People v. Hernandez CA5

Filed 3/27/26 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F089634 Plaintiff and Respondent, (Super. Ct. No. BF154420A) v.

PEDRO TORRES HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., DeSantos, J. and Harrell, J.

INTRODUCTION Appellant Pedro Torres Hernandez was resentenced under Penal Code section 1172.75,1 which resulted in a sentence that was lengthier than the original. Appellant appeals claiming his sentence is unauthorized and violates section 1172.75, subdivision (d)(1), prohibiting courts from imposing a longer sentence than the one originally imposed. Appellant also claims the court erred when it reimposed upper terms on two counts based on factors not found true by a jury or stipulated to by appellant. The People concede appellant’s sentence is unauthorized but contend appellant’s second claim is moot. We agree with the People on both points. We vacate the sentence and remand the matter for the trial court to resentence appellant under section 1172.75, directing the court to comply with subdivision (d). In all other respects, we affirm the judgment. PROCEDURAL SUMMARY In 2015, appellant was convicted by court trial of assault on a peace officer by means of force likely to cause great bodily injury (§ 245, subd. (c), counts 1 & 2); resisting an executive officer with force (§ 69, count 3); assault with a deadly weapon (§ 245, subd. (a)(1), count 4); and domestic violence (§ 273.5, subd. (a), count 5). The court found several allegations to be true, including a great bodily injury enhancement (§ 12022.7, subd. (a)) and two prior prison terms under section 667.5, subdivision (b) and prior strike allegations (§ 667, subd. (e)). The trial court sentenced appellant to a term of 25 years to life on count 2 (§ 245, subd. (c)), plus three years for the infliction of great bodily injury enhancement (§ 12022.7, subd. (a)), and two years for two prior prison terms (§ 667.5, subd. (b)). The court imposed the following terms concurrent to count 2: on counts 1 and 4, 25 years to life plus two years for the two prior prison terms (§ 667.5, subd. (b)); and on