People v. Hernandez CA4/3

Filed 2/26/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G046096

v. (Super. Ct. No. 07CF2844)

CARLOS ARTURO HERNANDEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Carlos Arturo Hernandez was convicted of a number of sex offenses involving children under 14 years of age. The trial court imposed 15-year-to-life terms on two of the counts that do not qualify for such a sentence under Penal Code1 section 667.61. We therefore remand the matter to the trial court for resentencing. I FACTS As defendant raises only a sentencing issue on appeal, there is no need to recite the evidence at trial. On July 28, 2008, the Orange County District Attorney filed an information against defendant alleging he committed a number of sex offenses in the summer of 2007. Specifically, it charged defendant with a forcible lewd act on a child under 14 (§ 288, subd. (b)(1); count one), sodomy of a child under 14 (§ 286, subd. (c)(1); count two), oral copulation on a child under 14 (§ 288a, subd. (c)(1); count three), three counts of lewd act on a child under 14 (§ 288, subd. (a); counts four, five, and six),2 distribution of pornography to a minor (§ 288.2, subd. (a); count seven), and furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (a); count 8). The information further alleged counts one through six involved more than one victim (§ 667.61, subd. (c)(1)), and defendant engaged in substantial sexual conduct in committing the offense alleged in count one. (§ 1203.066, subd. (a)(8).) The jury found defendant guilty on all counts, found defendant engaged in substantial sexual conduct in the commission of the offense charged in count one, and found defendant committed a lewd offense on more than one child under 14. The trial court sentenced defendant to an indeterminate term of 60 years to life and a consecutive determinate term of five years eight months. Specifically, the court imposed a 15-years-to-life term on count one, designating it as the principal term. The