
asked Hernandez to give him a chance because he did not have a
gun. As he said this, Alfonso I. was surreptitiously passing a
silver revolver to Juan R. at a low level, from Alfonso I.’s lap to
Juan R.’s lap as the men were sitting in the truck. While Alfonso

Hernandez by the nickname “Pancho.” At trial, however, there
was no dispute about the various men’s identities. We refer to
the victims and witnesses by their first names and last initial out
of respect for their privacy. (Cal. Rules of Court, rule 8.90(b)(4),
(b)(10); Advisory Com. com., Cal. Rules of Court, rule 8.90 [courts
should consider referring to witnesses by first name and last
initial].)

3
I. was passing Juan R. the gun, Hernandez and his son began
shooting. Neither Juan R. nor Alfonso I. raised their gun or fired
any shots.
When the shooting started, Miguel C. got off the passenger
seat and crouched low on the floorboards. After he finished
shooting, Hernandez came to the passenger door of the truck and
pulled Miguel C. out of the truck onto the sidewalk. Hernandez
hit Miguel C. on his upper jaw and crushed his palate. Miguel C.
fell to the ground, and Hernandez and his son both beat him.
Miguel C. protested that he did not have anything to do with the
problems between Juan R. and Hernandez. Hernandez replied
that Miguel C. had come with them, so he was going to go with
them.
Hernandez then told his son, “You know what you have to
do.” Miguel C. stood up on the sidewalk next to the passenger
side of the truck, facing Hernandez with Hernandez’s son behind
him. Hernandez’s son then began shooting towards Miguel C.’s
back, with the bullets going past his sides. Hernandez’s son went
back into the house and reloaded, then came back outside and
resumed firing. At that time, Miguel C. was shot in his back, left
arm, right hand, and his left cheek. Hernandez then shot Miguel
C. from the front, in Miguel C.’s right shoulder. Miguel C. could
not run because there was a crowd of people on the other side of
the truck.
After Hernandez and his son shot Miguel C., Hernandez
told a third man, “Bring me gas.” The third man poured gasoline
on Miguel C. from a gasoline can. Hernandez then pushed

4
Miguel C. back into the pickup truck. Miguel C. saw Hernandez
put a lit piece of paper into the truck, and the truck caught fire
quickly. Miguel C.’s hands and sweatshirt were on fire. He
opened the door, got out of the truck, and took off his sweatshirt.
Hernandez said, “Look, he’s burning,” and laughed. Miguel C.
could not yell because of the injuries to his mouth, so he ran
away. After taking off his sweatshirt, Miguel C. hid in a nearby
vacant lot until he saw police cars arriving. He then stumbled to
an ambulance.
Several witnesses who lived in nearby homes largely
corroborated Miguel C.’s account of these events. Laura V. lived
next door to Hernandez, on the side farther away from where
Juan R. parked the truck. Laura V. recalled that the windows in
a vehicle belonging to Hernandez had been broken the day before
the shooting. The night of the shooting, Laura V. heard a fight
break out. She looked out the window of her bedroom facing the
street and saw Hernandez walking. She then turned into the
room to get her glasses. While she was retrieving her glasses,
she heard the sounds of about five gunshots. When she returned
to the window, she saw Hernandez’s back as he was standing on
the sidewalk shooting a few more shots at the truck or someone
in the truck. After the shooting, she turned inside to look at her
children who were in the room. She turned back to the window
and saw a gas can on the hood of the truck and someone running
out of the truck in flames. She then saw Hernandez come
running up the street in her direction to get into a car in the

5
middle of the street in front of her house. She heard Hernandez
laughing a heavy laugh as the man on fire ran away.
Two other witnesses, Erick E. and Maria S., lived in the
house across the street from where Juan R. parked the truck.
The sound of a vehicle doing doughnuts woke Erick E. at around
1:30 a.m. He smelled the burned tires from his bedroom. He did
not move because it was common for people to be doing
doughnuts in the street. He then heard two gunshots, the
screeching of a car peeling out, and what sounded like a vehicle
hitting a post. Erick E. moved to the living room, where he saw
through a window the truck parked on the street opposite his
house. Erick E. had a view straight at the driver’s side of the
truck. Erick E. saw Hernandez in the street walking towards the
truck and shooting eight or nine shots into the truck. While
Hernandez was shooting, he was yelling at the truck, “Why did
you do it?” Hernandez’s son was with him. Hernandez and his
son pulled a passenger out of the passenger side door, hit him,
and put him back in the truck. He then heard another, smaller
caliber shot. Erick E. saw someone put gasoline on the truck, but
he did not see who it was. Erick E. went back to his bedroom to
pick up his children, and then saw someone on fire running.
A few days before the shooting, Maria S. heard cars in the
neighborhood doing doughnuts. On the night of the shooting, she
awoke to hear five people yelling, “Why did you do that?” She
recognized Hernandez’s voice. She also heard a screech and what
sounded like the truck hitting a pole on the side of the road.
After taking her children to a back bedroom, Maria S. went to the

