Filed 9/30/26 P. v. Bernal 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
THE PEOPLE, C103653
Plaintiff and Respondent,
(Super. Ct. No. STK-CR-FE-
v. 2023-0005100)
JOSE GIBRAN MARROQUIN BERNAL,
Defendant and Appellant.
The trial court sentenced defendant Jose Gibran Marroquin Bernal to an aggregate
term of 24 years after a jury found him guilty on three counts of forcible lewd act upon a
child under age 14 and one count of lewd act upon a child under age 14. Appointed
counsel asks this court to review the record and determine whether there are any arguable
issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable
error that would result in a disposition more favorable to defendant, we affirm the
judgment. We have, however, identified a clerical error in the abstract of judgment. As
detailed below, we direct the trial court to prepare a corrected abstract of judgment.
FACTS AND PROCEDURAL HISTORY
Around May or June 2022, defendant moved in with his sister, her husband, and
their four children. While living with his sister’s family, defendant slept in the den,
which also doubled as a craft room that stored school supplies for the children.
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Several months after he moved in, defendant first touched his eight-year-old niece
I. Doe. While she was in the den grabbing some school supplies, defendant asked I. Doe
to come over to him. When she did, defendant began massaging her shoulders, her spine,
and then her buttocks with both hands. When I. Doe tried to walk away, defendant
grabbed her wrist and began massaging her buttocks again.
Several weeks later, a second incident occurred when I. Doe was in the den getting
school supplies. Defendant grabbed her wrist, pulled her over to him, and again started
massaging her buttocks. Sometime after this second incident, defendant moved out of his
sister’s home.
The third and fourth incidents took place at Easter, during a large family party
defendant attended at I. Doe’s home. The yo-yo I. Doe received from her grandmother as
an Easter gift broke. I. Doe, her friend, and defendant were inside the house trying to fix
it. When her friend left, defendant put his hand inside the back of I. Doe’s pants and
massaged her buttocks, touching her skin. When he removed his hand, I. Doe scooted to
the other end of the bench but stayed in the room because she still wanted her yo-yo
fixed. After it was fixed, defendant took the yo-yo into the den, and I. Doe followed him
to get it.
While in the den, defendant grabbed I. Doe and placed her on his lap. She could
feel his penis under her. When she tried to get up, he grabbed her and sat her back on his
lap. When she was eventually able to get up, defendant grabbed her wrist, gave her a
hug, and massaged her buttocks again.
About a week later, I. Doe confided in two of her cousins about the abuse. One of
them encouraged her to tell her parents, which she did. Her parents contacted the police,
and defendant was arrested. One of the arresting officers recorded defendant admitting to
touching his niece.
The prosecution charged defendant with three counts of forcible lewd act upon a
child under age 14 (Pen. Code, § 288, subd. (b)(1)) and one count of lewd act upon a
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child under age 14 (Pen. Code, § 288, subd. (a)). The information also alleged two
aggravating sentencing factors: (1) that I. Doe was a vulnerable victim; and (2) that
defendant occupied a position of trust.
The jury found defendant guilty on all counts and found the aggravating
sentencing factors true.
The trial court sentenced defendant to consecutive middle terms of eight years on
each of the three counts of forcible lewd act upon a child, for an aggregate term of 24
years. The court imposed a concurrent, low term sentence of three years on the lewd act
upon a child count.
The court issued a 10-year protective order, ordered defendant to pay $291 in
restitution, and reserved jurisdiction to order future restitution to I. Doe. The court also
ordered defendant to register as required by Penal Code section 290 and advised him that
he would be evaluated for the sexually violent program before his release. Finally, the
court awarded defendant 724 days of actual custody credit plus 109 days conduct credits
under Penal Code section 2933.1 for a total of 833 custody credits.
Defendant timely appealed.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.) Counsel advised
defendant of the right to file a supplemental brief within 30 days of the date of filing the
opening brief. More than 30 days elapsed, and we received no communication from
defendant.
Our review of the record found a discrepancy between the trial court’s oral
pronouncement and the abstract of judgment. Specifically, the abstract of judgment
indicates that the trial court imposed a $40 court operations assessment (Pen. Code,
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§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373). The trial
court did not orally impose either assessment. When there is a discrepancy between the
oral pronouncement of judgment and the minute order or the abstract of judgment, the
oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We
have inherent authority to correct errors to accurately reflect the “oral judgments of
sentencing courts.” (Id. at p. 185.) Accordingly, we strike the $40 court operations
assessment and the $30 criminal conviction assessment included in the abstract of
judgment. We order the abstract of judgment corrected to conform to the trial court’s
oral pronouncement of judgment.
Having examined the entire record pursuant to Wende, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment without the $40 court operations assessment (Pen. Code, § 1465.8)
or the $30 criminal conviction assessment (Gov. Code, § 70373) and forward a certified
copy to the Department of Corrections and Rehabilitation.
/s/
HULL, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
FEINBERG, J.
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