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Filed 6/20/22 P. v. Hrenko CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW THOMAS HRENKO,

Defendant and Appellant.

C093705

(Super. Ct. No. 20CF01232)

Defendant Andrew Thomas Hrenko was sentenced to serve 20 years 6 months in 

prison for committing four sex offenses against minors. On appeal, he contends: 

(1) insufficient evidence supports his conviction for annoying or molesting a child 

because he did not intend to be observed as he masturbated near sleeping children; (2) his 

sentence was not authorized under a sentencing scheme providing for consecutive full 

terms for specific sex offenses; and (3) the abstract of judgment inaccurately reflects his 

convictions. The People disagree with the first contention and concede the latter two. 
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Agreeing with the People, we remand for resentencing and with directions to correct the 

abstract of judgment, and we otherwise affirm the judgment.

Because we remand for full resentencing, we need not address the parties’ 

contention raised in supplemental briefing that Senate Bill No. 567 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 731, § 1.3), which modifies guidelines for the imposition of upper 

term sentences, applies to his case. That bill is now incorporated into current law and 

thus governs defendant’s resentencing.

BACKGROUND

Due to the limited scope of the issues on appeal, a full recital of the facts is 

unnecessary.

Defendant raped his teenage daughter and attempted to do so again on a separate 

occasion. He also fondled a six-year-old child. And, late one rainy night, his girlfriend 

awoke to find he had left their bedroom and entered the room where his daughter and his 

girlfriend’s daughter were sleeping in the same bed. His girlfriend pulled open a curtain 

around the bed to discover defendant standing near the edge of the bed with his pants 

down and penis exposed, “maybe four to five inches” from her daughter, “looking at both 

the girls,” masturbating. It was dark in the room and the girls were not awakened. 

Defendant told his girlfriend he had “never been caught before.” 

A jury found defendant guilty of attempted forcible rape of a minor (Pen. Code,

§§ 664, 261, subd. (a)(2));

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forcible rape of a minor (§ 261, subd. (a)(2)); committing a 

lewd act upon a child 14 years or younger (§ 288, subd. (a)); and misdemeanor annoying 

or molesting a child (§ 647.6, subd. (a)(1)). The court imposed an upper term of eight 

years for the lewd act as the principal term; a consecutive eleven-year upper term for 

1 Undesignated statutory references are to the Penal Code.
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rape; a consecutive one-third the middle term of one year six months for attempted rape; 

and a concurrent one-year term in county jail for annoying or molesting a child.

DISCUSSION

I

Conviction for Annoying or Molesting a Child

“To convict a defendant of violating section 647.6, the prosecution must prove: 

(1) the defendant engaged in conduct directed at a child; (2) a normal person, without 

hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s 

conduct; (3) the defendant’s conduct was motivated by an unnatural or abnormal sexual 

interest in the child; and (4) the child was under the age of 18 years at the time of the 

conduct. It is not necessary that the child actually be irritated or disturbed or that the 

child actually be touched. [Citations.]” (People v. Clotfelter (2021) 65 Cal.App.5th 30, 

50, citing CALCRIM No. 1122; People v. Lopez (1998) 19 Cal.4th 282, 289.) Conceding 

that masturbating near the sleeping children was objectively disturbing and motivated by 

an unnatural or abnormal sexual interest in children under age 18, defendant takes issue 

with the first element only, arguing his conduct was not “directed” at the children. 

Relying exclusively on People v. Phillips (2010) 188 Cal.App.4th 1383 (Phillips), 

defendant asserts the evidence he annoyed or molested the children under section 647.6, 

subdivision (a)(1) “is insufficient as a matter of law to sustain the requisite finding that 

[he] acted with an intent to be observed by the children and he was not observed by 

them.” The People contend defendant misreads Phillips and that “the intent to be 

observed is not a separate element of section 647.6, subdivision (a)(1).” Agreeing with 

the People that defendant’s sufficiency argument is premised on a misunderstanding of 

the law, we reject defendant’s challenge.

