Filed 12/7/23 P. v. Hernandez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE DE JESUS HERNANDEZ,

Defendant and Appellant.

 D081619

 (Super. Ct. No. FVI17003037)

APPEAL from a judgment of the Superior Court of San Bernardino 

County, Tony Raphael, Judge. Affirmed with directions to correct the 

sentencing minute orders and abstracts of judgment. 

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, and 

Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for 

Plaintiff and Respondent.
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INTRODUCTION

Jose De Jesus Hernandez was convicted of sexually abusing his 

stepdaughter and two nieces over a period of years and was initially 

sentenced to serve a prison term of 30 years to life, consecutive to 8 years and 

8 months. In his first appeal, Hernandez successfully argued, and the People 

conceded, that the trial court imposed an unauthorized sentence of 15-yearsto-life for his conviction on count 4 (continuous sexual abuse of a child in 

violation of Penal Code1 section 288.5, subd. (a)) because Hernandez 

committed that offense from September 1996 through September 2001, before 

the Legislature amended section 667.61, subdivision (c) to add section 288.5 

as a One Strike offense. The matter was remanded for resentencing on 

count 4 without application of the One Strike Law (§ 667.61) and for 

correction of clerical errors in the sentencing minute order and abstracts of 

judgment. (See People v. Hernandez (Sept. 20, 2022, D080015) [nonpub. opn.]

(Hernandez).) 

In this second appeal, Hernandez claims the sentence on count 4 (midterm of 12 years, consecutive) must again be reversed and also seeks the 

correction of trial court records as directed in Hernandez as well as

subsequent court records. After initially claiming the resentencing violated 

ex post facto prohibitions based on an incomplete and inaccurate legislative 

history of section 667.6, Hernandez now concedes the trial court had 

discretion and the authority to impose the sentence on count 4 pursuant to 

the applicable version of section 667.6, but he raises two additional 

arguments in his supplemental letter brief: (1) the record does not clearly 

show the trial court understood the applicable version of section 667.6 did not 

mandate a full term consecutive sentence, and (2) the trial court failed to 

1 All further statutory references are to the Penal Code.
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provide a statement of reasons for its election to sentence Hernandez under 

section 667.6 in lieu of section 1170.1.

We reject Hernandez’s challenges to the sentence and affirm the trial 

court’s judgment with directions for the correction of the trial court record.

RELEVANT BACKGROUND

After a jury convicted Hernandez on all four counts of child sexual 

abuse in 2021, the trial court sentenced him to the upper term of 8 years on 

count 3, a consecutive term of 8 months on count 2 (one-third of the midterm), 

and consecutive sentences of 15 years to life on counts 1 and 4, for a total 

indeterminate term of 30 years to life. Following remand in Hernandez, the 

trial court scheduled a resentencing hearing for February 1, 2023, where the 

trial court imposed an indeterminate prison term of 15 years to life and a 

determinate term of 18 years and 8 months to be followed by a lifetime period 

of parole with a total credit of 2,010 days. On count 4, Hernandez was 

sentenced to the midterm of 12 years, consecutive, for his continuous sexual 

abuse of Jane Doe 3 in violation of section 288.5, subdivision (a) from 

September 1996 through September 2001. Hernandez timely appealed.

In this second appeal, Hernandez initially argued that the sentence on 

count 4 violated ex post facto prohibitions based on the erroneous assumption 

that section 288.5 had not been added to section 667.6 as an offense for which 

a full-term consecutive sentence was permitted until 2006. The People 

conceded error despite this faulty premise, and both parties agreed the 

matter should be remanded for the correction of the February 1, 2023 

resentencing minute order and the February 6, 2023 abstracts of judgment in 

addition to corrections to previous court records as directed in Hernandez.

On October 23, 2023, we issued an order requesting supplemental 

briefing to address Assembly Bill 2212 (Stats. 1989, ch. 1402, §§ 4, 7)
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whereby the Legislature enacted section 288.5 (continuous sexual abuse) and 

amended Penal Code section 667.6, subdivision (c), to include Penal Code 

section 288.5 as an offense that could trigger an increased prison term. Both 

parties acknowledged in their respective supplemental letter briefs that the 

Legislature had amended section 667.6 to include continuous sexual abuse of 

a child in violation of section 288.5 prior to the commission of the count 4 

offense, and that the trial court had discretion to impose a full-term 

consecutive sentence. However, Hernandez maintains reversal is still 

warranted. 

