People v. Hernandez CA4/3

Filed 5/6/22 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059569

v. (Super. Ct. No. 08NF1682)

RUDOLPH JOSEPH HERNANDEZ, OPINION

Defendant and Appellant.

Appeal from orders of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted defendant Rudolph Joseph Hernandez of one count of first 1 degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count 1) , two counts of first degree robbery (§§ 211, 212.5, subd. (a); counts 2 and 3), two counts of false 2 imprisonment by violence (§§ 236, 237, subd. (a); counts 4 and 7) , one count of assault with a semiautomatic firearm (§ 245, subd. (b); count 5), and one count of carjacking (§ 215, subd. (a); count 6). The jury also found true allegations that non-accomplices were present during the commission of count 1 and that defendant personally used a firearm in the commission of counts 1 through 7. (§§ 667.5, subd. (c)(21), 12022.5, subd. (a), 12022.53, subd. (b).) The jury further found true allegations that defendant inflicted great bodily injury in the commission of counts 2, 4, 5, and 6. (§ 12022.7, subd. (a).) The court sentenced defendant to 28 years in state prison as follows: (1) one year and four months on count 3; (2) three years and four months for the firearm enhancement under section 12022.53, subdivision (b) on count 3; (2) two years on count 5; (3) three years and four months for the firearm enhancement under section 12022.5, subdivision (a) on count 5; (4) five years on count 6; (5) 10 years for the firearm enhancement under section 12022.53, subdivision (b) on count 6; and (6) three years for the enhancement under section 12022.7, subdivision (a) on count 6. The court also stayed sentences on counts 1, 2, and 4 pursuant to section 654. In August 2020, the California Department of Corrections and Rehabilitation (CDCR) sent a letter recommending the court recall and resentence defendant under provisions of former section 1170, subdivision (d)(i). The court declined to recall the sentence.