Filed 9/9/26 P. v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B341548
Plaintiff and Respondent,
(Los Angeles County Super.
Ct. No. BA509909)
v.
ALEX HERNANDEZ,
Defendant and Appellant.
.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor Hunter, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephen D. Svetich, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
INTRODUCTION
Alex Hernandez appeals from the judgment after a jury
convicted him of multiple crimes arising from three separate
attacks. He contends that the prosecutor committed misconduct
while cross-examining him at trial, that the trial court erred in
declining to strike his prior serious violent or felony conviction,
and that the court failed to exercise its sentencing discretion in
imposing the upper term on one of his convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hernandez Sexually Assaults Ximena Z.
On September 18, 2022 Ximena Z. was walking home when
she encountered Hernandez. Hernandez approached Ximena,
grabbed her with both hands, and pushed her up against a utility
box. He repeatedly hit her in the face with his fist. As Ximena
tried to get away, Hernandez slid his hand under her pants and
digitally penetrated her vagina and anus. He also groped her
breasts with such force that Ximena suffered injuries all over her
body, including to her shoulders, breasts, back, and face, and a
broken rib. She had lacerations and an abraded piece of skin in
the vaginal area.
B. Hernandez Attacks and Attempts To Rape Jazmine L.
On October 9, 2022 Jazmine L. encountered Hernandez in
front of her apartment. Hernandez said, “I didn’t know you lived
here.” Jazmine did not recognize Hernandez and tried to close
the door behind her. Hernandez forced it open and entered her
home. He slapped Jazmine in the face and grabbed her genital
area. He pushed her to the ground, hit her in the face, straddled
1
her, and groped her a second time. Jazmine started to kick and
scream, attempting to get Hernandez off her. She was finally
able to crawl away to safety.
C. Hernandez Attacks and Attempts To Rape
Elizabeth D.
On October 15, 2022 Elizabeth D. went to her car to
retrieve an item. When she opened the rear passenger door,
Hernandez pushed her from behind, and she fell into the car.
Hernandez got into the car, climbed on top of her, grabbed her
legs, pulled them apart and yelled, “Open. Open.” Fearing
Hernandez was going to rape her, Elizabeth screamed for help.
Hernandez began to strangle her so hard it became difficult for
her to breathe. Eventually, a security guard was able to pull
Hernandez off her. An examiner performed a sexual assault
response team examination the next day and found signs of
strangulation.
D. The People Charge Hernandez with Multiple
Crimes
The People charged Hernandez with one count of attempted
murder (Pen. Code, §§ 187, subd. (a), 664; count 1 (Elizabeth)),1
two counts of assault with intent to commit rape (§ 220, subd.
(a)(1); counts 2, 6 (Elizabeth and Ximena)), one count of
attempted rape by means of force (§§ 664, 261, subd. (a)(2); count
3 (Elizabeth)), assault with intent to commit rape while
committing a residential burglary (§ 220, subd. (b); count 4
(Jazmine)), and sexual penetration by means of force (§ 289,
subd. (a)(1)(A); count 5 (Ximena)). For counts 5 and 6 the People
1 Statutory references are to the Penal Code.
2
alleged that Hernandez inflicted great bodily injury, within the
meaning of sections 667.61, subdivision (d)(6), and 12022.8 and
that he had been convicted of a serious or violent felony, within
the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). The People alleged as aggravating
factors that the offenses involved great violence and bodily harm,
that the victims were particularly vulnerable, that Hernandez
engaged in violent conduct indicating a serious danger to society,
and that Hernandez served a prior term in prison. (Cal. Rules of
Court, rules 4.421(a)(1), (3), 4.421 (b)(1), (3).) At trial Hernandez
admitted that he had a prior serious or violent felony conviction
within the meaning of the three strikes law and that the
allegations of aggravating factors were true.