In Phillips, a 15-year-old student leaving school for the day saw the defendant 

masturbating in his car parked in front of the school. (Phillips, supra, 188 Cal.App.4th at 

p. 1386.) The defendant appealed his section 647.6, subdivision (a)(1) conviction, 
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arguing his conduct was not directed at her or any other child because there was no

“proof that he focused his conduct toward a specific child victim.” (Phillips, at p. 1388.) 

Finding “there is nothing in the statute or any case law directly on point that requires the 

defendant to have singled out any particular child (or group of children) in advance for 

his actions” (id. at pp. 1395-1396), the court rejected the defendant’s argument, stating,

“To conclude otherwise—to find that a defendant can (without violating [ ] section 647.6, 

subdivision (a)(1)) annoy or molest any child simply because he has not focused his 

actions on any particular child—makes no sense and would undermine the purpose of the 

statute to protect all children from sexual predators.” (Phillips, at p. 1396.) The court 

summarized the elements of a section 647.6, subdivision (a)(1) violation, describing the 

“directed” element as follows: “the conduct is directed at a child or children, though no 

specific child or children need be the target of the offense . . . .” (Phillips, at p. 1396.)

Under the unique facts before it, the Phillips court found the evidence sufficient to 

sustain the defendant’s conviction because “it could be inferred that he knowingly parked 

in a location where it was likely he would be observed by children.” (Phillips, supra, 188 

Cal.App.4th at p. 1388.) “The intent to be observed while engaging in the offensive 

conduct is subsumed in the element that the offender ‘directs’ his conduct toward a 

child.” (Id. at p. 1394.) Unlike an act of mere voyeurism, the court reasoned,

undertaking offensive conduct where it will likely be observed by children “gives rise to 

the inference that the actor is a sexual predator—thus, criminalizing the conduct serves 

the underlying purpose of the statute to protect children from sexual predators.” (Id. at 

pp. 1394-1395.) Consequently, “notwithstanding the fact there was no evidence the 

victim was known in advance to Phillips or she was the specific target of Phillips’s

offensive conduct,” the court concluded the evidence was sufficient to show that “Phillips 

was engaged in objectively annoying and irritating conduct, that he was motivated by an 

unnatural or abnormal sexual interest in children, that he directed his conduct towards 
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children, intending to be observed by some child and that he was in fact observed by [the 

victim].” (Id. at p. 1397.)

Relying on this language, defendant asserts that because it was dark and rainy and 

he did not wake the children as he masturbated inches away from them, the evidence is 

insufficient as a matter of law to show he acted with the requisite intent to be observed. 

But Phillips held only that where the defendant did not target a specific victim, yet acted 

so as to give rise to an inference he was a sexual predator by masturbating where he 

would likely be observed by children as they left school, a trier of fact could reasonably 

conclude he directed the conduct at a child for purposes of section 647.6, subdivision 

(a)(1). That Phillips did not hold an intent to be observed necessary for a section 647.6 

violation is demonstrated by the fact the court did not include this intent in its summary 

of the elements of a section 647.6 conviction. Rather, it, merely stated “no specific child 

or children need be the target of the offense” for the conduct to be considered “directed” 

at a child or children. (Phillips, supra, 188 Cal.App.4th at p. 1396.) Furthermore, 

Phillips concluded that CALCRIM No. 1122, which did not and does not include an 

intent to be observed as an element of the offense, was properly given. (Phillips, at p. 

1388.) And no such intent is reflected in CALJIC No. 16.440, which was revised in 2011 

in response to Phillips to provide that the proscribed conduct may be motivated by 

“children in general.”

