People v. Bernal CA6

Filed 9/8/22 P. v. Bernal CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048821
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS161881)
v.
RAMON HERNANDEZ BERNAL, JR.,
Defendant and Appellant.
MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of
Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002)
97 Cal.App.4th 847, 853–855.)
This case returns on appeal after resentencing. As described in the unpublished
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opinion from defendant’s first direct appeal : “The District Attorney charged defendant
with residential burglary (Pen. Code, § 459); identity theft (Pen. Code, § 530.5,
subd. (a)); assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); three counts of
auto burglary (Pen. Code, § 459); tampering with a vehicle (Veh. Code, § 10852); two
counts of receiving stolen property (Pen. Code, § 496, subd. (a)); and child endangerment
(Pen. Code, § 273a, subd. (b)). The information also alleged two prior serious felonies
(Pen. Code, §§ 667, subd. (a), 1170.12, subd. (c)(2)), prior prison terms (Pen. Code,
§ 667.5, subd. (b)), and committing new offenses while released on bail (Pen. Code,
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We have taken judicial notice of our earlier opinion at defendant’s request.
§ 12022.1, subd. (b)). The case was tried to a jury and defendant was convicted of all
charges. In a bifurcated phase, the court found true all special allegations.” (People v.
Bernal (Dec. 5, 2019, H045620) [nonpub. opn.].) Defendant was originally sentenced to
an indeterminate term of 85 years to life in prison, which included 20 years for two prior
serious felony conviction enhancements (Pen. Code, § 667, subd. (a)) and one year for a
prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). In the previous appeal, a
different panel of this court found no prejudicial trial errors. The judgment was
nonetheless reversed and remanded to allow the trial court to exercise its discretion under
new legislation making discretionary the previously mandatory Penal Code section 667,
subdivision (a) prior serious felony conviction enhancements.
On remand, the trial court struck the prior serious felony enhancements, struck the
prior prison term enhancement, and resentenced defendant to an indeterminate prison
term of 64 years to life consisting of: 25 years to life for first degree burglary (Pen.
Code, §§ 459–460, 1170.12, subd (c)(2)); 25 years to life consecutive for assault with a
deadly weapon (Pen. Code, §§ 245, subd. (a)(1), 1170.12, subd (c)(2)); six years
consecutive for second degree burglary (Pen. Code, §§ 459, 1170.12, subd. (c)(1)) plus
two years consecutive for the on-bail enhancement (Pen. Code, § 12022.1, subd. (b));
16 months consecutive for identity theft (Pen. Code, §§ 530.5; 1170.1, subd. (a), 1170.12,
subd. (c)(1)) plus two years consecutive for the on-bail enhancement (Pen. Code,
§ 12022.1, subd. (b)); 16 months consecutive for second degree burglary (Pen. Code,
§§ 459, 1170.1, subd. (a), 1170.12, subd. (c)(1)); and 16 months consecutive for second
degree burglary (Pen. Code, §§ 459, 1170.1, subd. (a), 1170.12, subd. (c)(1)). The trial
court imposed concurrent terms for the misdemeanor counts. The trial court did not
modify the previously imposed fines and fees, which consist of the following: $3,427.90
in direct victim restitution; a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and
a suspended $10,000 parole revocation fine (Pen. Code, § 1202.45); a court operations
assessment of $400 (Pen. Code, § 1465.8, subd. (a)(1)); a court facilities assessment of
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$300 (Gov. Code, § 70373); and a $4 emergency medical air transportation penalty (Gov.
Code, § 76000.10). The trial court did not modify the previously stated presentence
custody credits (223 actual days plus 222 days conduct credit (Pen. Code, § 2933)).
In this appeal, counsel filed a brief stating the case and facts but raising no issues.
We notified defendant of his right to submit written argument on his own behalf, and we
received a supplemental response from defendant raising six issues. Two of defendant’s
arguments (about the trial counsel listed on the abstracts of judgment and the calculation
of presentence custody credits) overlap arguments in his appellate counsel’s supplemental
brief and will be addressed later in this opinion. Other issues are not cognizable in this
subsequent appeal because they either reassert arguments considered and rejected in the
previous appeal or challenge aspects of the judgment not modified at resentencing
(namely, the restitution fine). The remaining issues raised in defendant’s response lack
merit: Defendant argues that because the trial court struck the prior serious felony
conviction enhancements when resentencing him, it “essentially voided those specific
prior convictions” such that he could not be sentenced under the Three Strikes Law.