E. The Jury Convicts Hernandez on Five Counts, and
the Trial Court Sentences Him
The jury found Hernandez not guilty of attempted murder
but guilty of committing the other offenses. The jury also found
true the allegation he personally inflicted great bodily injury on
Ximena. The trial court sentenced Hernandez to an aggregate
prison term of 62 years to life (the upper term of six years,
doubled under the three strikes law, plus 25 years to life, also
doubled under the three strikes law), plus life with a minimum
parole eligibility of 14 years. Hernandez timely appealed.
DISCUSSION
A. The Prosecutor Did Not Commit Misconduct
Hernandez chose to testify at trial. He argues that, when
the prosecutor cross-examined him, the prosecutor committed
3
misconduct by asking him questions aimed at “eliciting a
negative reaction” from him and “provoking an argument,” thus
violating his constitutional right to a fair trial.
1. Relevant Proceedings
After the victims testified and counsel for Hernandez
concluded his direct examination of Hernandez, the prosecutor
proceeded to cross-examine Hernandez. The prosecutor asked,
“[Your attorney] asked you whether you’ve been convicted of a
crime before. You’ve been convicted for kidnap for robbery; is
that correct?” Hernandez answered, “Yes.” The prosecutor
continued, “Now, . . . do you appreciate the position that you’re in
right now, that . . . you’re in trial today for attacking three
different women?” Hernandez replied, “Yes, but I believe I’m also
a victim of a crime. You’ve got to hear my side of the story.” At
this point the court instructed Hernandez to answer questions
without making statements. The prosecutor resumed her line of
questioning:
“Q: So you don’t appreciate being in this position; right?
“A: No.
“Q: You don’t want to be here on trial for attacking three
different women on three separate dates; right?
“A: That comes from you, all that information.
“Q: So you don’t like me very much; right?
“A: No, I don’t.
“Q: Right.
“A: I don’t.”
Counsel for Hernandez objected to this line of questioning,
arguing it was irrelevant and argumentative. The trial court
overruled the objections. Hernandez again stated, “No, I don’t
4
like you.” He said, “You know, all I hear is lies.” The court
reminded Hernandez to answer the questions counsel asked him.
The prosecutor asked Hernandez if he believed she was the
person telling lies during the trial. Hernandez said, “Yes.”
2. Applicable Law and Standard of Review
“‘“A prosecutor who uses deceptive or reprehensible
methods to persuade the jury commits misconduct, and such
actions require reversal under the Federal Constitution when
they infect the trial with such ‘“unfairness as to make the
resulting conviction a denial of due process.”’”’” (People v.
Gonzales (2012) 54 Cal.4th 1234, 1294; see People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 427; People v. Fuiava
(2012) 53 Cal.4th 622, 679.) A showing of prosecutorial
misconduct does not necessarily justify reversal. (People v.
Barrett (2025) 17 Cal.5th 897, 948; People v. Caro (2019)
7 Cal.5th 463, 512.) The defendant must also show prejudice.
(Caro, at p. 513; People v. Foster (2010) 50 Cal.4th 1301, 1351-
1352.) When prosecutorial misconduct implicates federal
constitutional rights, the error is evaluated for prejudice under
Chapman v. California (1967) 386 U.S. 18, 23-24. When the
misconduct involves only state law, prejudice is assessed under
People v. Watson (1956) 46 Cal.2d 818. (See People v. Fernandez
(2013) 216 Cal.App.4th 540, 561.)
To preserve an argument on appeal of prosecutorial
misconduct, “the defense must make a timely objection at trial
and request an admonition; otherwise, the point is reviewable
only if an admonition would not have cured the harm caused by
the misconduct.” (People v. Clark (2016) 63 Cal.4th 522, 577; see
People v. Dykes (2009) 46 Cal.4th 731, 760.) However, an
5
appellant “will be excused from the necessity of either a timely
objection and/or a request for admonition if either would be
futile.’” (People v. Redd (2010) 48 Cal.4th 691, 745; see People v.
Peoples (2016) 62 Cal.4th 718, 797.)