6
living room. Through a window, she saw Hernandez standing in
the street a couple feet from the truck, shooting at the driver.
Hernandez’s son then pulled the passenger out of the passenger
side of the truck, shot him, and beat him. Maria S. recalled that
Hernandez remained on the driver’s side of the truck.
Hernandez’s son and a third man put the passenger back in the
truck and put gasoline on the truck and on a shirt, then lit the
shirt on fire and threw it on the truck. Hernandez, his son, and
the third man ran up the street away from the truck and Maria
S. They were unable to start a limousine that belonged to
Hernandez, which was parked near Maria S.’s house.
The police later discovered 10 .40 caliber bullet casings in a
rainbow shape on the driver’s side of the truck, which indicated
that the shooter was moving while he was firing. The police also
discovered two .45 caliber casings on the passenger side of the
truck and one additional bullet casing in the passenger side of
the truck bed. They found no bullet casings in the truck. There
were doughnut marks on the street near where the truck parked,
as well as on an extension cord running from Hernandez’s house
to the limousine parked across the street from his house. A
search of Hernandez’s house later revealed boxes of .45 caliber
ammunition. A bullet removed from Miguel C.’s mouth was
determined to be .45 caliber. A search of the pickup revealed a
silver .25 caliber semi-automatic pistol on the floor in front of the
driver’s seat with one cartridge in the chamber and three in the
magazine that could hold six cartridges.

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 After a seven-day trial, the jury deliberated for about two
hours before finding Hernandez guilty of two counts of first
degree murder of Juan R. and Alfonso I. (§§ 187, subd. (a), 189),
one count of attempted murder of Miguel C. (§§ 187, subd. (a),
664), and one count of attempted arson causing great bodily
injury by burning the truck containing Miguel C. (§§ 451,
subd. (a), 664). The jury found true a multiple-murder special
circumstance. (§ 190.2, subd. (a)(3).) As to the counts of first
degree murder, the jury found true the special allegations that
Hernandez was personally armed with a firearm, personally used
a firearm, and personally and intentionally discharged a firearm
causing great bodily injury or death during the commission of the
offenses. As to the count of attempted murder, the jury found
true the special allegations that Hernandez personally used a
firearm and personally used a deadly and dangerous weapon, i.e.,
gasoline and flame, during the commission of the offense. The
trial court sentenced Hernandez to life without possibility of
parole on the first degree murder counts with consecutive
enhancements of 25 years to life for each count. The court
sentenced Hernandez to seven years with 10-year and one-year
enhancements for the attempted murder, with the one-year
enhancement stayed, and to two years and four months for the
attempted arson count, with both sentences to run consecutive to
the sentence on count 1. In total, this amounted to a determinate
sentence of 19 years and four months and an indeterminate
sentence of life without possibility of parole plus 50 years to life.

8
 DISCUSSION

I. Sufficiency of evidence
Hernandez argues the evidence was insufficient to show
either that the homicides of either Juan R. or Alfonso I. were
deliberate and premeditated or that he personally used gasoline
and flame in the attempted murder of Miguel C. “Upon a
challenge to the sufficiency of evidence for a jury finding, we
‘ “ ‘ “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ ” ’ [Citation.] ‘The
standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.’ ” (People v. Rivera
(2019) 7 Cal.5th 306, 323–324.)
A. First degree murder
“Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.” (§ 187, subd. (a).) If a killing is
“ ‘willful, deliberate, and premeditated,” ’ it is first degree
murder. (§ 189.) “ ‘A verdict of deliberate and premeditated first
degree murder requires more than a showing of intent to kill.
[Citation.] “Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation”
means thought over in advance. [Citations.]’ [Citation.]
‘ “Premeditation and deliberation can occur in a brief interval.
‘The test is not time, but reflection. “Thoughts may follow each
other with great rapidity and cold, calculated judgment may be

9
arrived at quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th
792, 812.) “ ‘An intentional killing is premeditated and deliberate
if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’ ” (People v. Pearson
(2013) 56 Cal.4th 393, 443.)
“In People v. Anderson (1968) 70 Cal.2d 15 [(Anderson)],
[the California Supreme Court] observed that ‘[t]he type of
evidence which [it] has found sufficient to sustain a finding of
premeditation and deliberation falls into three basic categories’:
(1) facts about planning activity ‘prior to the actual killing which
show[s] that the defendant was engaged in activity directed
toward, and explicable as intended to result in, the killing’; (2)
‘facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a
“motive” to kill the victim’; and (3) ‘facts about the nature of the
killing from which the jury could infer that the manner of killing
was so particular and exacting that the defendant must have
intentionally killed according to a “preconceived design.” ’
[Citation.] ‘Since Anderson, [the California Supreme Court has]
emphasized that its guidelines are descriptive and neither
normative nor exhaustive, and that reviewing courts need not
accord them any particular weight.’ ” (People v. Rivera, supra,
7 Cal.5th at p. 324.)
Hernandez contends the evidence that he retrieved a gun
before confronting the men in the truck, that he shot multiple
rounds at Juan R. and Alfonso I., and that he lit the truck on fire
after telling Miguel C. that he came with the men in the truck so

