THE PEOPLE v. MARTIN HERNANDEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MARTIN HERNANDEZ, Defendant and Appellant.

B212219

Decided: June 23, 2010

Jonathan B. Steiner and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Martin Hernandez (Hernandez) appeals his convictions for second degree robbery (Pen.Code,1 § 211) and criminal street gang activity (§ 186.26, subd. (c)), with a true finding that he committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)).   Hernandez raises three arguments on appeal.   First, he asserts that the evidence was insufficient to support the jury's true finding on the gang enhancement allegation.   Second, he contends that the trial court violated his federal and state constitutional rights in failing to sua sponte issue a unanimity instruction to the jury on the robbery charge.   Third, he claims that the trial court erred in sentencing Hernandez for violating his probation in a prior criminal case by erroneously assuming that a consecutive sentence was mandatory.   We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. The Charges

II. Evidence at Trial

A. The Alleged Crimes

On October 30, 2007, Pedro Cedeno visited the Industry station of the Los Angeles County Sheriff's Department to report a crime.   Deputy Sheriff William Strnad and his trainee were assigned to take Cedeno's report.   According to Deputy Strnad, Cedeno stated that on October 28, 2007, a person whom he knew only as “Shorty” stole his dog and necklace.   Shorty first approached Cedeno while he was on a street corner with his six-month-old pit bull and asked Cedeno “where he was from.”   Cedeno replied that he was from “nowhere.”   Shorty identified himself as a member of the Puente Hurley Street gang.   Shorty then punched Cedeno in his face, snatched a silver necklace from his neck, and forcibly took Cedeno's dog by its leash.   Cedeno told Deputy Strnad that he had delayed in filing a report because he feared retaliation, but he was now willing to come forward and testify about the crime.   Cedeno was cooperative throughout the interview and insisted he was telling the truth.

Deputy Sheriff Steven Kays, a gang enforcement investigator for the Industry sheriff's station, was assigned the case.   Deputy Kays was aware that the street corner where Cedeno was robbed was in an area claimed by the Puente Hurley Street gang.   Based on his prior contacts with the gang and Hernandez, Deputy Kays believed Hernandez was the only member of the Puente Hurly Street gang who went by the moniker “Shorty.”   Deputy Kays accordingly assembled a photographic “six-pack” lineup that included a photograph of Hernandez.   He and his partner then visited Cedeno at his home approximately one week after the robbery to have him review the lineup.

According to the testimony of Deputy Kays, Cedeno was cooperative during their interview and recounted the details of the crime before reviewing the lineup.   Cedeno reported that he was walking home from a basketball game with two of his friends, Roger and Daniel, when he was approached by Shorty from the Puente Hurley Street gang.   Shorty was agitated and appeared to have been involved in an altercation.   Shorty asked Cedeno where he was from, and Cedeno answered that he was not in a gang.   Shorty then punched Cedeno in his face with a closed fist and forcibly took Cedeno's necklace and dog.   When Cedeno did not run away immediately after the robbery, Shorty indicated that he was impressed by Cedeno's willingness to stand his ground.   Shorty told Cedeno that if he wanted to get his dog back, he should return in a few weeks to discuss joining the gang.   Shorty walked away with the dog and the necklace in the direction of his nearby home.   Cedeno also recounted that a few days after the robbery, a mutual friend of Cedeno and Shorty was able to retrieve the dog from Shorty's parents and return it to Cedeno.   After reviewing the photographic lineup, Cedeno identified Hernandez as Shorty, the person who had robbed him.

On March 3, 2008, a shooting occurred close to Cedeno's home.   One of Cedeno's friends from the basketball game, Roger Valencia, was shot while standing on the front sidewalk.   Cedeno's home and two cars belonging to other occupants of the home were also hit by bullets.   When Deputy Kays later served Cedeno with a subpoena to appear at the April 2008 preliminary hearing, Cedeno voiced concern about the shooting and his safety.   Deputy Kays advised Cedeno to consider staying elsewhere and explained that he might be excused from the preliminary hearing if Deputy Kays was able to testify as to Cedeno's hearsay statements.   Cedeno was not called to testify at the preliminary hearing.