3. The Prosecutor Did Not Commit Misconduct
Though trial counsel for Hernandez’s relevancy objection
did not preserve his prosecutorial misconduct argument (People v.
Dykes, supra, 46 Cal.4th at p. 766), counsel’s argumentative
objection, which the trial court overruled, arguably did. (See
People v. Choyce (2025) 18 Cal.5th 86, 116 [“argumentative
questions and sarcastic comments may at least contribute to
prosecutorial misconduct in conjunction with other inappropriate
conduct”].) Counsel for Hernandez, however, did not request an
instruction or admonition. (See Choyce, at p. 114 [failure to
“request any admonition or other remedy to cure the allegations
of prosecutorial misconduct” forfeits the argument on appeal];
People v. Nadey (2024) 16 Cal.5th 102, 185 [“To preserve a
prosecutorial misconduct claim for appeal, a defendant must
ordinarily make ‘a timely and specific objection at trial’ and
request an admonition that the jury disregard the improper
argument.”].)
In any event, Hernandez’s argument lacks merit. The
prosecutor’s actions did not amount to “a pattern of conduct so
egregious that it infect[ed] the trial with such unfairness as to
make the conviction a denial of due process” under the federal
constitution. (People v. Gray (2005) 37 Cal.4th 168, 215, internal
quotation marks and citation omitted; see People v. Barrett,
supra, 17 Cal.5th at p. 985; People v. Hoyt (2020) 8 Cal.5th 892,
943.) Before the prosecutor asked the questions Hernandez
6
argues were improper, the court instructed Hernandez to limit
his responses to answering the questions counsel asked him. The
court also warned Hernandez that unsolicited statements could
expand the scope of questions the prosecutor could ask him.
During cross-examination Hernandez expressed hostility
toward the prosecutor, stating he did not like her and resented
being on trial. Though Hernandez asserts the prosecutor’s line of
questioning was irrelevant, it was relevant to his credibility,
demeanor, biases, and attitudes about testifying and the charges
against him. (See People v. Barrett, supra, 17 Cal.5th at p. 985
[“‘[t]he permissible scope of cross-examination of a defendant is
generally broad’”]; People v. Merriman (2014) 60 Cal.4th 1, 84
[jury may consider “the witness’s ‘demeanor while testifying and
the manner in which’ the witness testified” and “the witness’s
‘attitude toward the action’ or ‘toward the giving of testimony’”];
People v. DeHoyos (2013) 57 Cal.4th 79, 123 [“prosecutor may
properly cross-examine a witness to show bias, prejudice,
interest, hostility or friendship toward a party that would bear on
the question of the credibility of the witness”]; People v. Cooper
(1991) 53 Cal.3d 771, 822 [“Although a defendant cannot be
compelled to be a witness against himself, if he takes the stand
and makes a general denial of the crime with which he is
charged, the permissible scope of cross-examination is ‘very
wide.’”].) Where, as here, the “defendant does testify, all bets are
off,” and he “is subject to cross-examination just as any other
witness is.” (People v. Vega (2015) 236 Cal.App.4th 484, 497; see
People v. Saddler (1979) 24 Cal.3d 671, 679 [“when a defendant
‘takes the stand and makes a general denial of the crime with
which he is charged the permissible scope of cross-examination is
very wide’”].) The prosecutor’s brief questioning about
7
Hernandez’s view of the case against him and attitude toward the
prosecution was not misconduct.
Hernandez’s reliance on People v. Johnson (2003)
109 Cal.App.4th 1230 is misplaced. In Johnson the prosecutor
repeatedly asked inflammatory, argumentative questions (to
which the trial court sustained objections), such as, “‘Sir, are you
going to pick and choose what you feel like telling us today and
what you don’t [feel] like telling us?’” and “‘This guy [the victim]
was there to pick up his child. Why did you have to kill him?’”
