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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 the 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 and 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 numbers. While his direct appeal was pending, Senate Bill 

No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) went into effect, and the appellate 

court 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 Code1section “1170(d)(1) 

([Senate Bill] 567).” The trial court conducted a hearing and determined he had already 

been resentenced in the companion cases, and appellant’s counsel conceded the petition 

was filed under the wrong statute.

On appeal, appellate counsel filed a brief that summarized the facts with citations 

to the record, raised no issues, and asked this court to independently review the record. 

(People v. Wende (1979) 25 Cal.3d 436.) Appellant filed a letter brief raising several 

issues. We review those issues and affirm.

FACTUAL 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 takes judicial notice of 

the record and nonpublished opinion in appellant’s direct appeal, People v. Hernandez

(May 10, 2022, 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 in possession of another

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, 2018, 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 narcotics paraphernalia (Health & Saf. Code, § 11364, subd. (a)(1)), with 

two on-bail/own recognizance enhancements that at the time he committed the offenses, 

he was released in case Nos. PCF369732 and PCF367364 (§ 12022.2), and prior 

conviction allegations. 

Plea Proceedings

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 the 
4

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 months. 

The indicated aggregate sentence for the three cases was seven years, with three years in 

custody and four years on supervised release. The parties 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 appellant 

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, possession of 

heroin for sale; and count 4, misdemeanor possession of narcotics paraphernalia; and 

admitted the two on-bail enhancements (§ 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 Appear

On March 8, 2019, appellant 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 sentence 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 officer 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 (§ 1320, 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 Hearing

On February 7, 2020, the trial court sentenced appellant on the multiple 

convictions in the four pending cases. Appellant had previously admitted section 667.5, 

subdivision (b) prior prison term enhancements; the court dismissed these enhancements 

as a result of subsequently-enacted statutory amendments that eliminated these 

enhancements. 
6

The trial court sentenced appellant to an aggregate term of 12 years four months 

for the convictions in the four cases, as follows. 

In case No. 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 terms 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 midterm) for purchasing/receiving a stolen vehicle. 

In case No. PCF369732,

4

the trial court imposed a consecutive term of one year 

(one-third the midterm) for purchasing/receiving a stolen vehicle. 

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 was 

imposed for misdemeanor count 4; and the attached section 12022.1 enhancement was

stayed, for a total of one year. 

Direct Appeal

On February 28, 2020, appellant filed a notice of appeal in this court from the 

convictions and sentences imposed on February 7, 2020, 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 instructional 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. F080869 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. PCF379033. 

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 “the 

trial court imposed upper terms for counts 2, 4, and 5. The parties 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. 17.) 

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 provided in paragraph (2).”
8

Appellant did not file a petition for rehearing or review from the appellate court’s 

opinion. 

Resentencing on Remand

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 appellant as to the four cases. 

In case No. PCF379033, the trial court had previously sentenced appellant to the 

upper term of six years for count 2, felony evasion; it reduced that 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 enhancement, for a 

total of one year. 

The abstract of judgment shows that the trial court did not impose any terms for 

case Nos. PCF367364 and PCF369732, the two cases for receiving stolen vehicles. 

The abstract further shows that appellant’s aggregate sentence for case 

Nos. PCF379033, PCF367364, PCF369732, 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 propria persona, on January 25, 2023, for resentencing 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 boxes on a handwritten form that declared he was convicted of 

possession of a controlled substance for sale, he could not be convicted of 

“3 yrs Upper/4 yrs Upper Terms” because of “changes to section 1170(d)(1) made 

effective on January 1, 2022 ([Senate Bill] 567),” and requested that his “High Terms” 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 rehabilitation 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 Court’s Denial of the Petition

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 sentenced 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 was not recalled in 

case No. PCF373627, which was the basis for his current petition. Appellant had 

concurrent upper terms imposed in case No. PCF373627, and counsel was not sure 
10

whether those 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 concurred 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 from 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 Aggregate Sentence

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 provided to counsel, and filed with 

this court under case No. F080869, 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 Enhancements

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 enhancements that 

were alleged and found true in case No. PCF379033, where the trial court correctly 

imposed a two-year term for the on-bail enhancement. The court stayed the term 

imposed for the section 12022.1 on-bail enhancement 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, physical, or childhood trauma, 

including, but not limited to, abuse, neglect, exploitation, or sexual violence

[capitalization omitted],” and also the trial court erroneously imposed “High Terms” at 

the hearing on remand in violation of Senate Bill 567. 

In his letter brief on appeal, appellant asserts his petition was for modification of 

his sentence in case No. PCF373627 pursuant to “[Senate Bill] 567” because he was 

sentenced to “High Terms,” and the high terms were not reduced at the 2022 resentencing 

hearing. 

Appellant’s petition cites 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, subdivisions (b)(1) and (b)(2) to state that “the trial court may 
12

impose an upper term sentence only where there are circumstances in aggravation that 

justify the imposition of a term of imprisonment 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 

petition 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

Even 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 aggregate 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 to 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.