Filed 3/28/24 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
ERNIE HERNANDEZ III, Defendant and Appellant. F086156 (Super. Ct. No. PCF373627)



### OPINION

THE COURT * APPEAL from an order of the Superior Court of Tulare County. Stephen Drew, Judge. (Retired Judge of the Tulare County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Patrick J. Hennessey, Jr., under appointment by t he Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

-

* Before Hill, P. J., Franson, J. and Peña, J.2 INTRODUCTION Appellant and defendant Ernie Hernandez III (appellant) was convicted of
narcotics offenses an d other offenses in four separate superior court case numbers , and sentenced to an aggregate term of 12 years four months . He filed a direct appeal under only one of the four case number s

. While his direct appeal was pending, Senate Bill
No. 567 (2021

– 2022 Reg. Sess.) (Senate Bill 567) went into effect, and the appellate

co urt remanded the case on appeal for resentencing. On remand, the superior court resentenced appellant, he did not file an appeal from the resentencing, and the judgment
has become final. In this case, appellant filed a petition for resentencing in one of the four cases he
was convicted in , and alleged his petition was based on Penal Code 1 section “1170(d)(1) ( [Senate Bill] 567).” The trial court conducted a hearing and determined he had already
been resentenced in the companion case s , and appellant’s counsel conceded the petition was filed under the wrong statute. On appeal, appellate cou nsel filed a brief that summarize d the facts with citations to the record, raise d no issues, and ask ed this court to independently review the record. ( People v. Wende (1979) 25 Cal.3d 436.) Appellant filed a letter brief raising several
issues. We revie w tho se issues and affirm.

FACT UAL AND PROCEDURAL BACKGROUND The following facts are set forth to place in context appellant’s multiple convictions that resulted in the aggregate sentence that he is now challenging. 2

1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 After notice to the parties and without objection, this court take s judicial notice of the record and nonpublished opinion in appellant’s direct appeal, People v. Hernandez (May 10, 2 022, A164253) ( Hernandez )

. (Evid. Code, §§ 450, 452, subd. (d), 459; In re W.R. (2018) 22 Cal.App.5th 284, 286

– 287, fn. 2.) The following facts are summarized from the nonpublished opinion in Hernandez , and the probation report arising from those convictions

.3

Case No. PCF367364 On June 26, 2018, appellant was arrested after he was found in possession of a stolen vehicle. On June 28, 2018, a criminal complaint was filed in the Superior Court of Tulare County for receiving / possessing a stolen vehicle . On July 22, 2018, appellant posted bail.
Case No. PCF369732 On August 24, 2018, appellant was arrested for being i n possession of a nother
stolen vehicle. On August 28, 2018, a criminal complaint was filed for receiving/possession a stolen vehicle

. He was released on his own recognizance.
Case No. PCF373627 On December 1, 2018, appellant was arrested for being in possession of methamphetamine, cocaine, heroin, and a smoking device. On December 27, 201 8, an information was filed in case No. PCF373627 charging appellant with count 1, possession of methamphetamine for sale (Health & Saf. Code, § 11378 ); count 2 , possession of cocaine for sale (Health & Saf. Code, § 11351 ); count 3 , possession of heroin for sale (Health & Saf. Code, § 11351); and count 4, misdemeanor possession of narcotic s paraphernalia ( Health & S af

. Code , § 11364 , subd. (a)(1) ) , with

two on

- bail / own recognizance enhancements that at the time he committed the offenses,
he was rel ease d in case Nos. PCF369732 and PCF367364 (§ 12022.2) , and prior conviction allegations.
Plea P roceedings On February 21, 2019, appellant entered pleas in the three pending cases pursuant to a negotiated disposition. As part of the plea agreement, the trial court granted appellant’s motion to dismiss the prior strike conviction alleged in each of the4

three cases, and for a two

- week waiver of sentencing pursuant to People v. Cruz (1988)
44 Cal. 3d 1247

. 3
The trial court stated appellant’s maximum exposure was 12 years eight month s. T he indicated aggregate sentence for the three cases was seven years , with three years in custody and four years on supervised release. The par ties stipulated to the police reports and preliminary hearing transcripts as the factual basis for the pleas.
The trial court stated case No. PCF367364 would be the lead case , and a ppellant pleaded no contest to purchasing / receiving a stolen vehicle , a GMC Yukon, on June 26, 2018 ( § 496d), and admitted prior conviction allegations.
In case No. PCF373627, appellant pleaded no contest to count 1, possession of methamphetamine for sale; count 2, possession of cocaine for sale; count 3, possessi on of heroin for sale; and count 4, misdemeanor possession of narcotics paraphernalia ; and

a dmitted the two on

- bail enhancement s (§ 12022.1) , and admitted prior conviction allegations.
In case No. PCF369732, appellant pleaded no contest to purchasing / receiving a
stolen vehicle , a Chevrolet Silverado, on August 24, 2018 ( § 496d), and admitted prior conviction allegations.
The trial court ordered appellant to turn himself in for sentencing on March 8,
2019 , and advised him that if he failed to appear, he faced a maximum sentence of
12 years eight months , pursuant to the Cruz waiver

. Failure to A ppear On March 8, 2019, a ppellant failed to appear for sentencing as ordered, and a
bench warrant was issued

.

