P. v. Hernandez









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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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, v. CARLOS ARTURO HERNANDEZ, Defendant and Appellant.

G046096 (Super. Ct. No. 07CF2844) O P I N I O N

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, href="http://www.fearnotlaw.com/">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
Codehref="#_ftn1" name="_ftnref1" title="">[1]
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 href="http://www.fearnotlaw.com/">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),href="#_ftn2" name="_ftnref2" title="">[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 court then imposed consecutive
15-year-to-life terms on counts three, five, and six. The court imposed 15-year-to-life terms on
counts two and four and ordered those terms to be served concurrently with the
sentence imposed on count one. After
sentencing defendant to the above indeterminate term, the court imposed a
determinate sentence of five years, the middle term, for furnishing marijuana
to a minor (count eight) and a consecutive term of eight months (one-third the
middle term) on count seven.

II

DISCUSSION

Section 667.61 provides
an alternate sentencing scheme for certain sex offenses. (People
v. Jones (2012) 54 Cal.4th 350, 368.)
When a defendant is convicted of one or more of the listed offenses
against than one victim, section 667.61 provides for a sentence of 15 years to
life. (§ 667.61, subds. (b),
(e)(4).) The offenses that qualify for
the enhanced sentencing are: “(1) Rape,
in violation of paragraph (2) or (6) of subdivision (a) of Section 261. [¶] (2) Spousal rape, in violation of
paragraph (1) or (4) of subdivision (a) of Section 262. [¶] (3) Rape, spousal rape, or sexual
penetration, in concert, in violation of Section 264.1. [¶] (4) Lewd or lascivious act, in violation
of subdivision (b) of Section 288. [¶]
(5) Sexual penetration, in violation of subdivision (a) of Section 289. [¶] (6) Sodomy, in violation of paragraph (2)
or (3) of subdivision (c), or subdivision (d), of Section 286. [¶] (7) Oral copulation, in violation of
paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section
288a. [¶] (8) Lewd or lascivious act, in
violation of subdivision (a) of Section 288.
[¶] (9) Continuous sexual abuse of a child, in violation of Section
288.5.” (§ 667.61, subd. (c).) Defendant argues the trial court erred in
imposing indeterminate sentences on counts two (§ 286, subd. (c)(1)) and three
(§ 288a, subd. (c)(1)). The Attorney
General agrees.

Section 286, subdivision
(c)(1), the offense charged in count two of the information, provides: “Any person who participates in an act of
sodomy with another person who is under 14 years of age and more than 10 years
younger than he or she shall be punished by imprisonment in the state prison
for three, six, or eight years.” The
15-year-to-life indeterminate term provided by section 667.61 applies only if
the sodomy was “in violation of paragraph (2) or (3) of subdivision (c), or
subdivision (d), of Section 286.” (§
667.61, subd. (c)(6).) Section 286,
subdivision (c)(2)(A) requires the act of sodomy to be “accomplished against
the victim’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.” The information did not allege and the jury
did not find defendant used force, violence, duress, menace, or fear in
committing sodomy. Neither did it allege
nor the jury find defendant acted in concert with another as required by
subdivision (d) of section 286. Because
defendant’s conviction in count two did not qualify for sentencing pursuant to
section 667.61, the trial court erred in imposing an indeterminate sentence on
count two.

The court also erred in
imposing an indeterminate sentence on count three. Defendant was charged in that count with oral
copulation on a child under 14 in violation of section 288a, subdivision (c)(1). Oral copulation on a child under 14 and more
than 10 years younger than the defendant is punishable “by imprisonment in the
state prison for three, six, or eight years.”
(§ 288a, subd. (c)(1).) Oral
copulation in violation of section 288a is subject to an indeterminate term of
prison pursuant to section 667.61 only if the oral copulation was “in violation
of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section
288a.” (§ 667.61, subd. (c)(7).) Defendant was not charged with and the jury
did not find defendant used force, violence, duress, menace, or fear of
immediate and unlawful bodily injury, as required by subdivision (c)(2) of
section 288a, or that he accomplished the offense by threatening to retaliate
against the victim or another person in the future, as required by subdivision
(c)(3) of section 288a, or that the oral copulation was committed while
defendant was acting in concert with another, as set required by subdivision
(d)(1) of section 288a.

Because defendant’s convictions
on counts two and three did not qualify for sentencing under section 667.61,
the court erred in imposing 15 year-to-life terms on each count. We therefore remand the matter to the trial
court for resentencing.

III

DISPOSITION

The convictions are affirmed
and the matter is remanded for resentencing.







MOORE,
J.



WE CONCUR:







O’LEARY, P.
J.







BEDSWORTH, J.