On July 3, 2008, Ming Feng, an investigator for the Los Angeles County District Attorney's office, personally served Cedeno with a subpoena to appear at trial.   Cedeno told Feng that he did not intend to come to court because he feared for his and his family's safety.   Feng advised Cedeno to discuss the possibility of witness relocation with the prosecutor.   Cedeno expressed concern, however, that even if he was relocated, his family would still be at risk.   On August 29, 2008, Cedeno was detained for failing to appear in court and was ordered to remain in custody until trial.

On September 3, 2008, Cedeno was called as a witness at trial.   He testified that, as of October 2007, he was living in the city of La Puente.   On the evening of October 28, 2007, Cedeno was walking home from a basketball game with his pit bull puppy and two acquaintances that he had met playing basketball.   After his acquaintances left, Cedeno was approached by Hernandez.   Hernandez was agitated, but not angry during his interaction with Cedeno, and indicated he had just been “jumped.”   According to Cedeno, he and Hernandez discussed the sale of his dog.   Hernandez told Cedeno that he had heard Cedeno was trying to sell the dog, and Cedeno confirmed he was.   They agreed that Cedeno would give the dog to Hernandez and Hernandez would pay Cedeno in one week or return the dog if he could not pay.   The two men shook hands and Hernandez departed with the dog.   Cedeno asked a mutual friend to retrieve the dog from Hernandez if he failed to pay, and the friend returned the dog to Cedeno one week later.   Cedeno denied that Hernandez ever took his necklace during their encounter and testified that he eventually found the necklace in his shoe.

At trial, Cedeno admitted that he visited the sheriff's department a few days after the incident with Hernandez, but stated that he did so solely at the insistence of a female friend.   Cedeno denied reporting to the sheriff's department that he had been robbed by a person named Shorty from the Puente Hurley Street gang, or that Shorty had attempted to coerce Cedeno into joining the gang.   Cedeno also denied telling Deputy Kays during the investigation that any crimes had been committed against him.   Cedeno admitted that he positively identified Hernandez in a photographic lineup shown to him on November 5, 2007, but stated that he was not certain his identification was accurate at the time he made it.   Cedeno also testified that when he was served with a subpoena to appear at trial, he told the process server that he wanted “nothing to do with this” and “just to leave it as it is.”   During his direct examination, Cedeno explained that all he had wanted was get his dog back and given that he was able to do so, he did not know why he had to appear at trial.   Cedeno denied that anyone had threatened to harm him or his family if he testified against Hernandez.

B. The Expert Testimony on Criminal Street Gangs

Deputy Kays also testified as a gang expert on behalf of the prosecution.   He had worked as a deputy sheriff for the S.A.F.E. Streets Gang Enforcement unit for over 15 years and spent most of that time with the Industry sheriff's station.   According to Deputy Kays, the Puente gang was the largest criminal street gang within the Industry station's jurisdiction.   As of October 2007, the gang had approximately 750 members and had grown to between 900 and 1,000 members by the time of Hernandez' trial.   The Puente gang was comprised of more than 20 cliques or subsets, including Hurley Street, Happy Homes, and East Side, which often were named after streets within the gang's claimed territory.   Deputy Kays had seen Puente gang members use the symbols “Bridgetown” or “P-13” to signify the gang, and Hurley Street members use the symbols “Hurley St.” or “HST” to identify their specific clique.   Deputy Kays knew Hernandez to be a self-admitted member of the Puente Hurley Street clique based on his personal contacts with Hernandez and prior arrests of him.   Hernandez was known by the moniker “Shorty” and had the tattoo “Bridgetown” in block letters across his back.

Based on his experience as a gang enforcement investigator, Deputy Kays was aware that the primary activities of the Puente gang were the commission of various criminal offenses, including vandalism, drug possession and sales, weapons possession, robbery, burglary, carjacking, attempted murder, and murder.   In the past, Deputy Kays had testified in the criminal trial of Juan Tovar, a member of the Happy Homes clique of the Puente gang who was convicted of murder.   Deputy Kays also had investigated a criminal case involving Mario Moreno, a member of the East Side clique of the Puente gang who was convicted of carjacking and robbery.

