People v. Hernandez CA4/1

Filed 4/24/25 P. v. Hernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D083231

Plaintiff and Respondent,

v. (Super. Ct. No. SCE286092)

FRANCISCO RENE HERNANDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Christine M. Aros, 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, Senior Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.

The sole issue appellant Francisco Rene Hernandez raises is whether at his resentencing the trial court abused its discretion by declining to strike

a five-year Penal Code1 section 667, subdivision (a)(1) serious felony prior enhancement. We find no error in the sentence imposed and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On September 27, 2008, Hernandez and another individual approached two men in a vehicle and demanded all their belongings. Hernandez’s companion held the gun to one victim’s head while Hernandez and his accomplice made their demands. Based on that incident, on August 9, 2009, a jury convicted Hernandez of two counts of robbery (§ 211) and found true allegations as to both counts that, as a principal who committed both offenses, he was vicariously liable for being armed with a firearm (§ 12022, subd. (a)(1)). The trial court subsequently found true allegations that Hernandez served a prior prison term within the previous five years (§ 667.5, subd. (b)), had two serious felony priors (§ 667, subd. (a)(1)), and had two prior strikes (§§ 667, subd. (b)–(i) & 1170.12). The court sentenced Hernandez to concurrent terms of 25 years to life on each of counts one and two, plus a one-year section 12022, subdivision (a)(1) enhancement on each count. In addition, the sentence included a one-year section 667.5, subdivision (b) prison prior enhancement and two five-year section 667, subdivision (a)(1) serious felony prior enhancements, for a total term of 25 years to life plus 12 years. In 2022, Hernandez requested resentencing pursuant to Senate Bill No. 483. Effective January 1, 2022, Senate Bill No. 483 (2021–2022 Reg. Sess.) added what is now section 1172.75 to the Penal Code. (Stats. 2021, ch. 728, §§ 1, 3.) The statute retroactively invalidates prison prior enhancements imposed pursuant to section 667.5, subdivision (b), except