10
would leave with them, is insufficient to show premeditation and
deliberation. We disagree and conclude that this evidence, when
considered in conjunction with other facts adduced at trial,
sufficiently supports the jury’s verdict.
Using the first factor from Anderson, supra, 70 Cal.2d at
pages 26–27, Hernandez’s decision to stash a weapon in the car
across the street from his house in advance, walk to the car and
arm himself after the truck parked, and then approach the truck
might be construed, as Hernandez urges, as Hernandez taking
the prudent step of arming himself before approaching the truck
that had done doughnuts in the street to get his attention. But
the jury could also construe these facts as indicating Hernandez
had prepared for violence, and other circumstances of the
shooting support that interpretation. Juan R.’s initial comment
when Hernandez approached, asking Hernandez to give him a
chance because he was unarmed, suggests that Hernandez was
already threatening violence against Juan R. before perceiving
any specific threat from the occupants of the truck. Hernandez
notes that Alfonso I. was surreptitiously passing a gun to Juan R.
when Hernandez approach the truck and opened fire. But the
surreptitious nature of that action makes it unlikely that
Hernandez ever saw the gun in the truck. Alfonso I. kept the gun
low, at the height of the men’s laps, precisely to keep it out of
Hernandez’s view a few steps away. Additionally, Erick E.
testified that Hernandez was walking towards the truck when he
was shooting. This indicates that Hernandez was calmly
carrying out an attack on Juan R., Alfonso I., and Miguel C.

11
rather than reacting to seeing anything inside the truck. This is
inconsistent with Hernandez’s theory that he acted defensively.
If Hernandez had opened fire only after getting near enough to
the truck to argue or see a gun in the truck, he likely would have
run quickly and fired while backing away from the truck, not
walked closer to the truck.
Hernandez briefly posits that someone in the truck must
have fired the gun earlier, or that there was more than one gun,
based on Erick E.’s testimony that he heard two shots before
Hernandez began firing, Miguel C.’s statement that he saw
Alfonso I. pass a revolver to Juan R. (as opposed to the semi-
automatic pistol found in the truck), and that the pistol had the
capacity to hold seven rounds but contained only four when the
police recovered it. Hernandez’s reading of the evidence may be
plausible, but the jury reasonably concluded otherwise, based on
the absence of any bullet casings in the truck, Miguel C.’s
testimony that he had never seen the gun before Alfonso I.
passed it to Juan R., Miguel C.’s further testimony that no one
ever fired the gun or held it in the air, and the fact that Erick E.
was the only witness who mentioned hearing any shots before
Hernandez opened fire on the truck.
Looking to the second factor from Anderson, supra,
70 Cal.2d at page 27, Hernandez next argues that there was no
evidence of a motive beyond self-preservation. But Miguel C. was
aware before the shooting that Juan R. had some sort of
disagreement with Hernandez. Someone had broken the
windows in one of Hernandez’s vehicles the day before the

12
shooting. As Hernandez admits, by spinning doughnuts in the
street Juan R. appeared to be trying to get Hernandez’s
attention. Two witnesses also testified that they heard
Hernandez yelling, “Why did you do it?” during the incident.
This evidence could indicate that Hernandez shot Juan R. in
retaliation for the damage to Hernandez’s vehicle, the perceived
slight of Juan R. spinning doughnuts near Hernandez’s house, or
both. The jury could make these inferences despite the
unreasonableness or incomprehensibility of such a motive to a
reasonable person. (People v. Pensinger (1991) 52 Cal.3d 1210,
1238.) Hernandez characterizes his question, “Why did you do
that?” as an attempt to engage Juan R. and Alfonso I. in
conversation, but considering that Hernandez was yelling at the
men, those same words could be viewed as cries of rage betraying
his reasons for the killing rather than genuine queries to his
victims. Even if we agreed with Hernandez that this evidence
undermines a finding of motive, reconciliation of conflicts in the
evidence is squarely within the province of the jury. (People v.
Stanley (1995) 10 Cal.4th 764, 792–793 [“ ‘Although it is the duty
of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury,
not the appellate court which must be convinced of the
defendant’s guilt beyond a reasonable doubt. “ ‘If the
circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also

