People v. Hrenko CA3

Filed 6/20/22 P. v. Hrenko CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C093705

Plaintiff and Respondent, (Super. Ct. No. 20CF01232)

v.

ANDREW THOMAS HRENKO,

Defendant and Appellant.

Defendant Andrew Thomas Hrenko was sentenced to serve 20 years 6 months in prison for committing four sex offenses against minors. On appeal, he contends: (1) insufficient evidence supports his conviction for annoying or molesting a child because he did not intend to be observed as he masturbated near sleeping children; (2) his sentence was not authorized under a sentencing scheme providing for consecutive full terms for specific sex offenses; and (3) the abstract of judgment inaccurately reflects his convictions. The People disagree with the first contention and concede the latter two.

1

Agreeing with the People, we remand for resentencing and with directions to correct the abstract of judgment, and we otherwise affirm the judgment. Because we remand for full resentencing, we need not address the parties’ contention raised in supplemental briefing that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), which modifies guidelines for the imposition of upper term sentences, applies to his case. That bill is now incorporated into current law and thus governs defendant’s resentencing. BACKGROUND Due to the limited scope of the issues on appeal, a full recital of the facts is unnecessary. Defendant raped his teenage daughter and attempted to do so again on a separate occasion. He also fondled a six-year-old child. And, late one rainy night, his girlfriend awoke to find he had left their bedroom and entered the room where his daughter and his girlfriend’s daughter were sleeping in the same bed. His girlfriend pulled open a curtain around the bed to discover defendant standing near the edge of the bed with his pants down and penis exposed, “maybe four to five inches” from her daughter, “looking at both the girls,” masturbating. It was dark in the room and the girls were not awakened. Defendant told his girlfriend he had “never been caught before.” A jury found defendant guilty of attempted forcible rape of a minor (Pen. Code, §§ 664, 261, subd. (a)(2));1 forcible rape of a minor (§ 261, subd. (a)(2)); committing a lewd act upon a child 14 years or younger (§ 288, subd. (a)); and misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). The court imposed an upper term of eight years for the lewd act as the principal term; a consecutive eleven-year upper term for