A state appeals court rejected a bid for a shorter prison term for a Monterey County robber who argued his crime was, well, kind of goofy.
Octavio Hernandez, 20, of Salinas challenged Superior Court Judge Pamela L. Butler's decision to sentence him to the five-year "upper" term for an April 2011 robbery of a medical marijuana delivery man in Salinas.
Hernandez's bid for a shorter term hinged on two aspects of the crime. He claimed he used a fake handgun in the robbery, and the crime wasn't sophisticated because he was easily caught since the marijuana distributor had his photo identification and other personal information.
But a three-judge panel of the 6th District Court of Appeal, in a ruling issued this week, rejected Hernandez's contention that the trial court abused its discretion in finding the robbery warranted the upper prison term.
Hernandez pleaded no contest to robbery in December 2011 in a plea deal in which a firearm-use allegation was dropped.
On April 14, 2011, he had made arrangements for a medical marijuana delivery man to meet him in a Safeway parking lot in Salinas. The delivery man had about $1,000 in cash and 1½ pounds of marijuana.
As the delivery man began weighing the order, he looked up and saw a silver handgun in his face.
Hernandez told the man, "I am not playing around." Then he took the money, marijuana and other items, told the delivery man not to tell anyone and
Hernandez was subsequently identified through customer records maintained by Sweet Leaf Caregivers, a medical marijuana distributor that delivers to customers in Monterey and Santa Cruz counties.
After the plea deal, the prosecution asked for the upper term on the robbery count, while the defense sought a lower term, arguing Hernandez never meant to hurt anyone and had used a fake gun.
The defense argued the crime didn't involve careful planning or sophistication — other aggravating circumstances — and "actually was a very dumb and stupid plan."
The appeals court said Hernandez's claim he used a fake gun didn't detract from his threats to the delivery man.
As for the foolish nature of the crime, the appeals court said, "Even though defendant's plan may not have been very well thought-out with respect to concealing his identity, the trial court did not abuse its discretion in finding that the crime involved planning."
A representative of Sweet Leaf Caregivers said he was glad Hernandez is "sitting up there for five years."
"The damage it did to our driver, whether the gun was plastic or not, was real. It scared him crapless. He quit a few weeks later and had serious nervous problems," said the Sweet Leaf managing director, who gave only his first name as Paul.
Sweet Leaf quit making deliveries in Salinas because of the robbery, he said. They reported the crime to police, their standard practice, Paul said.
"When these guys rob us, they think it's marijuana and we aren't going to call police — but we do," he said.