Filed 12/14/05

CERTIFIED FOR PUBLICATION

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 

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

B180257   (Los Angeles County Super. Ct. No. BA257971)

 

 

APPEAL from a judgment of the Superior Court of Los Angeles County, Marsha N. Revel, Judge. Affirmed in part, reversed in part.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

 

Defendant, Armando Hernandez, appeals from: his December 3, 2004 guilty plea for voluntary manslaughter and his admission he used a deadly weapon (Penal Code §§ 192,  subd. (a), 12022, subd. (b)(1)[1]); the trial court's subsequent finding defendant was not guilty by reason of insanity (§ 1026); and his ensuing December 27, 2004 commitment to the Department of Mental Health for placement in a state hospital. In this opinion, we address an aspect of the relationship between the determinate sentencing law and periods of confinement imposed on defendant who has twice been found not guilty by reason of insanity. This is a case where, had there been no insanity finding, defendant would have been subject to the determinate sentence law. (§ 1170 et seq.). Defendant was twice found not guilty by reason of insanity for a single act of violence committed on a single occasion. In 2000 and later in 2004, defendant was committed to the state hospital pursuant to section 1026, subdivision (a). In late 2004, the trial court ordered the two commitments to run concurrently. As will be noted, because the two commitments arose out of a single act of violence directed at one victim, the trial court did not have the authority to impose concurrent periods of confinement in the state hospital.

Defendant beat the victim, Francisco Hernandez, over the head with a baseball bat on June 28, 2000. Mr. Hernandez was defendant's father. Defendant believed someone was trying to get into Mr. Hernandez's mind. A police officer described defendant's explanation for the attack: â€