People v. Hernandez CA4/1 ( 2022 )

Filed 9/20/22 P. v. Hernandez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080015
Plaintiff and Respondent,
v. (Super. Ct. No. FVI17003037)
JOSE DE JESUS HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Tony Raphael, Judge. Affirmed in part, reversed in part, and
remanded with directions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General for
Plaintiff and Respondent.
INTRODUCTION
Jose De Jesus Hernandez was sentenced to serve a prison term of 30
years to life, consecutive to 8 years and 8 months, upon the jury finding him
guilty of sexually abusing his stepdaughter and his two nieces, who were all
then age 14 or younger. Hernandez does not challenge the sufficiency of the
evidence supporting his convictions but he asserts two sentencing errors
require his matter be remanded for resentencing.
On the first asserted error, the Attorney General properly concedes the
trial court imposed an unauthorized sentence of 15-years-to-life for
Hernandez’s conviction on count 4 of continuous sexual abuse (Pen. Code,1
§ 288.5, subd. (a)). Section 288.5 was not yet a One Strike offense under
section 667.61 at the time Hernandez committed that offense. Accordingly,
we vacate the sentence on count 4 and remand the matter for resentencing
consistent with our opinion. Under the full resentencing rule, the trial court
is permitted to revisit all prior sentencing decisions under any new
legislation enacted while this appeal was pending. For that reason, we do not
reach the merits of Hernandez’s second asserted error that he is entitled to
remand for resentencing on count 3 for his lewd act conviction (§ 288, subd.
(a)) under the ameliorative sentencing provisions of recently-enacted Senate
Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). Additionally, clerical
errors in the sentencing minute order and abstracts of judgment shall be
corrected. In all other respects, the judgment is affirmed.
RELEVANT BACKGROUND
Hernandez began sexually abusing his stepdaughter, Jane Doe 1, when
she was eight years old until she was 12 or 13. He rubbed his penis against
1 All further undesignated statutory references are to the Penal Code.
2
her vagina, sodomized her, made her orally copulate him, and licked,
touched, and grabbed her breasts. He was charged in count 1 with
continuous sexual abuse of Jane Doe 1, in violation of section 288.5,
subdivision (a). In count 2, he was charged with committing a lewd act on
Jane Doe 1 when she was 14 years old and he was at least 10 years older
than her, in violation of section 288, subdivision (c)(1).
Hernandez sexually abused two of his nieces, Jane Doe 2 and Jane Doe
3. When Jane Doe 2 was about six or seven years old, Hernandez took her
into a room, got on top of her, covered her mouth with one hand and told her
not to scream or make noises, kissed her, touched her vagina, and rubbed his
body on hers. Another time, he sat Jane Doe 2 on his lap, spread her legs
open and rubbed her vagina. He was charged in count 3 with committing a
lewd act on Jane Doe 2, in violation of section 288, subdivision (a).
He sexually abused Jane Doe 3 from the time she was eight or nine
years old until she was 15. He repeatedly touched her buttocks and breasts,
sucked on her nipples, rubbed his penis on her body and vagina, made her
masturbate and orally copulate him, and masturbated himself in front of her.
In count 4, he was charged with continuous sexual abuse of Jane Doe 3,
another violation of section 288.5, subdivision (a).
The jury convicted Hernandez on all four counts as charged. He
committed these crimes against the three victims at various times over the
span of 23 years, from 1994 to 2017.
The trial court sentenced Hernandez to a total prison term of 8 years
and 8 months, followed by a consecutive term of 30 years to life. The court
rejected the probation department’s recommendation that he be sentenced to
12 years and 8 months with a subsequent parole period of 3 to 4 years,
finding that the recommendation did not “adequately account[ ]” for
3
Hernandez’s conduct and the harm he caused the victims. The court stated it
intended to “impose the maximum sentence allowed.” It then imposed the
upper term of 8 years on count 3 as the principal term and a consecutive term
of 8 months on count 2 (one-third of the midterm). As to counts 1 and 4, the
People had alleged Hernandez was subject to a term of 15 years to life upon
conviction of each count, under section 667.61, subdivisions (b) and (e),
because he had committed continuous sexual abuse against multiple victims.