13
reasonably be reconciled with a contrary finding does not warrant
a reversal of the judgment.’ ” ’ ”].)
As to the third factor from Anderson, supra, 70 Cal.2d at
page 27, Hernandez maintains the manner of killing Juan R. and
Alfonso I. by emptying a gun into the cab of the truck does not
show premeditation or deliberation. He notes that the rainbow
pattern of the shell casings indicates he was moving while
shooting, not standing still in an execution-style killing.
Hernandez also contrasts how the shots were fired in rapid
succession with a shooting in which the killer pauses between
shots and has a moment to reflect. As with Hernandez’s other
evidentiary arguments, his inferences are logical but are not the
only inferences supported by the evidence, particularly when
considered in light of additional facts. Hernandez’s movement is
unlike a stationary execution-style killing, but the fact that Erick
E. observed him moving towards the truck rather than away from
it, and walking instead of running or moving quickly, indicates
that Hernandez was calm, collected, and focused on killing his
victims. Hernandez also ignores his behavior after shooting Juan
R. and Alfonso I., in which he methodically shot and beat Miguel
C. and participated in the burning of the truck with Miguel C. in
it. Hernandez told Miguel C. that he would leave with Juan R.
and Alfonso I. because he came with them, displaying a cold,
implacable desire to kill. Hernandez also gave deliberate
instructions to his son to participate in the killing, telling him,
“You know what you have to do.” Finally, Miguel C. and Laura
V. both heard Hernandez laugh after lighting Miguel C. on fire.

14
A jury could easily conclude from Hernandez’s behavior that
Hernandez was acting in a cool and collected fashion, which
would support a finding of deliberation and premeditation.
This case presents the inverse scenario from People v.
Boatman (2013) 221 Cal.App.4th 1253. That decision held the
evidence of Boatman’s premeditation and deliberation was
insufficient, in part based on his behavior after the shooting.
(Id. at p. 1267.) There, after the shooting, Boatman was horrified
and distraught, told his brother to call the police, could be heard
crying in the background during the 911 call, tried to resuscitate
the victim, and asked the police to call an ambulance when they
arrived. (Ibid.) The court concluded this and other evidence,
even when viewed in the light most favorable to the prosecution,
strongly suggested a lack of a plan to kill the victim and showed
the manner of killing was not so exacting that Boatman must
have killed according to a preconceived design. (Ibid.)
Hernandez’s behavior after killing Juan R. and Alfonso I. could
not be more different. His apparently remorseless campaign to
inflict more suffering and death on Miguel C. after killing Juan
R. and Alfonso I. strongly suggests Hernandez was acting with
deliberation and purpose.
In short, while some aspects of the record might support
Hernandez’s view of the evidence, when considered as a whole,
the evidence is sufficient to support the jury’s finding beyond a
reasonable doubt that Hernandez was guilty of first degree
murder. (People v. Brady (2010) 50 Cal.4th 547, 565 [“The mere

15
possibility of a contrary finding as to defendant’s mental state
does not warrant a reversal of the guilt judgment”].)
B. Sufficiency of evidence that Hernandez used gasoline
and flame
Hernandez’s second attack on the sufficiency of the
evidence is directed at the jury’s finding that during the
commission of the attempted murder of Miguel C., he personally
used a deadly weapon in the form of gasoline and flame. Section
12022, subdivision (b)(1) states, “A person who personally uses a
deadly or dangerous weapon in the commission of a felony or
attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for one
year, unless use of a deadly or dangerous weapon is an element of
that offense.” Hernandez’s argument rests on his assertion that
none of the four witnesses to the crime testified that he
personally doused Miguel C. with gasoline. Laura V. told the
jury she did not see how the fire started. Maria S. testified that a
third person poured gasoline on the truck and lit it. Erick E.
testified that “they” put gasoline on the truck to start the fire.
But when asked whether he recognized the person who put
gasoline on the truck, Erick E. admitted he did not see who put
the gasoline on the truck. Miguel C. testified that Hernandez
told a third person to fetch gas, and then the third person put the
gasoline on Miguel C. Miguel C. said that Hernandez then put
Miguel C. back into the truck and put a lit piece of paper into the
truck, causing the truck and Miguel C. to catch fire. Hernandez
also notes that the prosecutor, in her closing argument, conceded