3 “A ‘ Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentenc e in excess of the bargained

- for term,’ if the defendant willfully fails to appear for sentencing.” ( People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.)5

Case No. PCF379033 Appellant’s fourth case arose from the following events, that occurred while there
were three outstanding bench warrants for his arrest. On March 26, 2019, an office r activated the lights on his patrol car to perform a traffic stop on a vehicle because of a broken side mirror. The vehicle initially pulled
over. As the officer walked to the vehicle, the driver drove away and ran a stop sign. The officer returned to his patrol car and began a pursuit . The driver of the vehicle went through additional stop signs, drove erratically, and failed to yield. The pursuit was halted because of public danger

. The vehicle was later found abandoned. An investigation of the vehicle’s license plate number led to appellant ’s girlfriend, who reported that appellant had taken her car. Appellant was subsequently located and
arrested on the three felony warrants and for violating parole. ( Hernandez , supra , A164253

. ) As a result of this incident, case No. PCF379033 was filed that charged appellant with evading an officer with willful disregard (Veh. Code, § 2800.4), three counts of failing to appear while released on bail/ his own recognizance ( § 1 320, subd. (b)) , and
other offenses . ( Hernandez , supra , A164253

. ) On October 7, 2019, after a jury trial, appellant was convicted of evading an officer and three counts of failure to appear. ( Hernandez , supra , A164253

. ) Sentencing H earing On February 7, 2020, the trial cou r t sentenced appellant on the multiple
convictions in the four pending case s

. Appellant had previously admitted section 667.5, subdivision (b) prior prison term enhancements ; the court dismissed these enhancements
as a result of subsequently

- enacted statutor y amendments that eliminated these
enhancements

.6

The trial court sentenced appellant to an aggregate term of 12 years four months
for th e convictions in the four cases , as follows

. In case N o. PCF379033, the trial court imposed the upper term of six years for count 2, felony evasion, plus a consecutive term of two years for the section 12022.1

on

- bail/ own recognizance enhancement; a consecutive term of one year four months (one

- third the midterm) for count 3, failure to appear ; and concurrent upper term s of
six years each for counts 4 and 5, failure to appear , for a total of nine years four months

. In case No. PCF367364 , the trial court imposed a consecutive term of one year (one

- third the midte rm) for purchasing/receiving a stolen vehicle.
In case No. PCF36 9 732 , 4 the trial court imposed a consecutive term of one year (one

- third the midterm) for purchasing/receiving a stolen vehicle.
In c ase No. PCF373627 , the trial court imposed a consecutive term of one year (one

- third the midterm) for count 2, possession of cocaine for sale ; a concurrent upper term of three years for count 1 , possession of methamphetamine for sale ; a concurrent upper term of four years for count 3 , possession of heroin for sale ; no custody was imposed for misdemeanor count 4 ; and the attached section 12022.1 enhancement was stayed , for a total of one year

. Direct A ppeal On February 28, 2020, appellant filed a notice of appeal in this court from the
convictions and sentence s imposed on February 7, 20 20 , but only for case
No. PCF379033 , where he was convicted after a jury trial of felony evasion and
three counts of failing to appear. Appellant ’s sole issue on appeal was the felony evasion
conviction had to be reversed because of i nstructional error

.

4 The February 7, 2020 sentencing hearing transcript incorrectly identifies this case number as “367732”; the correct case number is “369732.”7

On December 20, 2021, after briefing was completed, the Supreme Court
transferred case No. F0808 6 9 from the Fifth Appellate District to the Court of Appeal,
First Appellate District , Division Two (First District)

. On January 1, 2022, the amendments to section 1170 enacted by Senate Bill 567
became effective for cases that were not final and pending on appeal. 5 On February 4, 2022, the First District sent a briefing order for the parties to
address whether appellant’s case should be remanded for resentencing pursuant to
Senate Bill 567 since he was sentenced to upper terms for counts 2, 4, and 5 in

case No. PCF37 9033

. On May 10, 2022, the First District filed the nonpublished opinion in Hernandez , supra , A164253 , limited to appellant’s convictions and sentence imposed for his
convictions for felony evasion and failure to appear in case No. PCF379033

. The court rejected appellant’s claim of instructional error as to felony evasion

. As to the amendments enacted by Senate Bill 567, the appellate court stated “t he trial court imposed upper terms for counts 2, 4, and 5. The parti es agree that [Senate Bill] 567 applies retroactively to this case and that the matter should be remanded for resentencing under current ... section 1170. We agree with the parties and remand the matter to the trial court for resentencing.” ( Hernandez , supra , A164253 , at p. 1 7 .)
The appellate court vacated the sentence and remanded for a new sentencing hearing, and otherwise affirmed appellant’s convictions in case No. PCF379033

. ( Hernandez , supra , A164253 .)