As discussed below, we conclude (1) the trial court properly exercised 

its discretion to impose a lawful sentence, and (2) Hernandez forfeited his 

claim that the trial court failed to provide a statement of reasons for 

sentencing him pursuant to section 667.6 in lieu of section 1170.1. We 

therefore affirm the judgment and direct the trial court to correct the 

relevant trial court records. 

DISCUSSION

A. The Applicable Version of Penal Code Section 667.6.

Section 667.6 was enacted by the Legislature in 1979 to provide longer 

prison terms for certain sex offenders than otherwise permitted under 

section 1170.1. (Stats. 1979, ch. 944, § 10, p. 3258.) In 1989, the Legislature 

enacted section 288.5 (continuous sexual abuse) and amended Penal Code 

section 667.6, subdivision (c), to include Penal Code section 288.5 as an 

offense that could trigger an increased prison term. (Stats. 1989, ch. 1402, 

§ 7.) 

Subdivision (c) of the applicable version of section 667.6, which was in 

effect from 1996 through 2001 when Hernandez committed the count 4 

offense, states in part: “In lieu of the term provided in Section 1170.1, a full, 
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separate, and consecutive term may be imposed for each violation of 

. . . Section 288.5 . . . . If the term is imposed consecutively pursuant to this 

subdivision, it shall be served consecutively to any other term of 

imprisonment, and shall commence from the time the person would otherwise 

have been released from imprisonment. The term shall not be included in 

any determination pursuant to Section 1170.1. Any other term imposed 

subsequent to that term shall not be merged therein but shall commence at 

the time the person otherwise would have been released from prison.”

In 2006, the Legislature made substantive and organizational 

amendments to section 667.6. (Stats. 2006, ch. 337, § 32.) In the current 

version of the statute, “[c]ontinuous sexual abuse of a child, in violation of 

Section 288.5” is listed in subdivision (e)(6) as one of the offenses for which 

the trial court “shall” impose “[a] full, separate, and consecutive term” for 

each violation of section 288.5. (§ 667.6, subd. (e)(6).) 

B. The Trial Court Was Fully Aware of the Scope of its Discretion.

Although it is now undisputed that the trial court had discretion to 

impose a full, separate, and consecutive term for count 4 pursuant to 

subdivision (c) of the operative version of section 667.6, Hernandez argues in 

his supplemental letter brief that the sentence is still subject to reversal

because it is unclear from the record whether the trial court mistakenly 

relied on the current version of section 667.6, which mandates a full term 

consecutive sentence for violations of section 288.5, and posits the trial court 

did not realize it had discretion to not impose a full term consecutive 

sentence. 

“The general rule is that a trial court is presumed to have been aware 

of and followed the applicable law.” (People v. Mosley (1997) 53 Cal.App.4th

489, 496.) Yet, when a sentencing court was unaware of the full scope of its 
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discretionary powers at the time the defendant was sentenced, “the 

appropriate remedy is to remand for resentencing unless the record ‘clearly 

indicate[s]’ that the trial court would have reached the same conclusion ‘even 

if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391.) 

Our review of the record reveals the trial court was fully aware of its 

discretionary power to impose either a concurrent or consecutive sentence

despite references to subdivision (e)(6) of the current version of the statute 

during the resentencing hearing. Before pronouncing the sentence, the trial 

court unequivocally stated: “The Court acknowledges that it has discretion to 

sentence concurrent. But it’s choosing to sentence consecutive in this case.”

(Italics added.) This express acknowledgment by the trial court of its 

authority to sentence Hernandez either concurrently or consecutively makes 

clear the trial court exercised informed discretion when it resentenced 

Hernandez.

Furthermore, the record shows the trial court would have sentenced 

Hernandez consecutively in any event. In addition to informing the parties 

that it intended to impose the maximum sentence possible at the initial 

sentencing hearing (see Hernandez, supra, D080015), the trial court informed 

the parties of its intention to sentence Hernandez consecutively in chambers 

prior to the resentencing hearing and repeated its intention twice prior to its

pronouncement of the sentence. On this record, we conclude the trial court

properly exercised its discretion when it imposed a consecutive sentence on

count 4 in accordance with the applicable version of section 667.6. 

Nor was there any violation of state or federal ex post facto clauses.