(Id. at p. 1235.) Nothing like that occurred here. The
prosecutor’s brief inquiry about whether Hernandez disliked her
was relatively mild, was directly responsive to Hernandez’s prior
statements, and did not suggest Hernandez committed the
charged offenses. (See People v. Armstrong (2019) 6 Cal.5th 735,
796 [“[e]ffective and legitimate cross-examination may involve
assertive and even harsh questioning,” and “[s]imply because an
examination is confrontational does not make it argumentative”];
People v. Fernandez, supra, 216 Cal.App.4th at p. 563 [brief,
isolated, or mildly disparaging remarks do not rise to the level of
prosecutorial misconduct].)
Finally, even if the prosecutor committed misconduct by
asking Hernandez argumentative or irrelevant questions, any
such misconduct was harmless. (See People v. Barrett, supra,
17 Cal.5th at p. 1025 [“‘A defendant’s conviction will not be
reversed for prosecutorial misconduct . . . unless it is reasonably
probable that a result more favorable to the defendant would
have been reached without the misconduct.’”]; People v. Parker
(2022) 13 Cal.5th 1, 71 [same].) The evidence of Hernandez’s
guilt was overwhelming. All three victims testified and identified
Hernandez as their attacker. DNA evidence recovered from the
8
assault on Ximena linked Hernandez to the crime. Jazmine’s
neighbor identified Hernandez as the man fleeing her apartment.
Hernandez’s wife confirmed Hernandez was the individual in the
surveillance video she saw on local news coverage of the
incidents, and she gave the police the clothing and hat
Hernandez was wearing in the video. It is not reasonably
probable that the prosecutor’s brief questions about how
Hernandez’s views about the prosecution and the prosecutor had
any effect on the jury’s verdicts.
B. The Trial Court Did Not Err in Sentencing
Hernandez as a Second Strike Offender
Hernandez argues the trial court abused its discretion in
not striking his prior serious or violent felony conviction and
sentencing him under the three strikes law. Hernandez,
however, never moved to strike his prior conviction, thus
forfeiting the argument. In any event, the trial court acted well
within its discretion in sentencing Hernandez.
1. Relevant Proceedings
In 1978 Hernandez was convicted of kidnapping for ransom
(§ 209, subd. (a).) He was sentenced to life in prison with the
possibility of parole. The probation report indicates he had three
violations while in prison: assault with a deadly weapon by a
person serving a life sentence (in 1983), possessing a weapon
while confined in a penal institution (in 1984), and again assault
with a deadly weapon by a person serving a life sentence (in
1987). On August 21, 2018 Hernandez was released on parole,
and on March 20, 2021 he was discharged from parole.
9
As stated, the trial court sentenced Hernandez as a second
strike offender in this case because of his prior serious or violent
felony conviction. Hernandez did not move under section 1385 or
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)
to strike his prior conviction.
2. Hernandez Forfeited His Argument
Hernandez argues the trial court erred in declining to
strike his prior serious or violent felony conviction. As
Hernandez concedes, however, he did not move to strike that
conviction and forfeited the argument on appeal. (See People v.
Carmony (2004) 33 Cal.4th 367, 376 (Carmony) [defendant’s
failure “to invite the court to dismiss under section 1385 following
Romero waives or forfeits his or her right to raise the issue on
appeal”]; People v. Grandberry (2026) 118 Cal.App.5th 14, 19
[“‘“[a] party in a criminal case may not, on appeal, raise ‘claims
involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices’ if the party did not object to
the sentence at trial”’”].)
Hernandez seeks to avoid forfeiture by arguing his trial
counsel, by not moving to strike his prior serious or violent felony
conviction, provided ineffective assistance of counsel.
A defendant may not “automatically transform a forfeited claim
into a cognizable one merely by asserting ineffective assistance of
counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14;
accord, People v. Brannon-Thompson (2024) 104 Cal.App.5th 455,
465.) “Rather, ‘[t]o establish constitutionally inadequate
representation, a defendant must demonstrate that (1) counsel’s
representation was deficient, i.e., it fell below an objective
standard of reasonableness under prevailing professional norms;
10
and (2) counsel’s representation subjected the defendant to
prejudice, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant.’” (Brannon-Thompson, at p. 465; see Strickland v.