The trial court then imposed consecutive sentences of 15 years to life on
counts 1 and 4, for a total indeterminate term of 30 years to life.
DISCUSSION
I.
The One Strike Sentence on Count 4 Must Be Vacated Because it Violates the
Constitutional Prohibitions Against Ex Post Facto Laws
Section 667.61⎯known as the One Strike Law⎯was enacted in 1994 to
provide “an alternative and harsher sentencing scheme” for specified sex
crimes committed under certain aggravated circumstances. (People v.
Mancebo (2002) 27 Cal.4th 735, 741; § 667.61, subd. (b).) Relevant here, the
One Strike Law requires a sentence of 15 years to life for a person convicted
of certain enumerated offenses that are committed against multiple victims.
(§ 667.61, subds. (b), (e)(4).) Continuous sexual abuse of a child, in violation
of section 288.5, is presently one of those enumerated offenses. (§ 667.61,
subd. (c)(9).)
But at the time Hernandez committed continuous sexual abuse of Jane
Doe 3⎯from September 1996 through September 2001⎯as charged in count
4, section 288.5 was not among the enumerated offenses that would subject a
person to the indeterminate life sentences under the One Strike Law. (See
Stats. 1998, ch. 936, § 9; former section 667.61, subd. (c)(1)−(7); People v.
4
Valenti (2016) 243 Cal.App.4th 1140, 1174 (Valenti) [“before 2006, section
288.5 was not a One Strike offense”].) It was not until 2006 that the
Legislature amended section 667.61, subdivision (c), to add continuous sexual
abuse of a child in violation of section 288.5 as a One Strike offense. (See
Stats. 2006, ch. 337, § 33; § 667.61, subd. (c)(9); Valenti, at p. 1174.)
Thus, at the time Hernandez committed count 4, he was subject only to
a determinate sentencing triad of 6, 12, or 16 years. (§ 288.5, subd. (a).)
However, the People had incorrectly alleged that the multiple victim
circumstance under section 667.61, subdivisions (b) and (e), applied to count
4, and the trial court imposed the unauthorized sentence of 15 years to life on
that count.2 This sentence, the Attorney General correctly concedes, was
prohibited by the ex post facto clauses of the California and United States
Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) “The
indeterminate life sentences now prescribed by section 667.61 greatly exceed
the determinate sentences of 6, 12, or 16 years previously available for
violations of section 288.5. Thus, the ex post facto clause[s] prohibit[ ]
sentencing defendants under the One Strike law for section 288.5 violations
committed before September 20, 2006.” (Valenti, supra, 243 Cal.App.4th at
p. 1174; see also People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178 [“The
2 At sentencing, the trial court acknowledged it “inadvertently did not
instruct on CALCRIM 3181, the multiple victim enhancement” alleged as to
counts 1 and 4, but concluded its failure to sua sponte instruct on the
elements of the One Strike circumstance under section 667.61 was harmless
since the jury’s guilty verdicts necessarily established the multiple victim
circumstance. Although Hernandez notes in his opening brief on appeal that
his trial counsel objected to sentence being imposed under the One Strike
Law “because, though pleaded, the jury had not been asked to return a true
finding on that allegation and had not been instructed on it either,” he raises
no claim of error regarding the instructions or verdict forms.
5
federal and state prohibitions against ex post facto laws apply to any statute
that punishes as a crime an act previously committed which was not a crime
when done or that inflicts greater punishment than the applicable law when
the crime was committed.”].)
Accordingly, we vacate the sentence on count 4 and remand the matter
for resentencing on count 4 without application of the One Strike Law
(§ 667.61).
II.
Because the Matter Must Be Remanded for Resentencing on Count 4, We Need
Not Reach the Merits of the Asserted Sentencing Error on Count 3
At the time Hernandez was sentenced, section 1170, former subdivision
(b), left it to the sentencing judge’s “sound discretion” to select the
appropriate term within a sentencing triad that “best serves the interests of
justice.” (§ 1170, former subd. (b), as amended by Stats. 2018, ch. 1001
(Assem. Bill No. 2942) § 1.) In sentencing Hernandez on count 3, the trial
court imposed the upper term of 8 years, having found factors in aggravation
justified the sentence. But while Hernandez’s appeal was pending, the
Legislature enacted Senate Bill 567, which made significant amendments to
the determinate sentencing law under section 1170, former subdivision (b).
