People v. Hernandez CA5

California Court of Appeal Mar 23, 2026 No. F088997Unpublished

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Holding. The court held that the trial court erred in calculating the mandatory minimum sentence for a third-strike defendant, and that the proper remedy is to modify the judgment to the correct term rather than remanding for resentencing.

Issues

Whether the trial court miscalculated the mandatory minimum term for a third-strike defendant under Penal Code section 667, subdivision (e)(2).
Whether the appropriate remedy for an unauthorized sentence calculation is to remand for full resentencing or to modify the judgment on appeal.

Disposition. affirmed as modified

Quotations verified verbatim against the opinion

“We modify the judgment to reflect the correct sentence on count 1 of 45 years to life (§ 667, subd. (e)(2)(A)(i)) and, as so modified, affirm the judgment.”

“Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.”

Filed 3/23/26 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F088997 Plaintiff and Respondent, (Super. Ct. No. BF116784A) v.

ANDREW QUINTON HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberly A. Donohue, Assistant Attorney General, Amanda D. Carey and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.

Appellant Andrew Quinton Hernandez appeals from the judgment entered following a resentencing hearing conducted pursuant to Penal Code1 section 1172.75.2 Appellant was a third strike defendant convicted of second degree murder (§ 187, subd. (a); count 1) and other crimes. He was sentenced to an aggregate prison term of 126 years to life, consisting of, as relevant here, life with a minimum term of 51 years on count 1. He contends the sentence on count 1 was unauthorized because the court miscalculated the minimum term under section 667, subdivision (e)(2), and he is entitled to full resentencing. Respondent agrees that the court erred but contends the proper remedy is for this court to modify the judgment to reflect the correct term. We agree with respondent. We modify the judgment to reflect the correct sentence on count 1 of 45 years to life (§ 667, subd. (e)(2)(A)(i)) and, as so modified, affirm the judgment. RELEVANT PROCEDURAL BACKGROUND Verdict and Original Sentencing On November 10, 2008, appellant was convicted by jury of second degree murder (§ 187, subd. (a); count 1), with a true finding that appellant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)); possession of a firearm by a felon (former § 12021, subd. (a)(1); count 2); possession of ammunition by a felon (former § 12316, subd. (b); count 3); and escaping or attempting to escape custody in a pretrial facility (§ 4532, subd. (b)(2); count 4). Thereafter, true findings were made that appellant had suffered two prior strike convictions (§§ 667, subd. (c)-(j); 1170.12, subds. (a)-(e)),

People v. Hernandez CA5

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