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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

RAMON HERNANDEZ BERNAL, JR.,

Defendant and Appellant.

 H048821

 (Monterey County

 Super. Ct. No. SS161881)

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 As described in the unpublished 

opinion from defendant’s first direct appeal1: “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, 

1 We have taken judicial notice of our earlier opinion at defendant’s request. 
2

§ 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 
3

$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.
4

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. 
5

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.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Lie, J. 

H048972 - The People v. Bernal