16
that this evidence was insufficient to prove Hernandez personally
used the gasoline and flame and told the jury to find that
allegation was not true.
We agree with Hernandez that this testimony is
insufficient to prove he personally used the gasoline. The only
witness who directly connected Hernandez to the burning was
Miguel C. He testified that someone else poured the gasoline but
Hernandez lit it. The jury was instructed that a person
personally uses a deadly and dangerous weapon if he or she
intentionally “[p]ours gasoline into and around a truck and then
lights a fire and throws the flame onto the gasolined truck
causing the truck to be inflamed while another person is
occupying the truck.” Perhaps because of this instruction, the
Attorney General does not argue that the jury could have found
the allegation true based on Hernandez’s use of the flame but not
the gasoline. In light of the jury instruction and the Attorney
General’s position, we accept for purposes of this case that
Hernandez had to personally use both gasoline and fire to satisfy
the allegation. Given the lack of testimony connecting
Hernandez to the gasoline, the evidence supporting the allegation
is insufficient.
The Attorney General claims the verdict finds sufficient
support in additional testimony by Erick E. on cross-examination
that he saw no third person in the area and that he believed
Hernandez and his son were the ones who doused the truck. The
testimony in question is not as clear as the Attorney General
contends, but it is unnecessary to parse it closely. At best, Erick

17
E.’s remarks could be construed to indicate that only Hernandez
or his son were in the area and could have poured the gasoline
and lit it. Erick E. never specifically identified Hernandez,
rather than his son, as the person who used the gasoline and
flame. Especially when considered in conjunction with Erick E.’s
admission on direct examination that he did not see who started
the fire, the testimony cited by the Attorney General cannot
support the jury’s finding that Hernandez personally used the
gasoline and flame. We will therefore strike the one-year
enhancement, which had been stayed, from the sentence.

II. Instruction on self-defense
Hernandez next contends his murder convictions should be
reversed because the trial court failed to instruct the jury on self-
defense.
“ ‘ “It is settled that in criminal cases, even in the absence
of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the evidence.
[Citations.] The general principles of law governing the case are
those principles closely and openly connected with the facts
before the court, and which are necessary for the jury’s
understanding of the case.” ’ ” (People v. Breverman (1998)
19 Cal.4th 142, 154.) “In the absence of a request for a particular
instruction, a trial court’s obligation to instruct on a particular
defense arises ‘ “only if [1] it appears that the defendant is
relying on such a defense, or [2] if there is substantial evidence
supportive of such a defense and the defense is not inconsistent
with the defendant’s theory of the case.” ’ ” (People v. Dominguez

18
(2006) 39 Cal.4th 1141, 1148.) “In determining whether the
evidence is sufficient to warrant a jury instruction, the trial court
does not determine the credibility of the defense evidence, but
only whether ‘there was evidence which, if believed by the jury,
was sufficient to raise a reasonable doubt.’ ” (People v. Salas
(2006) 37 Cal.4th 967, 982.) “We review a claim of instructional
error de novo.” (People v. Barber (2020) 55 Cal.App.5th 787, 798.)
Hernandez contends the trial court should have delivered
CALCRIM No. 505. That instruction states that a defendant kills
in lawful self-defense if (1) the defendant reasonably believed
that he was in imminent danger of being killed or suffering great
bodily injury, (2) the defendant reasonably believed that the
immediate use of deadly force was necessary to defend against
that danger, and (3) the defendant used no more force than was
reasonably necessary to defend against that danger. (See People
v. Stitely (2005) 35 Cal.4th 514, 551 [“a homicide is justifiable
and noncriminal where the actor possessed both an actual and
reasonable belief in the need to defend”].) Hernandez contends
substantial evidence supported this instruction based on the
testimony that Juan R. did doughnuts in the street, someone
“perhaps” fired gunshots before or during the doughnuts,
Hernandez argued with the men in the truck, and Alfonso I. was
passing a gun to Juan R. in the truck.
Hernandez’s trial counsel explained to the trial court his
decision not to request an instruction on self-defense or argue
that theory. After the jury began deliberations, Hernandez’s trial
counsel told the trial court, “When I spoke in my opening

19
statement, I mentioned the possibility of self-defense, and when
we were going over jury instructions, I did not request self-
defense. Having gone through the case and not having put on
any evidence of self-defense, I made the decision not to argue
that. As the Court knows, my argument was that they can’t
identify my client. The prosecutor didn’t prove her case. I
wanted to make a record that that was a choice by me not to
request self-defense.” This statement makes clear that
Hernandez’s counsel acquiesced in the trial court’s failure to
instruct on self-defense because of his tactical choice to defend
the case on the issue of identity.
A trial court has a sua sponte duty to instruct on a defense
only where the defense is not inconsistent with the defendant’s
theory of the case. (People v. Dominguez, supra, 39 Cal.4th at
p. 1148.) Hernandez’s theory of the case in the trial court was
that the witnesses had not sufficiently identified him as the
shooter. Presenting an instruction on self-defense, which the jury
could only find if it concluded Hernandez had been the shooter,
would have been directly contrary to Hernandez’s theory of the
case, as demonstrated by his trial counsel’s deliberate
acquiescence in the lack of the self-defense instruction. This
obviated the need for the trial court to instruct on self-defense,
regardless of whether substantial evidence would have supported
such an instruction. (People v. Jo (2017) 15 Cal.App.5th 1128,
1165 [trial court need not instruct on inconsistent defenses
“ ‘because of the potential prejudice to defendants if instructions
were given on defenses inconsistent with the theory relied upon’ ”

