Filed 12/7/23 P. v. Hernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
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 Berna r dino County , Tony Raphael, Judge. Affirmed with directions to correct the sentencing minute orders and abstracts of judgmen t. 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 a nd Britton B. Lacy , Deputy Attorneys General, for Plaintiff and Respondent.2 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, th at th e trial court imposed an un authorized sentence of 15

- years
to

- life for his conviction on count 4 (continuous sexual abuse of a child in
violation of Penal Code 1 section 288.5 , subd. (a) ) because Hernandez committed that offense from September 1996 through September 200 1, before
the Legislature amend ed section 667.61, subdivision (c) to add section 288.5 as a One Strike offense. Th e matter was re manded 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 abstract s of judgment

. (See People v. Hernandez ( Sept

. 20 , 202 2 , D 0 80015 ) [nonpub. opn.] ( Hernandez ). )
In t his second appeal, Hernandez claims the sentence on count 4 (mid

term of 12 years, consecutive) must again be reversed and also seeks the correction of trial court records as directed in Hernandez as well as subseq uent 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.3

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 a ffirm the trial court’s judgment with directions for the correction of the trial court record. RELEVANT BACKGROUND
A fter a jury convicted Hernandez on all four count s of child sexual
abuse in 2021 , the trial court sentenced him to the upper term of 8 yea rs 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 schedu led a resentencing hearing for February 1, 2023 , where t he 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 200 1. Her n andez timely appea l ed

. In t his seco nd 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 per mitted until 2006. T he 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 m inute o rder 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, c h . 1402, § § 4, 7)4

whereby the Legislature enacted section 288.5 ( c ont inuous s exual a buse) 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 th at the
Le gislature 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, He r nandez maintains reversal is still
warranted

. As discuss ed 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 A

p plicable V

ersion of Penal Code S ection 667.6

. Sect ion 667.6 was enacted by the Legislature in 1979 to p rovide longer prison terms for certain sex offenders than otherwise permitted under
section 1170.1

. (Stats. 1979, c h . 944, § 10, p. 3258.) In 1989, the Legislature enacted section 288.5 ( c ontinuous s ex ual a buse) 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, c h . 1402, § 7

. ) Subdivision (c) of the applicable version of section 667.6 , wh ich 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,5

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 mad e substantive and organizational amendments to section 667.6

. (Stats. 2006, c h

. 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 offense s 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 T

rial C ourt W as F ully A ware of the S cope of its D iscretion

. Although i t 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 , He rnandez 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 n o t realize it had dis cretion 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.4 th 489, 496.) Yet , w hen a sentencing court wa s un a ware of the full scope of its6

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 i t 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
d espi te reference s to subdivision (e)(6) of the current version of the statute during the resentencing hearing

. Be fore 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 whe n 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 ( s ee Hernandez , supra, D080015 ) , the trial court informed the parties of its intention to sentence Hernandez consecutively in chambers prior to the re sentencing hearing and repeated its intention twice prior to its

p ronouncement of the sentence

. O n this record, w e conclude the trial court properly exercised its discretion when it impos ed a consecutive sentence on count 4 in accordance with the applicable version of section 667.6

. Nor was t here any violation of state or federal ex post facto clau ses

. ( Se e 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 the7

erroneous premise that “a full

- term consecutive sentence for the violation of section 288.5, subdivi sion (a) in c ount 4 was not available before 2006” and therefore fatally flawed. H ernandez attempt ed to resurrect th e ex post facto argument in his supplemental letter brief by cl aiming “the trial court expressly relied on a later version of 667.6 ” that w as not in effect at the time the offense in c ount 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 F

orfeited any E rror B ased on a D eficient S tatement of
R easons for S entencing P ursuant to S ection 667.6

. Prior to its pronouncement of the sentence , the trial court o ffered t he 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, o r 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. ”
T he trial court informed the parties of the sentence it intended to impose at a chamber s conference prior to the resentencing hearing and provided counsel adequate opportunity to object a t 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 state ment of reasons regarding8

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 t hat 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 th is ground in the trial court, Hernandez forfeited the issue on appeal

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

. )
D. Clerical E rrors M ust b e C orrected

. Hernandez provided the following directions for the correction of
various clerical errors in the sentencing m inute o rder and a bstracts of j udgment: At sentencing, the trial court impos ed 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. Ac cordingly, the sentencing minute order and indeterminate abstract of judgment shall be corrected to comport with the oral pronouncement of judgment. [Ci tation.]
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 occurre d between 1994 to 1995, and count 4 occurred between9 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 r emittitur issued in Her nandez , 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 t he parties also correctly observe d that the February 1, 2023 m inute o rder and the February 6, 2023 abstracts of judgment also require correction

. On February 1, 2023 , the trial court made the following res titution 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 C ompensation Board, case number A17 [

- ]
6667919. The Court will continue to reserve on victim restitution. ” T he February 1, 2023 m inute o rder again separately lists the “$3,254.95” total to be collected in addition to the separate amounts comprising the to tal

. T he February 6, 2023 indeterminate and determinate a bstracts of j udgment 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 F ebruary 1, 2023 sentence is affirmed . Th e trial court is directed
to correct the trial court records as stated in this o pinion, including the

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

m inute o rder dated February 1, 2023, p age 2, to remove “$3,254.95.” T he10

trial court is instructed to issue amended abstract s of judgment reflecting the
sentence entered on February 1, 2023 , correcting the years the count 4 crimes were committed (1996

- 2001), and remov ing “ $3,254.95” from the r estitution amounts listed. The trial court shall forward the amended abstract s of judgment to the California Department of Corrections and Rehabilitation.

CASTILLO, J.

WE CONCUR:

DO, Acting P. J.

BUCHANAN, J.