Washington (1984) 466 U.S. 668, 687; People v. Aguirre (2025)
18 Cal.5th 629, 679.) We presume that counsel acted within
professional norms and that any omission was a strategic choice.
(People v. Centeno (2014) 60 Cal.4th 659, 674; People v.
Planchard (2025) 109 Cal.App.5th 157, 172.) “When the record
on direct appeal sheds no light on why trial counsel failed to act
in the manner challenged, the defendant must show there was no
conceivable tactical purpose for counsel’s act or omission.”
(Planchard, at p. 172; see People v. Jasso (2025) 17 Cal.5th 646,
676.)
Hernandez has not met his burden to show his trial counsel
provided ineffective assistance of counsel. Hernandez does not
argue his trial counsel’s performance fell below professional
norms, nor does he argue there was a reasonable probability the
court would have granted a motion to strike his serious or violent
felony conviction had his attorney made such a motion.
Hernandez merely asserts that asking the court to strike the
prior “could only have helped” and that “[t]here could be no
rational tactical purpose for the omission.” That’s not sufficient.
(See People v. Williams (1997) 16 Cal.4th 153, 206 [“Points
‘perfunctorily asserted without argument in support’ are not
properly raised.”]; People v. Freeman (1994) 8 Cal.4th 450, 482,
fn. 2 [“We discuss those arguments that are sufficiently
developed to be cognizable.”]; People v. Hardy (1992) 2 Cal.4th 86,
150 [defendant forfeited an argument by failing to “expand on the
issue with either argument or citation to relevant authority”];
11
People v. Dauterman (2024) 104 Cal.App.5th 603, 609 [“it is the
appellant’s burden to demonstrate, based on the appellate record
and with meaningful legal analysis supported by citations to
authority, that the trial court committed reversible error”].).
While the trial court applied the three strikes law to double one
of Hernandez’s determinate sentences, and to double the
minimum parole eligibility on one of his indeterminate sentences,
Hernandez does not argue these sentencing choices constituted
prejudice under Strickland v. Washington, supra, 466 U.S. 668.2
3. Forfeiture Aside, the Trial Court Did Not Err
in Sentencing Hernandez as a Second Strike
Offender
The trial court has discretion under section 1385,
subdivision (a), to dismiss “in furtherance of justice . . .
allegations or findings that a defendant has previously been
convicted of a serious and/or violent felony that would otherwise
count as a ‘strike’ under the three strikes law. (People v. Dain
(2025) 18 Cal.5th 246, 252; see People v. Shaw (2025) 18 Cal.5th
1089, 1097 [under Romero “a trial court may dismiss a strike
allegation or finding in the interests of justice”].) “‘[I]n ruling
whether to strike or vacate a prior serious and/or violent felony
2 Hernandez also suggests in one sentence it may have been
futile for his trial counsel to ask the court to strike his prior
conviction. Hernandez, however, does not cite anything in the
record to support his suggestion that making the motion would
have been futile. (See People v. Aguirre, supra, 18 Cal.5th at
p. 706 [defendant claiming it would have been futile for his trial
counsel to object “‘must find support for his or her claim in the
record’”]; People v. Nadey, supra, 16 Cal.5th at p. 185 [same].)
12
conviction allegation or finding under the Three Strikes law, on
its own motion, “in furtherance of justice” pursuant to . . .
[section 1385, subdivision (a),] or in reviewing such a ruling, the
court in question must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.’” (Dain, at pp. 256-257; see
People v. Salazar (2023) 15 Cal.5th 416, 428; Carmony, supra,
33 Cal.4th at p. 377.) “Thus, the Three Strikes law establishes a
‘strong presumption’ in favor of a harsher sentence and requires
the court to explicitly articulate its reasoning if it is to depart
from a harsher sentence by granting the Romero motion.”