5 As relevant to this case, and as explained below, Senate Bill 567 amended section 1170, subdivision (b)(1) to state: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise prov ided in paragraph (2).”8

Appellant did not file a petition for re hearing or review from the appellate court’s opinion

. R esentencing on R emand On October 7, 2022, the trial court held the resentencing hearing on remand. The instant record does not contain a reporter’s transcript from the hearing. The abstract of judgment and minute order state the court resentenced appella nt as to the four case s

. In case No. PCF 379 033, the trial court had previously sentenced appellant to the upper term of six years for count 2 , felony evasion ; it reduced th at sentence to the midterm of four years with a consecutive term of two years for the section 12022.1

on

- bail/ own recognizance enhancement; a consecutive term of one year four months (one

- third the midterm) for count 3, failure to appear; and reduced the concurrent upper terms of six years to concurrent midterms of four years each for counts 4 and 5, failure to
appear , for a total of seven years four months

. In case No. PCF373627, the trial court imposed a consecutive term of one year (one

- third the midterm) for count 2, possession of cocaine for sale; a concurrent
upper term of three years for count 1, possession of methamphetamine for sale; a concurrent upper term of four years for count 3, possession of heroin for sale; no custody imposed for misdemeanor count 4; and stayed the section 12022.1 enhancemen t , for a
total o f one year.
The abstract of judgment shows that the trial court did not impose any terms for
case Nos. PCF367364 and PCF36 9 732 , the two cases for receiving stolen vehicles.
The abstract further shows that a ppellant’s aggregate sentence for case
Nos. PC F379033 , PCF367364 , PCF36 9 732 , and PCF373627 was modified from
12 years four months to eight years four months. Appellant did not file an appeal from the trial court’s resentencing order , and that judgment is now final.9 APPELLANT’S PETITION The instant appeal arises from a handwritten petition that appellant filed in the trial
court, in pro pria persona , on January 25, 2023, for resentencin g only as to

case No. PCF373627 , where he pleaded to three counts of possession for sale. Appellant’s petition stated it was filed pursuant to section “1170(d)(1) ( [Senate Bill] 567)

. ” Appellant requested appointment of counsel. Appellant checked boxe s on a handwritten form that declared he was convicted of possession of a controlled substan ce for sale, he could not be convicted of
“3 yrs U pper/4 yrs U pper T erms” because of “changes to section 1170(d)(1) made effective on January 1 , 2022 ( [Senate Bill] 567) , ” and requested that his “ H igh T erm s ” be
vacated and he be resentenced . He further declared that he “experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence [capitalization omitted] ,” performed acts in prison that tended to
indicate rehabilita tion or the potential for rehabilitation, maintained family ties, and had no disciplinary actions within the prior five years.
The trial court appointed counsel and set a hearing on the petition.
The C ourt’s D enial of the P etition On April 4, 2023, the trial court held a hearing on appellant’s petition. Appellant

was represented by counsel. Appellant’s counsel stated she spoke to appellant “to find out exactly what his issue is regarding his sentence.” Counsel stated appellant was originally sentenc ed on at least three cases in February 2020, the aggravated terms were imposed in the lead case, and the law subsequently changed as to the upper terms . Counsel further stated appellant was resentenced in October 2022 to a lesser term, but his sentence wa s not recalled in
case No. PC F 373627, which was the basis for his current petition. Appellant had

concurrent upper terms imposed in case No. P C F373627, and counsel was not sure10

whether th ose terms had to be recalled for resentencing since they did not add anything to appellant’s sentence. The prosecutor stated appellant’s current petition should “be withdrawn. The basis by which he’s filed his petition is not applicable in this case. I think he filed a petition saying that because he was at the time of the commission under the age of 18, that he was serving 25

- to

- life that he should be given a resentencing.” Appellant’s
counsel concurre d that appellant used a “fill

- in form that he received from the prison. It wasn’t applicable to his case.”
The trial court agreed with the parties that appellant ’s petition was based on inapplicable statutes, and denied the petition filed in case No. PCF373627. The court also ordered the abstract of judgment fr om the October 2022 resentencing hearing sent to the Department of Corrections and Rehabilitation and placed in the superior court’s records for each of appellant’s four cases. 6 On April 21, 2023, appellant filed a timely notice of appeal.
DISCUSSION As explained above, appellate counsel filed a Wende brief in this appeal. Appellant filed a letter brief raising the following issues. A. Appellant’s A ggregate S entence Appellant states that at the resentencing hearing in 2022, the trial court imposed a
term of 10 years four months, and not eight years four months as stated in his appellate counsel’s brief.