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 Nor is an intent to be observed mentioned in the three published 

decisions citing Phillips. (See People v. Schoop (2012) 212 Cal.App.4th 457, 473; 

People v. Valenti (2016) 243 Cal.App.4th 1140, 1161; San Nicolas v. Harris (2016) 

7 Cal.App.5th 41, 47.)

2 The comment accompanying the revision stated Phillips “held that the crime is 

committed when motivated by either an unnatural or abnormal sexual interest in a 

particular child, or in children generally.” (Com. to CALJIC No. 16.440 (2021-2 ed.) 

p. 1078.)
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Defendant cites no authority suggesting Phillips applies where conduct is directed 

at victims who are known in advance or are the target of the offensive conduct. Neither 

does he offer any explanation of how such an application of Phillips would align with

People v. Kongs (1994) 30 Cal.App.4th 1741, which upheld a section 647.6 conviction 

where the defendant plainly did not intend to be observed when he used the “subterfuge 

of pretending to be a legitimate photographer while clandestinely trying to peek at 

[aspiring underage] models’ genital areas . . . .” (Kongs, supra, at p. 1752.) Likening the 

defendant’s conduct to a “peeping Tom,” the Kongs court concluded: “The deciding 

factor for purposes of a [ ] section 647.6 charge is that the defendant has engaged in 

offensive or annoying sexually motivated conduct which invades a child’s privacy and 

security . . . .” (Kongs, at p. 1752, italics omitted.)

Phillips did not criticize or attempt to recast the reasoning underlying this case. 

We conclude, therefore, that Phillips did not add a new element to a section 646.7, 

subdivision (a)(1) conviction; consequently, proof defendant intended to be observed by 

the sleeping children when he masturbated inches away from them was unnecessary for 

his conduct to be considered “directed” at those children.

Accordingly, because it was premised on a misinterpretation of the law, we reject 

defendant’s contention that the evidence for his section 647.6, subdivision (a)(1)

conviction was insufficient as a matter of law.

II

Unauthorized Sentence

Defendant asserts, and the People agree, that the trial court erred in imposing a 

full, separate, and consecutive term for his forcible rape conviction. We agree his 

sentence is unauthorized, and that full resentencing is warranted.

Generally, if a sentencing court elects to impose consecutive sentences when a 

defendant is convicted of multiple offenses, the court must impose an aggregate sentence 

composed of a principal term and subordinate one-third middle terms. (§ 1170.1, subd. 
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(a).) However, an exception applies if the offenses involved are certain specified sex 

offenses. In that instance, “a full, separate, and consecutive term may be imposed for 

each violation of [specified sex crimes] if the crimes involve the same victim on the same 

occasion.” (§ 667.6, subd. (c).) Or, “[a] full, separate, and consecutive term shall be 

imposed for each violation of [specified sex crimes] if the crimes involve separate 

victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d)(1).)

Here, defendant’s offenses occurred on separate occasions; thus, section 667.6, 

subdivision (c) does not apply. Also inapplicable is subdivision (d) of section 667.6, as

defendant’s rape conviction is his only applicable offense. (§ 667.6, subd. (e).)

Therefore, because section 667.6 does not apply to defendant, his sentence was 

formulated in an unauthorized manner. 

Accordingly, we remand for full resentencing.

III

Abstract of Judgment

We also agree with the parties that the abstract of judgment warrants correction.

Count 1, for attempted forcible rape of a minor, which currently refers only to the crime 

of rape under section 261, subdivision (a)(2), should be corrected to indicate that it is also 

based on section 664, for the attempt. And count 2, for “Forcible Rape—Minor Victim 

14 Years,” should be clarified to reflect the jury found only that the victim was a minor 

14 years or older, which subjected defendant to a seven-, nine-, or eleven-year term. 

(§ 264, subd. (c)(2).) 

DISPOSITION

The sentence is vacated, and the matter is remanded for resentencing. Upon 

resentencing, the new abstract of judgment is to reflect that the conviction under count 1
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is based on section 664, and that the conviction for count 2 involved a minor 14 years or 

older. In all other respects, the judgment is affirmed.

 KRAUSE , J.

We concur:

 HOCH , Acting P. J.

 EARL , J.