(Salazar, at p. 428; see Carmony, at p. 378.)
A court’s “failure to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of
discretion standard.” (Carmony, supra, 33 Cal.4th at p. 374;
accord, People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093; People
v. Mendoza (2022) 74 Cal.App.5th 843, 856.) A court “will only
abuse its discretion in failing to strike a prior felony conviction
allegation in limited circumstances,” such as “where the trial
court was not ‘aware of its discretion’ to dismiss [citation],” or
“where the court considered impermissible factors in declining to
dismiss.” (Carmony, at p. 378; accord, People v. Nunez (2023)
97 Cal.App.5th 362, 371.) “Where the record is silent [citation],
or ‘[w]here the record demonstrates that the trial court balanced
the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial
13
court’s ruling, even if we might have ruled differently in the first
instance.’” (Carmony, at p. 378; accord, People v. Brugman (2021)
62 Cal.App.5th 608, 637.)
Hernandez argues the trial court erred in sentencing him
under the three strikes law because his prior serious or violent
felony conviction, which was 46 years ago in 1978, was too
remote. True, 46 years is a long time ago. But the “remoteness
of a prior conviction, ‘by itself cannot be the basis for dismissing a
prior strike conviction.’” (People v. Dowdy (2024) 107 Cal.App.5th
1, 12; see People v. Avila (2020) 57 Cal.App.5th 1134, 1141
[“remoteness of prior strikes alone is not sufficient to take a
defendant out of the spirit of the Three Strikes law”]; see, e.g.,
People v. Solis (2015) 232 Cal.App.4th 1108, 1124-25 [trial court
did not abuse its discretion in declining to strike a prior
conviction merely because it was 30 years old].) And Hernandez
was in prison for 40 of those years (from 1978 to 2018). (See
People v. Beasley (2022) 81 Cal.App.5th 495, 501 [“‘In analyzing
whether a defendant’s prior criminal conduct was “remote,” a
trial court should consider whether the defendant “was
incarcerated a substantial part of the intervening time and thus
had little or no opportunity to commit” additional crimes.’”];
People v. Vasquez (2021) 72 Cal.App.5th 374, 390 [same].) While
in prison, Hernandez had several serious rules violations,
including assault and the possession of a weapon. He was
released on parole in August 2018, discharged from parole in
March 2021, and committed his current offenses in the fall of
2022. Hernandez was not outside the spirit of the three strikes
law. (See Vasquez, at p. 390 [prior conviction was not too remote
where the defendant has not shown a prolonged period of a crime
free life in the interim].)
14
Moreover, rather “than simply calculating the number of
years that have passed since the prior strikes, sentencing courts
are to consider whether the defendant’s prior strike convictions
served ‘as a pivot point for reforming his ways.’” (People v.
Vasquez, supra, 72 Cal.App.5th at p. 390; accord, People v.
Mayfield (2020) 50 Cal.App.5th 1096, 1107-1108.) Hernandez’s
prior conviction for kidnapping involved violence against women.
So did his current crimes. The passage of time did not change
Hernandez: He was still committing violent crimes against
women.3
People v. Dryden (2021) 60 Cal.App.5th 1007, cited by
Hernandez, is distinguishable. In Dryden the defendant
presented evidence of mitigating circumstances, including of a
“violent and abusive upbringing” and a “history of homelessness,
mental health issues, and alcoholism [that] most likely
contributed to his actions.” (Id. at pp. 1030-1031.) Hernandez
did not present any evidence of mitigating circumstances.
C. The Trial Court Did Not Err in Sentencing
Hernandez to the Upper Term on His Conviction for
Assault with Intent To Commit Rape
Section 1170, subdivision (b)(6), requires the court (“unless
the court finds that the aggravating circumstances outweigh the
mitigating circumstances”) to impose the lower term if any of
3 Hernandez also argues that, because he is now 66 years
old, “the sentence as it stands would mean he never leaves
prison.” However, “age, considered alone, does not remove a
defendant from the spirit of the Three Strikes law.” (People v.