(Stats. 2021, ch. 731, § 1.3.) Effective January 1, 2022, a “court may impose a
sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have been found
true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subd. (b)(2).)
6
Hernandez contends the recent amendments to section 1170,
subdivision (b), are ameliorative and apply retroactively to him under the
rule of In re Estrada (1965) 63 Cal.2d 740. He requests we vacate his
sentence on count 3 and remand for resentencing. In response, the People
contend “there is no need for this court to consider the merits of this claim
given that remand is required for resentencing on count 4” and the trial court
“may revisit all of its prior sentencing decisions under the new legislation.”
We agree with the People.
“[T]he full resentencing rule allows a [trial] court to revisit all prior
sentencing decisions when resentencing a defendant.” (People v. Valenzuela
(2019) 7 Cal.5th 415, 424−425; accord People v. Buycks (2018) 5 Cal.5th 857,
893 [“when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate’ ”].) A court
conducting a full resentencing may “exercise its sentencing discretion in light
of . . . changed circumstances.” (People v. Navarro (2007) 40 Cal.4th 668,
681.) This, of course, includes any new legislation delimiting that sentencing
discretion. (See Valenzuela, at p. 425 [“[I]n a Proposition 47 resentencing,
the trial court not only must revisit its prior sentencing decisions, it also
must decide whether the factual basis for an enhancement has been
abrogated by the redesignation of a felony conviction as a misdemeanor.”];
People v. Jones (2022) 79 Cal.App.5th 37, 45−47 [holding the need to apply
amended sections 1170, subdivision (b), and 654 to the defendant’s sentence
warranted a remand for a full resentencing].) We presume the trial court will
comply with current section 1170, subdivision (b), when making its full
resentencing decision. We therefore need not and do not reach the merits of
Hernandez’s claim of asserted Senate Bill 567 error.
7
III.
Clerical Errors in the Sentencing Minute Order and Abstracts of Judgment
Shall Be Corrected
At sentencing, the trial court imposed three separate victim restitution
orders under section 1202.4 in the amounts of $2,654.95, $375, and $225, for
a total of $3,254.95 in victim restitution. However, the sentencing minute
order and indeterminate abstract of judgment state that Hernandez is to pay
victim restitution in four specific amounts: $3,254.95, $2,654.95, $375, and
$225. Both parties agree the first enumerated amount of $3,254.95, which is
the total of the other three amounts of victim restitution when combined, is
erroneous. Accordingly, the sentencing minute order and indeterminate
abstract of judgment shall be corrected to comport with the oral
pronouncement of judgment. (See e.g., People v. Zackery (2007) 147
Cal.App.4th 380, 385−386 [“Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of
judgment, the oral pronouncement controls.”].)
Additionally, the indeterminate and determinate abstracts of judgment
incorrectly state 2010 as the year Hernandez committed all of his crimes.
Based on the charges in the information, evidence at trial, jury instructions,
and verdicts, the parties agree count 1 occurred between 2010 to 2016; count
2 occurred between 2016 to 2017, count 3 occurred between 1994 to 1995, and
count 4 occurred between 1996 to 2001. The abstracts of judgment shall be
corrected accordingly. (See e.g., People v. Mitchell (2001) 26 Cal.4th 181,
186−188 [court has inherent power to correct errors in its records to make
records reflect the true facts].)
8
DISPOSITION
The sentence imposed for count 4 is vacated. The matter is remanded
for resentencing consistent with this opinion. The judgment is affirmed in all
other respects.
Upon resentencing, the court is instructed to issue an amended
abstract of judgment to reflect Hernandez’s new sentence and to correct the
errors in the original abstract of judgment that have been identified in this
opinion. The court shall forward the amended abstract of judgment to the
California Department of Corrections and Rehabilitation.
The court is additionally directed to correct the “**Corrected** [¶]
Minute Order” dated September 20, 2021, page 2, to remove “$3,254.95” from
the “Victim Comp. Board ordered reimbursed to be collected by DOC
$3,254.95 $2,654.95 . . . $375.00 . . . $225.00 . . . .” so that the minute order
accurately reflects what occurred at the sentencing hearing.
DO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
9