Deputy Kays testified that a classic gang confrontation involved a gang member confronting an individual, asking “where are you from,” and then robbing or assaulting the victim regardless of the response.   Deputy Kays indicated that a gang member who asked a person “where are you from” would interpret an answer of “nowhere” as a provocative response because it would put the onus on the gang member to make the next move.   Based on a hypothetical reflecting the facts of the instant case, Deputy Kays opined that the robbery and assault were consistent with criminal street gang activity and would have been committed for the benefit of the gang.   Deputy Kays reasoned that the conduct benefited the gang because the victim likely would tell others in the community that “Shorty from Puente beat me up and took my stuff,” which would give both the gang and the individual gang member notoriety within the neighborhood.   It also was probable that the gang member would recount his crimes to his associates or show them the stolen property, which would elevate and enhance his reputation within the gang.

Deputy Kays further opined that when Hernandez told Cedeno that he had just been “jumped,” he likely was referring to an attack by a rival gang, and that after such an attack, Hernandez would have been looking for an opportunity to restore his status within the gang.   It was also Deputy Kays's opinion that when Hernandez told Cedeno that he was from the Puente Hurley Street gang, he was “promoting his status.   He's letting everyone know this is who I am.   This is what I am going to do to you and I want you to take it back to the neighborhood and tell the world or their world what he's all about and what he's capable of doing.”   Deputy Kays testified that openly committing a robbery on a residential street in the gang's territory benefitted the gang because it instilled fear and intimidation in the surrounding community.   According to Deputy Kays, gang members want community members to “know what's occurring.   They want everybody to know that they're a gangster and that's what gangsters do.   And if you get in my way, I'll do it to you.”

III. Verdict and Sentencing

At the conclusion of the trial in Case No. KA082707, the jury found Hernandez guilty of one count of second degree robbery and one count of criminal street gang activity.   The jury also found true the gang enhancement allegation on the robbery count.   The trial court sentenced Hernandez to a three-year term on the robbery conviction, a consecutive 10-year term on the gang enhancement, and a concurrent three-year term on the criminal street gang activity conviction.   The court also sentenced Hernandez to a consecutive term of eight months for the violation of his probation in Case No. KA077281.   On November 6, 2008, Hernandez filed a timely notice of appeal.

DISCUSSION

I. Sufficiency of the Evidence on the Gang Enhancement

Hernandez first challenges the sufficiency of the evidence supporting the jury's true finding on the gang enhancement allegation under section 186.22, subdivision (b)(1).   The California Street Terrorism Enforcement and Prevention Act was enacted by the Legislature with the express purpose “to seek the eradication of criminal activity by street gangs.” (§ 186.21.) One component of the statute is a sentence enhancement provision for felonies committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)   A “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [§ 186.22, subd. (e) ], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)

In assessing the sufficiency of the evidence in a criminal case, “ ‘we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’  [Citation.]”  (People v. Steele (2002) 27 Cal.4th 1230, 1249.)   We must presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence.  (People v. Kraft (2000) 23 Cal.4th 978, 1053.)   We may reverse for a lack of sufficient evidence only if “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’  [Citation.]”  (People v. Bolin (1998) 18 Cal.4th 297, 331.)   The same standard of review applies to a claim of insufficient evidence to support a gang enhancement allegation.  (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

Hernandez contends that the evidence was insufficient to show he committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang.   He specifically claims that the testimony of Deputy Kays merely supported a finding that the robbery was committed to benefit Hernandez personally by restoring his reputation within the gang following an altercation with rival gang members.   We disagree.   The prosecution presented expert opinion evidence that the robbery benefitted both the Puente gang as a whole and Hernandez as an individual member of that gang.   Deputy Kays testified that publicly committing a robbery in an area claimed by the Puente gang would benefit the gang because it would instill fear and intimidation in the residents of the La Puente community.   The robbery also would benefit Hernandez as a gang member because it would elevate and enhance his reputation within the gang.   However, any personal benefit that Hernandez may have reaped from the robbery did not negate the broader benefit to his gang.   Indeed, Deputy Kays' testimony reflected that a gang's reputation is tied to the reputation of its individual members, and therefore, a criminal act that enhances a member's status within the gang also enhances the gang's status within the surrounding community.