Defendant cites no authority for that proposition, and we conclude no law precluded the
trial court from using defendant’s prior convictions as the basis for a third strike sentence,
despite exercising its discretion not to impose additional punishment for those offenses
under Penal Code section 667, subdivision (a). Defendant also argues his indeterminate
sentence constitutes cruel and unusual punishment under the state and federal
constitutions. That argument is forfeited for failure to assert it in the trial court. (People
v. Speight (2014) 227 Cal.App.4th 1229, 1247 [“A defendant’s failure to
contemporaneously object that his sentence constitutes cruel and unusual punishment
forfeits the claim on appellate review.”].)
We invited supplemental briefing about discrepancies between the abstracts of
judgment and the trial court’s oral pronouncement of sentence. The Attorney General
and defendant’s appellate counsel identify several errors on the abstracts of judgment.
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Defendant’s appellate counsel does not explain why he did not earlier bring these
discrepancies to the court’s attention.
The abstract of judgment for defendant’s indeterminate terms correctly lists counts
one and three as the indeterminate counts, but the abstract also incorrectly refers to
counts one and two instead of counts one and three. The abstract also does not indicate
defendant was sentenced under the Three Strikes Law. And the new abstract incorrectly
lists the original sentencing date, courtroom department, and names of individuals from
the original sentencing hearing instead of the date and individuals present at resentencing.
The parties agree that the indeterminate abstract of judgment must be amended to
conform to the trial court’s oral pronouncement that defendant serve 50 years to life as a
third strike sentence for counts one and three. Items five and six must be corrected to
refer to counts one and three, and the box for item eight must be checked to indicate
defendant received a third strike sentence. Defendant’s appellate counsel correctly notes
that his presentence custody credits must be updated to include the time he spent in
prison between the original March 2018 sentence and the resentencing hearing in 2021.
(Citing People v. Buckhalter (2001) 26 Cal.4th 20, 37 [“the trial court, having modified
defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit
him with all actual days he had spent in custody, whether in jail or prison, up to that
time.”].) As 1,078 days elapsed between the March 9, 2018 initial sentencing and the
February 19, 2021 resentencing, the indeterminate abstract of judgment must be updated
to reflect 1,523 days of presentence custody credit, based on 1,301 actual days and 222
days’ conduct credit (Pen. Code, § 2933). The indeterminate abstract of judgment must
be dated February 19, 2021, and must include the following information: Department 4,
Judge Andrew G. Liu, courtroom clerk Elena Soto, court reporter Lorlein Carter, counsel
for the People Kelsey Hollander, and counsel for defendant Donald Landis.
The abstract of judgment for defendant’s determinate terms correctly lists the total
determinate sentence as 14 years, but incorrectly states the terms imposed for each count.
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The parties agree that the determinate abstract of judgment must be amended to conform
to the trial court’s oral pronouncement of judgment, summarized earlier in this opinion.
The box in item four must be checked to indicate defendant was sentenced “per
PC 667(b)-(i) or PC 1170.12 (strike prior),” and the box in item four (presentence
custody credit exceeding time imposed) must be unchecked. Box seven must be checked
(cross-referencing the separate indeterminate term). Box 15 must be checked (requiring
the probation department to prepare a post-sentence report). The determinate abstract of
judgment must be dated February 19, 2021, and must include the following information:
Department 4, Judge Andrew G. Liu, courtroom clerk Elena Soto, court reporter Lorlein
Carter, counsel for the People Kelsey Hollander, and counsel for defendant Donald
Landis.
DISPOSITION
The judgment is modified to accurately reflect the trial court’s oral pronouncement
that defendant serve 64 years to life in prison. The clerk of the superior court is ordered
to prepare new abstracts of judgment to correct the errors identified in this opinion. As
so modified, the judgment is affirmed.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H048972 - The People v. Bernal