20
and because such instructions “ ‘would hamper defense
attorneys,’ ” italics omitted].)
Moreover, any error in failing to instruct on self-defense
was harmless even under the stricter federal standard that
Hernandez asks us to apply. (See People v. Gonzalez (2018)
5 Cal.5th 186, 199 [California Supreme Court has “yet to
determine whether a trial court’s failure to instruct on a
requested affirmative defense instruction supported by
substantial evidence is federal constitutional error or state law
error”]; Chapman v. California (1967) 386 U.S. 18, 24 [federal
test for harmless error is whether the error was harmless beyond
a reasonable doubt].) The jury was instructed on both first
degree and second degree murder. The jury’s choice to convict
Hernandez of first degree murder demonstrates it believed he
had the more culpable mental state of acting willfully,
deliberately, and with premeditation. (§ 189.) This finding is
inconsistent with Hernandez’s theory on appeal that he shot in
self-defense only after developing a reasonable fear of imminent
harm from hearing shots, seeing Juan R. spinning doughnuts in
the truck, and seeing Alfonso I. pass Juan R. a gun. The lack of
an instruction was therefore harmless. (People v. Barnett (1998)
17 Cal.4th 1044, 1156 [first degree murder verdict indicated jury
rejected claim that intoxication interfered with ability to form the
requisite mental states, so lack of involuntary intoxication
instruction was harmless]; People v. Prettyman (1996) 14 Cal.4th
248, 276 [conviction on first degree murder instead of second

21
 degree murder showed the omission of instruction on involuntary
manslaughter was harmless].)
Hernandez’s evidence of self-defense was also weak, so we
are confident any jury would have rejected his self-defense claim.
As discussed above, the evidence that anyone in the truck fired a
gun before Hernandez shot Juan R. and Alfonso I. is thin. Erick
E. alone testified to hearing shots before Hernandez began
shooting, and his testimony was contradicted by the absence of
any shell casings in the pickup and Miguel C.’s testimony that
neither Juan R. nor Alfonso I. fired the gun. Hernandez’s theory
that the gun in the pickup was visible to him is pure speculation,
given Miguel C.’s testimony that Alfonso I. passed the gun
surreptitiously, at the level of the men’s laps. When contrasted
with the strong evidence of Hernandez’s willful and deliberate
actions in firing on the truck while walking towards it, displaying
an implacable intent to kill Miguel C. after shooting Juan R. and
Alfonso I., and laughing after the crimes, a self-defense
instruction would not have changed the outcome under any
standard of review.

III. Sentence for attempted arson causing great bodily
injury or death
Hernandez contends, and the Attorney General agrees, that
his sentence for attempted arson causing great bodily injury or
death under section 451, subdivision (a) must be reduced and
stayed. We are not bound by the Attorney General’s confession of
error. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.)
After independently reviewing the issues, we agree with the

22
parties that Hernandez’s sentence must be modified, but not in
precisely the fashion the parties have proposed. We also agree
that the modified sentence should be stayed.
A. Proper sentence
The trial court sentenced Hernandez to a consecutive
sentence of two years and four months in prison for the
attempted violation of section 451, subdivision (a). It appears to
have calculated this sentence by taking one-third of the middle
term specified in that statute, which is seven years.
Hernandez rightfully points out that this sentence fails to
account for the fact that he was convicted of attempted arson
causing great bodily injury, not the completed offense. “We may
correct an unauthorized sentence.” (People v. Cantrell (2009)
175 Cal.App.4th 1161, 1165.) Hernandez asks us to correct the
error by applying section 664, which states what when no other
statute specifies the punishment for an attempted crime and the
crime attempted is punishable by imprisonment in the state
prison, the attempted crime shall be punished by imprisonment
“for one-half the term of imprisonment prescribed upon a
conviction of the offense attempted.” (§ 664, subd. (a).)
Combining section 664 with section 451, subdivision (a) would
yield a sentence of three years and six months. Hernandez and
the Attorney General agree that this is the appropriate sentence.
Hernandez initially argued that, like the trial court, we should
reduce this by one-third pursuant to section 1170.1, subdivision
(a), which governs the length of consecutive sentences on multiple
felony counts. But he ultimately agreed with the Attorney