Hernandez cites to this Court's decision in People v. Margarejo (2008) 162 Cal.App.4th 102 (Margarejo ) to support his claim that a gang enhancement is only proper if the defendant obtained no personal benefit from the underlying offense.  Margarejo did not so hold.   In that case, the defendant led police on a high speed car chase during which he continually flashed gang signs to the pursuing officers and passing pedestrians.  (Id. at pp. 105-106.)   We concluded that there was sufficient evidence to support the finding that the defendant committed his flight for the benefit of his gang because the “logical purpose” for the defendant's defiant behavior during the chase was “to proclaim the gang's dominance in the teeth of a determined police effort to enforce the law.”  (Id. at p. 110.)   We did not suggest, however, that the only crime which benefits a gang for purposes of section 186.22, subdivision (b)(1) is one in which the defendant derives no corresponding benefit for himself.   Moreover, there is nothing in the statute which mandates that the underlying crime be committed exclusively for the benefit of a gang.   Otherwise, a jury could never find true a gang enhancement allegation in any case where the defendant obtained even a slight personal benefit.

The evidence in this case reflected that, during the commission of the robbery, Hernandez identified himself as a member of the Puente gang, asked the victim for his gang affiliation, and used physical violence to coerce the victim into joining his gang.   There was also testimony from Deputy Kays that Hernandez's actions in brazenly identifying himself to the victim as “Shorty” from the Puente Hurley Street gang would give both the gang and Hernandez notoriety within the surrounding neighborhood.   Under these circumstances, the jury reasonably could find that Hernandez committed the robbery for the benefit of a criminal street gang.

Hernandez also argues that there was insufficient evidence to establish that he committed the robbery with the specific intent to promote, further, or assist in criminal conduct by gang members.   Relying on Ninth Circuit authority, Hernandez asserts that Deputy Kays' testimony as to how the robbery benefitted the gang was not sufficient to show that Hernandez acted with the specific intent to facilitate other gang crimes.   In the federal cases cited by Hernandez-Briceno v. Scribner (9th Cir.2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir.2005) 395 F.3d 1099-the Ninth Circuit held that the specific intent requirement of section 186.22, subdivision (b)(1) was not satisfied unless there was some evidence, “aside from the gang expert's generic testimony, ‘that would support an inference that [the defendant] robbed [the victim] with the specific intent to facilitate other criminal conduct by the [gang].’ ”  (Briceno v. Scribner, supra, at p. 1079, quoting Garcia v. Carey, supra, at p. 1103.)   According to the Ninth Circuit, the gang enhancement statute requires, among other things, evidence describing “ ‘what criminal activity of the gang was ․ intended to be furthered’ ” by the underlying crime.  (Briceno v. Scribner, supra, at p. 1079, quoting Garcia v. Carey, supra, at p. 1103.)

However, numerous California appellate courts have rejected the Ninth Circuit's reasoning.  (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 354;  People v. Romero (2006) 140 Cal.App.4th 15, 19;  People v. Hill (2006) 142 Cal.App.4th 770, 774.)   These California courts have recognized that “[b]y its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.  [Citation.]”  (People v. Romero, supra, at p. 19.)  “There is no statutory requirement that this ‘criminal conduct by gang members' be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.”  (People v. Vazquez, supra, at p. 354;  see also People v. Hill, supra, at p. 774 [“There is no requirement in section 186.22, subdivision (b), that the defendant's intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits.”].) Additionally, while an expert witness may be prohibited from testifying about a defendant's subjective knowledge or intent, the expert generally is allowed to provide opinion testimony on the basis of facts presented in hypothetical questions that ask the expert to assume their truth.  (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947;  People v. Gardeley (1996) 14 Cal.4th 605, 618.)