6 In this appeal , appellate counsel states that he directed a letter to the superior court and requested a copy of the abstract for the October 2022 resentencing hearing , as discussed by the parties. The amended abstract was provi ded to counsel, and filed with this court under case No. F0808 6 9, which was appellant’s original appeal in
case No. PCF379033 that was transferred to the First District.11

As set forth above, however, the abstract of judgment shows that appellant was
resentenced at the hearing on remand to an aggregate term of eight years four months.
B. Section 12022.1 E nhancements Next, appellant contends appellate counsel’s brief erroneously states that a

two

- year term was imposed for a section 12022.1 “weapon” enhancement, and declares
that he was never charged with a weapon enhancement. Appellant is correct that counsel’s brief erroneously states that he was sentenced
for a “weapon allegation under ... section 12022.1.” There were no weapon allegations pleaded or proved in this case. Section 12022.1 defines the on

- bail enhancement s that were alleged and found true in case No. PCF 379 033, where the trial court correctly imposed a two

- year term for the on

- bail enhancement . The court stayed the term imposed for th e section 12022.1 on

- bail enhance ment in case No. PCF373627 , and these terms are correctly identified in the abstract of judgment.
C. Senate Bill 567 Appellant’s petition declared it was filed pursuant to section “1170(d)(1) ( [Senate Bill] 567),” that he “experienced psychological, phy sical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence [capitalization omitted] ,” and also the trial court erroneously imposed “ H igh T erms” at the hearing on remand in violation of Senate Bill 567.
In his letter brief on appeal , a ppellant asserts his petition was for modification of
his sentence in case No. P C F373627 pursuant to “ [Senate Bill] 567” because he was sentenced to “ H igh T er m s ,” and the high term s were not reduced at the 2022 resentencing hearing

. Appellant’s petition cite s statutes and language that are inapplicable to his case: subdivisions (b) and (d) of section 1170. Effective January 1, 2022, Senate Bill 567
amended section 1170 , subdivision s (b) (1) and (b)(2) to state that “t he trial court may12

impose an upper term sentence only where there are circumstances in aggravation that justify the imposition of a term of impr isonment exceeding the middle term, and the facts underlying all of the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or a trial court if the defendant has consented to a court trial.” ( People v. Dunn (2022) 81 Cal.App.5th 394, 402.)
Senate Bill 567 also amended section 1170 , subdivision ( b ) (6)(A) and (B) to state the sentencing court shall impose the lower term if the defendant ’s psychological, physical, or childhood trauma, or his youth (defined as under the age of 26 years) contributed to the commission of the offense, unless it finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the
lower term would be contrary to the interests of justice. (§§ 1170, subd. ( b )(6), 1016.7, subd. (b) ; People v. Tilley (2023) 92 Cal.App.5th 772, 777

– 778.) Finally, section 1170, subdivision (d)(1)(A) states that “[w]hen a defendant who
was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a
p etition for recall and resentencing. ” Senate Bill 567’s amendments to section 1170 were retroactive to all cases that

were pending on appeal and not yet final when the amendments became effective on January 1, 2022. However, Senate Bill 567’s amendments do not apply to final judgments. ( People v. Flores (2022) 73 Cal.App.5th 1032, 1039; People v. Fox (2023) 90 Cal.App.5th 826, 831.) Appellant did not file a notice of appeal from the trial court’s October 2022 resentencing hearing and that judgment is now final. The ameliorative effects of the amendments enacted by Senate Bill 567 were only applicable to nonfinal convictions. ( People v. Flores , supra , 73 Cal.App.5th at p. 1039.)13

Ev en if appellant’s claims were cognizable in this appeal, there is no indication in the record that at the resentencing hearing the trial court violated section 1170 by failing to state reasons for imposing the upper concurrent terms as part of his aggregat e sentence (§ 1170, subds. (b)(1), (b)(2)); appellant sought the lower term based on psychological or childhood trauma (§ 1170, subd. (b)(6)(A) & (B)); and he was not sentenced to life without the possibility of parole (§ 1170, subd. (d)(1)). By failing t o object at the resentencing hearing and failing to file an appeal, appellant forfeited his purported section 1170 claims. ( People v. Scott (1994) 9 Cal.4th 331, 353; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1512; People v. Tilley , supra , 92 Cal.App.5th at pp. 777

– 778.) DISPOSITION
The trial court’s order of April 4, 2023, denying appellant’s petition, is affirmed.