23
General that section 1170.1, subdivision (a) is inapplicable
because the sentence will be stayed pursuant to section 654, as
discussed, post. (Cantrell, at p. 1164.)
As Hernandez and the Attorney General acknowledge,
section 455 establishes a different sentence. Section 455,
subdivision (a) defines a crime of attempted arson, stating, “Any
person who willfully and maliciously attempts to set fire to or
attempts to burn or to aid, counsel or procure the burning of any
structure, forest land or property, or who commits any act
preliminary thereto, or in furtherance thereof, is punishable by
imprisonment in the state prison for 16 months, two or three
years.” If we were to apply this statute, with neither party
asking us to remand for resentencing, we would select the middle
term like the trial court and set Hernandez’s sentence at two
years.
Hernandez and the Attorney General believe section 455
does not apply here because Hernandez was charged with arson
causing bodily injury under section 451, subdivision (a), which is
beyond the scope of attempted arson in section 455.3 We disagree
and conclude that section 455 establishes the proper sentence.
This case is comparable to People v. Alberts (1995) 32 Cal.App.4th
1424 (Alberts). There, Alberts was charged with attempted arson

3 Section 451 states, “A person is guilty of arson when he or
she willfully and maliciously sets fire to or burns or causes to be
burned or who aids, counsels, or procures the burning of, any
structure, forest land, or property. [¶] (a) Arson that causes great
bodily injury is a felony punishable by imprisonment in the state
prison for five, seven, or nine years.”

24
of an inhabited structure under section 451, subdivision (b) and
section 664. (Alberts, at p. 1426.) She moved to dismiss, arguing
that section 455, not section 451, established the crime of
attempted arson. (Alberts, at p. 1426.) The trial court denied the
motion, ruling that section 451, subdivision (b) provided a more
particularized punishment for certain kinds of arson, such as
arson of an inhabited structure. (Alberts, at p. 1426.) After a
bench trial, the court convicted Alberts and sentenced her
according to sections 664 and 451, subdivision (b). (Alberts, at
pp. 1425–1426.)
The Court of Appeal agreed with the defendant that section
455 applied rather than the combination of the general attempt
statute in section 664 and subdivision (b) of section 451. (Alberts,
supra, 32 Cal.App.4th at p. 1427.) The court first recited the rule
of lenity. (Ibid.) It then noted that section 664 by its terms
applies only in the absence of another applicable statute.
(Alberts, at pp. 1427–1428.) It found that section 455 was
another applicable statute, and that ignoring it would improperly
require the court to judicially re-write section 455 so it specified
the punishment for attempted arson of any structure except an
inhabited dwelling. (Alberts, at pp. 1427–1428.) Alberts further
observed that section 455 applies to all structures, while section
451, subdivision (b) applies only to the subset of inhabited
structures. (Alberts, at p. 1428.) After finding this meant the
two statutes irreconcilably conflicted, Alberts then applied section
455 as a more specific statute than the combination of sections
451, subdivision (b) and 664. (Alberts, at p. 1428.)

25
 The position of Hernandez and the Attorney General
here—that section 451, subdivision (a) governs Hernandez’s
actions because they caused great bodily injury—is essentially
identical to the prosecutor’s argument in Alberts that section 451,
subdivision (b) governed Alberts’ arson because it involved an
inhabited structure. We reject it for similar reasons as Alberts.
On its face, section 664 establishes the punishment for an
attempt to commit a crime only “where no provision is made by
law for the punishment of those attempts.” Because section 455
addresses attempted arson, this condition is not met. Likewise,
section 455 can be viewed as more specific to the crime of
attempted arson, and it therefore prevails over the general
attempt statute in section 664.
The parties argue that section 455 concerns arson affecting
property, while section 451, subdivision (a) applies to arsons
causing great bodily injury. This is incorrect, as section 451,
subdivision (a) criminalizes only the burning of “any structure,
forest land, or property” that causes great bodily injury. In other
words, section 451, subdivision (a) requires the burning of
property, just like section 455. (§ 455, subd. (a) [setting the
punishment for “[a]ny person who willfully and maliciously
attempts to set fire to or attempts to burn or to aid, counsel or
procure the burning of any structure, forest land or property, or
who commits any act preliminary thereto, or in furtherance
thereof,” italics added].) Regardless, even if section 451,
subdivision (a) could be viewed as more specific because of its
concern with great bodily injury, that would still only place

26
section 455 on equal footing with sections 664/451,
subdivision (a), with the former more specific as to the attempt
aspect of the crime and the latter more specific as to its effects.
The rule of lenity dictates that when two statutory
interpretations are thus in equipoise, the “ ‘[i]t is the policy of
this state to construe a penal statute as favorably to the
defendant as its language and the circumstances of its
application may reasonably permit.’ ” (Alberts, supra,
32 Cal.App.4th at p. 1427.) Although Hernandez asks us to apply
sections 664/451, subdivision (a), the rule of lenity here favors
applying section 455, as his sentence under that statute would be
two years, rather than three years and six months under sections
664/451, subdivision (a). We will therefore apply section 455.
As in Alberts, the proper remedy in this case is to modify
the judgment to reflect that Hernandez was convicted of one
count of violating section 455 and reduce the sentence to two
years in state prison.4