Here, the record reflects that the prosecutor asked Deputy Kays a series of fact-based hypothetical questions that were designed to elicit his expert opinion as to whether Hernandez committed the crime for the benefit of the Puente gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members.   In response to the prosecutor's inquiry, Deputy Kays testified that the robbery was consistent with criminal street gang activity and would have been committed for the benefit of Hernandez' gang.   As discussed, it was Deputy Kays's opinion that the crime benefitted the gang by intimidating and instilling fear in law-abiding members of the community.   Deputy Kays reasoned that “it's all about fear and intimidation.   They want the citizens-they want to see the good, hard-working families trying to live right, they want the people like that to witness it․  They want everybody to know that they're a gangster and that's what gangsters do.   And if you get in my way, I'll do it to you.”

Although Detective Kays' testimony was directly responsive to the question of how a street robbery benefits a gang, it was also sufficient to support the inference that Hernandez committed the robbery in this case with the specific intent to promote, further, or assist in criminal conduct by gang members.   The jury reasonably could infer from the testimony that Hernandez intended for the robbery to instill fear and intimidation within the community, thus facilitating future crimes to be committed by Hernandez and his fellow gang members.  (See People v. Gardeley, supra, 14 Cal.4th at p. 619 [based on expert testimony that a gang relies on violent assaults to frighten residents of an area where the gang sells drugs, “the jury could reasonably conclude that the attack on [the victim] by ․ defendants was committed ‘for the benefit of, at the direction of, or in association with’ that gang, and ‘with the specific intent to promote, further, or assist in ․ criminal conduct by gang members' ”];  People v. Vazquez, supra, 178 Cal.App.4th at p. 354 [expert testimony that violent crimes increase respect for the gang and intimidate neighborhood residents was sufficient to support inference that defendant “specifically intended for the murder to promote [his gang's] criminal activities”].)   The jury's true finding on the gang enhancement allegation was supported by substantial evidence.

II. Failure to Give a Unanimity Instruction

Hernandez next contends that the trial court had a sua sponte duty to instruct the jury pursuant to CALJIC No. 17.01 that, before finding him guilty of the robbery charge, the jurors had to agree unanimously on the act or acts which formed the basis of the conviction.3  Hernandez claims that a unanimity instruction was necessary because the jurors reasonably could have disagreed as to which criminal act-the taking of the dog or the taking of the necklace-constituted the robbery.   This argument is without merit.

A jury verdict in a criminal case must be unanimous, and the jury must agree unanimously that the defendant is guilty of a specific crime.  (People v. Russo (2001) 25 Cal.4th 1124, 1132.)  “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.  [Citations.]”  (Ibid.) This requirement of jury unanimity “ ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’  [Citation.]”  (Ibid.) It typically applies to acts that could have been charged as separate offenses.  (People v. Maury (2003) 30 Cal.4th 342, 423.)   However, “[a] unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.  [Citation.]”  (Ibid.) “ ‘ “[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.” ’  [Citations.]”  (People v. Champion (1995) 9 Cal.4th 879, 932.)

It is also well-established that a unanimity instruction is not required where the case falls within an exception for acts constituting a continuous course of conduct.  (People v. Stankewitz (1990) 51 Cal.3d 72, 100;  People v. Crandell (1988) 46 Cal.3d 833, 875;  People v. Diedrich (1982) 31 Cal.3d 263, 282.)  “The continuous course of conduct exception arises in two contexts.  [Citations.]  ‘The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense.   [Citation.]  The second is when ․ the statute contemplates a continuous course of conduct of a series of acts over a period of time.  [Citation.]’  [Citation.]”  (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.)   The exception applies “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.”  (People v. Stankewitz, supra, at p. 100.)

