People v. Hernandez CA3

Filed 3/2/22 P. v. Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C092574

Plaintiff and Respondent, (Super. Ct. No. CRF-2011- 370) v.

JUAN MANUEL HERNANDEZ,

Defendant and Appellant.

Defendant Juan Manuel Hernandez appeals the trial court’s denial of his postjudgment petition to recall his previously imposed and agreed-upon sentence of 21 years 4 months and resentence him pursuant to Penal Code section 1170.91.1 Recognizing the trial court based that denial on People v. King (2020) 52 Cal.App.5th 783 (King), defendant challenges that decision as well as People v. Brooks (2020)

1 Further undesignated statutory references are to the Penal Code.

1

58 Cal.App.5th 1099 (Brooks), which similarly rejected section 1170.91’s application to individuals serving stipulated sentences reached as the result of plea agreements. Because we agree with these authorities, we affirm the trial court’s denial. FACTUAL AND PROCEDURAL BACKGROUND As we explained in our previous unpublished decision upholding defendant’s convictions on appeal: “Between October 1, 2010, and November 30, 2010, defendant Juan Manuel Hernandez touched the vaginal area over the clothes of 12-year-old C.G. who had been sleeping. A search of defendant’s computer revealed over 100 images and 86 videos of minor girls in sexually-explicit poses and activities, as well as a photograph of defendant touching the vaginal area skin-to-skin of C.G. on August 1, 2010. Defendant also sent harassing or annoying text messages to another young girl on July 1, 2010. “Defendant entered a negotiated plea of no contest to possession of child pornography (. . . § 311.11, subd. (a); count 5), annoying or molesting a child, a misdemeanor (§ 647.6, subd. (a); count 6), and two counts of lewd or lascivious conduct upon a child under the age of 14 years (§ 288, subd. (a); counts 1 and 4) and admitted a strike prior (§ 667, subds. (b)-(i)) in exchange for the dismissal of the remaining counts and allegations, and a stipulated state prison sentence of 21 years and four months. The stipulated sentence consisted of the upper term of eight years on count 4, one-third the midterm or two years for count 1, and one-third the midterm or eight months for count 5, with all the terms doubled for the strike prior, and a concurrent 120-day jail term for count 6. Defendant also admitted violating probation in another case in exchange for no additional time.” (People v. Hernandez (Jul. 15, 2013, C070156) [nonpub. opn.], fn. omitted (Hernandez).) Following proceedings not relevant to this appeal, the trial court denied defendant’s motion to strike his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, noting defendant’s stipulated sentence and People v.