People v. Hernandez CA3

Filed 9/30/22 P. v. Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C095190

Plaintiff and Respondent, (Super. Ct. No. 19FE016011)

v.

DAVID ANTHONY HERNANDEZ,

Defendant and Appellant.

Defendant David Anthony Hernandez pled no contest to three robberies and guilty to one count of grand theft in exchange for a stipulated sentence of 16 years four months. Though the trial court sentenced him accordingly, he argues this case must be remanded for resentencing due to changes made to Penal Code1 section 1170, subdivision (b) by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567). He further contends, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court erred in refusing to stay his restitution fine and strike the assessments it imposed. We shall affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND An amended information charged defendant with second degree robbery (counts one, two & three) and grand theft (count four). (§§ 211, 487, subd. (a).) The information alleged an enhancement defendant personally inflicted great bodily injury in connection with count three. (§ 12022.7, subd. (a).) The information also alleged defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony (§ 667, subd. (a)). Because defendant’s arguments relate solely to his stipulated sentence and fines and assessments, we will forego an extended discussion of the facts of his crime. Suffice it to say, defendant and another man robbed two other men at a gas station. In a separate incident, defendant punched a third man in the face and took his cell phone, and hoverboard. In the last incident, defendant went into a store, asked to see a cellphone and ran away with it. Pursuant to the plea agreement, defendant pled no contest to counts one, two, three, guilty to count four, and admitted the great bodily injury enhancement. In exchange, the prosecution offered to dismiss the prior serious felony allegation and stipulated to a sentence of 16 years four months. The trial court confirmed the agreement to the stipulated sentence when it took defendant’s plea. Defense counsel’s only comment regarding sentencing was to ask for the “minimum fines/fees that the [c]ourt can impose.” The trial court imposed the stipulated term of 16 years four months in prison. Despite the probation report recommendation of $4,800 for the restitution fine and the suspended revocation fine, the trial court imposed a restitution fine of $1,000 (§ 1202.4, subd. (b)), with a matching, stayed parole revocation restitution fine (§ 1202.45). It also imposed a mandatory court operations assessment in the amount of $160, and a court facilities assessment in the amount of $120. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373.) The court waived and did not impose any other fines or fees.