Courts repeatedly have held that a robbery involving multiple items of property does not give rise to discrete criminal acts for which a unanimity instruction is required.   For instance, in People v. Stankewitz, supra, 51 Cal.3d at p. 100, the defendant and two accomplices commandeered the victim's car.   Once inside the car, defendant threatened the victim with a gun, one accomplice demanded the victim's money, and the victim gave both her money and watch to the two accomplices.  (Ibid.) Our Supreme Court held that the trial court did not commit prejudicial error in failing to give a unanimity instruction because “the inference [was] inescapable that both takings were accomplished by means of the implicit threat of force or fear presented by the defendant's gun.”  (Ibid.) The Court concluded that “[w]hatever slight differences inhered in the defenses offered by [the] defendant to the takings of the victim's car, watch and money were thus without significance.”   (Ibid.)

Similarly, in People v. Turner (1983) 145 Cal.App.3d 658, disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 415 and People v. Majors (1998) 18 Cal.4th 385, 411, the defendant commandeered the victim's car and then took her jewelry and cash before fleeing with the vehicle.   The Court of Appeal concluded that, although the defendant's “driving off with the car occurred after the taking of the other items,” a unanimity instruction was not appropriate because “it was part of one course of continuous conduct all occurring within a brief period of time against a single victim.”  (Turner, supra, at p. 681.)   As the court explained, “the multiple acts were just alternate ways of proving a necessary element of the same offense.”  (Ibid;  see also People v. Harris (1994) 9 Cal.4th 407, 431, fn. 14 [four successive takings of victim's car and other items over a two-day period “reflected a ‘continuing course of conduct,’ the central objective of which was to rob [the victim] of all of his property wherever it might be located”];  People v. Haynes (1998) 61 Cal.App.4th 1282, 1296 [unanimity instruction was not required where two takings of victim's money only minutes apart “were successive, compounding, [and] part of a single objective of getting all the victim's cash”].)

The evidence in this case demonstrated that, during the course of a single encounter with a single victim, Hernandez punched Cedeno in his face, snatched Cedeno's necklace from his neck, and took Cedeno's dog by its leash.   The takings of the necklace and the dog occurred within seconds of one another and were so closely connected in time and space as to form one transaction.   The takings were also committed with the same criminal intent-to deprive Cedeno of his personal property for the benefit of Hernandez' gang.   Because the evidence reflected that Hernandez stole multiple items from the same victim at essentially the same time, his actions constituted a continuous course of conduct for which a unanimity instruction was not required.

Hernandez reasons that the trial court had a sua sponte obligation to instruct the jury with CALJIC No. 17.01 because Hernandez offered two distinct defenses to the robbery charge at trial.   As to the taking of the necklace, Hernandez asserts that his defense was that he never took the necklace and Cedeno later discovered it in his shoe.   As to the taking of the dog, Hernandez argues that his defense was that he did not intend to permanently deprive Cedeno of the dog and planned to return the dog to Cedeno if he was unable to pay.   Contrary to Hernandez' claim, however, his defense to each of the takings was essentially the same, i.e., that he lacked the requisite intent to steal because his encounter with Cedeno was solely about a mutually agreeable sale.

We also reject Hernandez' assertion that the jury reasonably could have found him guilty of the robbery based upon one of the takings, but not the other.   At trial, the jury heard two conflicting versions of Cedeno's interaction with Hernandez.   In the version that Cedeno told the police shortly after the incident, Hernandez stole both the necklace and the dog from Cedeno with no intent to return either item unless Cedeno joined Hernandez' gang.   In the version that Cedeno told at trial, Hernandez did not take any property belonging to Cedeno against his will and their entire encounter was simply a business transaction over the sale of Cedeno's dog.   Accordingly, the jury had to decide which of Cedeno's accounts to credit at trial.   The jury either had to believe Hernandez was guilty of the robbery of both the necklace and the dog because he forcibly took those items from Cedeno, or that Hernandez was not guilty of robbery at all because he was engaging in a consensual financial transaction.   There was no reasonable basis for the jury to find that Hernandez robbed Cedeno of one item but not the other.   Based on this record, a unanimity instruction was not required.