(See People v. Simmons (2012) 210 Cal.App.4th 778, 796-797.) The initial ex 

post facto argument raised in Hernandez’s opening brief was based on the 
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erroneous premise that “a full-term consecutive sentence for the violation of 

section 288.5, subdivision (a) in count 4 was not available before 2006” and 

therefore fatally flawed. Hernandez attempted to resurrect the ex post facto 

argument in his supplemental letter brief by claiming “the trial court 

expressly relied on a later version of 667.6” that was not in effect at the time 

the offense in count 4 was committed. Not only is this argument belied by 

the record as previously discussed, but Respondent aptly argues that no ex 

post facto violation occurred “because section 667.6 did, in fact, provide an

increased penalty for continuous sexual abuse at the time appellant 

committed his continuing offense[.]” 

C. Hernandez Forfeited any Error Based on a Deficient Statement of 

Reasons for Sentencing Pursuant to Section 667.6.

Prior to its pronouncement of the sentence, the trial court offered the 

following statement of reasons for imposing consecutive terms in this case:

“I find that the crimes and their objectives were predominantly independent 

of each other. The crimes involved separate acts of violence, or threats of 

violence, and the crimes were committed at different times with separate 

places rather than being committed so closely in time and place as to indicate 

a single period of aberrant behavior. Certainly from the testimony at trial, 

this is not a case of aberrant behavior. I do find that any one of these factors 

by itself justifies the imposition of consecutive sentences or consecutive terms 

in this case.” 

The trial court informed the parties of the sentence it intended to 

impose at a chambers conference prior to the resentencing hearing and 

provided counsel adequate opportunity to object at the hearing both before 

and after it stated its reasons and pronounced the sentence. Defense counsel 

did not raise any objection or seek a separate statement of reasons regarding 
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the trial court’s election to sentence Hernandez pursuant to section 667.6 in 

lieu of section 1170.1. 

Relying on People v. Belmontes (1983) 34 Cal.3d 335, 347-348, 

Hernandez argues for the first time in his supplemental brief that the trial 

court failed to include a statement of reasons for electing to sentence him 

under section 667.6 instead of section 1170.1. By failing to object on this 

ground in the trial court, Hernandez forfeited the issue on appeal. (See 

People v. Scott (2015) 61 Cal.4th 363, 406.) 

D. Clerical Errors Must be Corrected.

Hernandez provided the following directions for the correction of 

various clerical errors in the sentencing minute order and abstracts of 

judgment: 

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. [Citation.]

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 
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1996 to 2001. The abstracts of judgment shall be 

corrected accordingly. [Citation.]

At the outset of the resentencing hearing following remand, the trial court

referred to the remittitur issued in Hernandez, acknowledged that the 

corrections would be made as directed, and requested “the clerk’s office” make 

the corrections. However, it appears the trial court clerk has yet to make the 

corrections as previously directed, and the parties also correctly observed

that the February 1, 2023 minute order and the February 6, 2023 abstracts of 

judgment also require correction.

On February 1, 2023, the trial court made the following restitution

order: “The Court orders restitution – orders the defendant to pay restitution 

under 1202.4 to be collected by the Department of Corrections and 

Rehabilitation as follows: $2,654.95 to Victim Compensation Board, case 

number A17[-]6655906; $375 to Victim Compensation Board, case number 

A17[-]6667869; and $225 to Victim Compensation Board, case number A17[-] 

6667919. The Court will continue to reserve on victim restitution.” The 

February 1, 2023 minute order again separately lists the “$3,254.95” total to 

be collected in addition to the separate amounts comprising the total. The 

February 6, 2023 indeterminate and determinate abstracts of judgment 

similarly reflect the restitution error as well as the errors identified in 

Hernandez. 

The trial court must ensure the prompt correction of these records.

DISPOSITION

The February 1, 2023 sentence is affirmed. The trial court is directed 

to correct the trial court records as stated in this opinion, including the 

“**Corrected** [¶] Minute Order” dated September 20, 2021, page 2, and the 

minute order dated February 1, 2023, page 2, to remove “$3,254.95.” The 
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trial court is instructed to issue amended abstracts of judgment reflecting the 

sentence entered on February 1, 2023, correcting the years the count 4 crimes 

were committed (1996-2001), and removing “$3,254.95” from the restitution 

amounts listed. The trial court shall forward the amended abstracts of 

judgment to the California Department of Corrections and Rehabilitation.

CASTILLO, J.

WE CONCUR:

DO, Acting P. J.

BUCHANAN, J.