4 We perceive no detriment to modifying Hernandez’s
conviction in this fashion after trial. If anything, attempted
arson under section 455 “greatly enlarges the concept of attempt”
as compared with section 664 and section 451. (2 Witkin and
Epstein, Cal. Crim. Law (4th ed. 2021) Crimes Against Property,
§ 272.) Section 455 also lacks the element of great bodily injury.
(Cf. CALCRIM 1501 [arson causing great bodily injury under
§ 451, subd. (a)] with CALCRIM 1520 [attempted arson under
§ 455].) Hernandez’s prosecution under sections 664/451,
subd. (a) was therefore likely more favorable to him than a trial
on the correct charge would have been, as the prosecution’s
charging choice required it to prove the additional element of
great bodily injury.

27
B. Section 654
Hernandez’s argument for staying the attempted arson
sentence rests on section 654. Subdivision (a) of that statute
states, “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 provision.” Neal v. State (1960) 55 Cal.2d 11, disapproved of
on other grounds by People v. Correa (2012) 54 Cal.4th 331, 334,
established the governing test for determining whether section
654 bars multiple punishments in a particular case. “Even
though section 654 refers to an ‘act or omission,’ the Neal court
opined that ‘[f]ew if any crimes . . . are the result of a single
physical act.’ [Citation.] Accordingly, the relevant question is
typically whether a defendant’s ‘ “course of conduct . . . comprised
a divisible transaction which could be punished under more than
one statute within the meaning of section 654.” ’ ” (Correa, at
p. 335.)
“Whether a course of conduct is indivisible depends upon
the intent and objective of the actor.” (People v. Perez (1979)
23 Cal.3d 545, 551.) “ ‘Whether the facts and circumstances
reveal a single intent and objective within the meaning of Penal
Code section 654 is generally a factual matter; the dimension and
meaning of section 654 is a legal question.’ [Citation.] We apply
the substantial evidence standard of review to the trial court’s
implied finding that a defendant harbored a separate intent and
objective for each offense.’ ” (People v. Dowdell (2014)

28
227 Cal.App.4th 1388, 1414.) We may correct a failure to stay a
sentence under section 654 despite Hernandez’s failure to object
on that basis below. (People v. Scott (1994) 9 Cal.4th 331, 354 &
fn. 17.)
The trial court made no express finding that Hernandez’s
intent and objective for the attempted murder and attempted
arson were different, and there is no evidence in the record to
support an implied finding to that effect. The shooting and
burning of Miguel C. closely followed the shooting of Juan R. and
Miguel C., indicating the treatment of Miguel C. was part of the
same course of conduct. The temporal proximity, combined with
Hernandez’s comment about Miguel C. leaving with Juan R. and
Alfonso I. because he came with them, indicates that the shooting
and burning had the same murderous intent that motivated
Hernandez to shoot into the pickup. Accordingly, we agree with
Hernandez and the Attorney General that the attempted murder
and attempted arson were part of the same indivisible course of
conduct and that section 654 requires us to stay Hernandez’s
sentence for attempted arson.5

5 Hernandez argues that the attempted arson was not just
part of the same course of conduct but was the same act as the
attempted murder. Hernandez’s argument ignores the fact that
the jury may have convicted him of attempted murder based on
his or his son’s acts of shooting Miguel C. as well as the burning
of Miguel C. in the truck. Where a verdict on a charge rests on
two theories and section 654 would bar separate punishment
under only one of the theories, it is unclear whether a court
should stay the punishment on the charge or not. (People v.
Roberson (1988) 198 Cal.App.3d 860, 872 [staying punishment
because court would not rely on a guess that the bases for

29
 DISPOSITION
The judgment is modified to strike the one-year
enhancement under section 12022, subdivision (b)(1) on the
attempted murder conviction (count 3). It is further modified to
reflect that Hernandez was convicted in count four of one
violation of section 455 and is sentenced to two years in state
prison, stayed pursuant to section 654. As so modified, the
judgment is affirmed.

BROWN, J.

WE CONCUR:

STREETER, ACTING P. J.
TUCHER, J.

People v. Hernandez (A161095)

different counts were different]; People v. McCoy (2012)
208 Cal.App.4th 1333, 1338–1339 [disagreeing with Roberson].)
It is unnecessary for us to take up this issue here. Section 654
bars Hernandez’s punishment for attempted arson as part of a
single course of conduct with the attempted murder, even if the
jury’s verdict on the attempted murder was based on a shooting
theory rather than an arson theory.

30