III. Consecutive Sentence on the Probation Violation

Finally, Hernandez argues that the trial court erred in imposing a consecutive sentence on his probation violation in Case No. KA077281 because the court was unaware of its discretionary authority to impose a concurrent sentence.   He relies on the following statement from the trial court in sentencing Hernandez on the probation violation case:  “Since I imposed state prison on the last case, and I intend to impose state prison on this one, 1170 requires that I impose one-third of the mid-term, or eight months, in a consecutive sentence.   So that eight months will be added to the sentence on the new charge.”   Based on this statement, Hernandez contends that the trial court erroneously assumed a consecutive sentence was mandatory, and therefore, the case must be remanded for resentencing so that the court can properly exercise its discretion.   We conclude that remand is not required in this case.

It is true that where the record discloses that the trial court was unaware of the scope of its discretion in sentencing, the case generally must be remanded to permit the court to impose a sentence with the proper understanding of its discretion.  (People v. Fuhrman (1997) 16 Cal.4th 930, 944;  People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) However, remand is not required if the record demonstrates that the trial court was aware of its discretionary authority at the sentencing hearing.  (People v. Belmontes, supra, at p. 348, fn. 8;  People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)   Remand is also unnecessary if the record is silent as to whether the court misunderstood the scope of its discretion.  (People v. Brown, supra, at p. 1229;  People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)   On a silent record, the trial court is presumed to have been aware of and have followed the applicable law, including its statutory discretion in sentencing.  (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527;  People v. Brown, supra, at p.1229;  People v. White Eagle, supra, at p. 1523.)   In other words, “we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its] discretion.”  (People v. Gutierrez, supra, at p. 527.)

Here, the record fails to demonstrate on its face the trial court was unaware of its discretionary authority to impose a concurrent sentence.   The court's initial statement that “I intend to impose state prison on this one” suggests that the court was first selecting a consecutive sentence in its discretion and then considering what term of imprisonment was statutorily required.   While not a model of clarity, the court's subsequent reference to the mandatory provisions of section 1170 appears to have been a reference to section 1170.1's requirement that when a consecutive term of imprisonment is imposed, the “subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed ․“ (§ 1170.1, subd. (a).)  From this record, we cannot conclude that the trial court clearly misunderstood the scope of its sentencing discretion, and accordingly, we cannot presume error.

As the Attorney General concedes, the trial court did err in a separate instance by failing to state on the record its reasons for selecting a consecutive sentence. (§ 1170, subd. (c);  Cal. Rules of Court, rule 4.406, subd. (b)(5).)   However, our Supreme Court has held that the forfeiture doctrine applies “to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices,” including its failure to state the reasons for those choices on the record.  (People v. Scott (1994) 9 Cal.4th 331, 353.)   Consequently, “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.”  (Id. at p. 356.)   Because Hernandez did not raise any objection to the trial court's failure to state its reasons for imposing a consecutive sentence, he has forfeited the issue on appeal.

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Unless otherwise stated, all further statutory references are to the Penal Code..  FN1. Unless otherwise stated, all further statutory references are to the Penal Code.

FN2. At the time the information was filed in Case No. KA082707, Hernandez was on probation in Case No. KA077281 following his guilty plea to possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)).  On December 3, 2007, the trial court found Hernandez to be in violation of his probation in Case No. KA077281.   The sentencing on the probation violation was trailed to be heard in conjunction with Case No. KA082707..  FN2. At the time the information was filed in Case No. KA082707, Hernandez was on probation in Case No. KA077281 following his guilty plea to possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)).  On December 3, 2007, the trial court found Hernandez to be in violation of his probation in Case No. KA077281.   The sentencing on the probation violation was trailed to be heard in conjunction with Case No. KA082707.

FN3. CALJIC No. 17.01 specifically states as follows:  “The defendant is accused of having committed the crime of [in Count].   The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count] may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions].   However, in order to return a verdict of guilty [to Count], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions].   It is not necessary that the particular [act][or] [omission] agreed upon be stated in your verdict.”.  FN3. CALJIC No. 17.01 specifically states as follows:  “The defendant is accused of having committed the crime of [in Count].   The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count] may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions].   However, in order to return a verdict of guilty [to Count], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions].   It is not necessary that the particular [act][or] [omission] agreed upon be stated in your verdict.”

PERLUSS, P.J. JACKSON, J.