Vasquez (2021) 72 Cal.App.5th 374, 391; accord, People v. Strong
(2001) 87 Cal.App.4th 328, 345, disapproved on another ground
in People v. Dain, supra, 18 Cal.5th 246 at p. 265, fn. 5.)
15
three factors contributed to the commission of the offense: the
defendant has experienced psychological, physical, or childhood
trauma; the defendant is a youth, as defined in section 1016.7; or
the defendant was a victim of intimate partner violence or human
trafficking. Section 1170, subdivision (b)(7), provides that, even
in the absence of the three factors in section 1170,
subdivision (b)(6), the court still has discretion to impose the
lower term. (See People v. Gerson (2022) 80 Cal.App.5th 1067,
1096 [“even if the trial court were to find no evidence that the
circumstances listed in subdivision (b)(6) are present, it
nonetheless retains discretion to impose the lower term”].)
Hernandez argues that, though none of the factors in
section 1170, subdivision (b)(6), applied, the trial court erred in
sentencing Hernandez to the upper term (he admitted several
aggravating factors) on one of his convictions for assault with the
intent to commit rape. Hernandez contends “the trial court
appeared unaware that it could have sentenced” him to the lower
term under section 1170, subdivision (b)(7), “even if there were no
circumstances identified in” section 1170, subdivision (b)(6).
1. Applicable Law and Standard of Review
The trial court may not impose the upper term unless
aggravating circumstances justify imposing such a term and the
People prove the facts underlying those circumstances beyond a
reasonable doubt to the jury or to the judge in a court trial or the
defendant stipulates to the aggravating circumstances. (§ 1170,
subd. (b)(2); People v. Wiley (2025) 17 Cal.5th at 1069, 1084;
People v. Lynch (2024) 16 Cal.5th 730, 742.) “We presume the
court knows and applies the applicable law, absent evidence to
the contrary.” (People v. Nielsen (2026) 119 Cal.App.5th 816,
16
823.) The burden is on the party challenging the sentence “to
show the court misunderstood its sentencing authority.” (Ibid.;
see People v. Fredrickson (2023) 90 Cal.App.5th 984, 988.)
“[C]omplaints about the manner in which the trial court exercises
its sentencing discretion and articulates its supporting reasons
cannot be raised for the first time on appeal.” (People v. Scott
(1994) 9 Cal.4th 331, 356.)
2. The Trial Court Did Not Err in Imposing
the Upper Term
As preliminary matter, Hernandez admittedly did not
object when the trial court imposed the upper term sentence on
count 2. Therefore, he forfeited the argument. (See People v.
Scott, supra, 9 Cal.4th at pp. 351-354; People v. Tilley (2023)
92 Cal.App.5th 772, 778.)
Forfeiture aside, nothing in the record suggests the trial
court misunderstood it had discretion to impose the lower term.
In general, the “trial court is presumed to have been aware of”
and followed “the applicable law.” (People v. Stowell (2003)
31 Cal.4th 1107, 1114; accord, People v. Tilley, supra,
92 Cal.App.5th at p. 780.) At the sentencing hearing the court
invited Hernandez and his attorney to present any additional
information relevant to sentencing. Hernandez offered no
mitigating evidence. Instead, he delivered an extended
statement accusing the Los Angeles Police Department and the
prosecutor of fabricating the case, asserting the victims were told
to lie, and claiming the entire trial was a conspiracy against him.
He stated, “I know the D.A., the L.A.P.D . . . . They’ve been doing
this for quite some time . . . . And I know her and the board of
prison terms are involved in so many murders in prison, they
17
should be prosecuted . . . and I know the L.A.P.D is crooked.”
Hernandez stated, “So all this is a lie right here. And they used
my background, criminal history, to put me on the news and call
me a predator, tell my wife that I’m a rapist, a predator . . . just
to try to get her scared so they can use her evidence to turn
against me . . . when really . . . I didn’t even know nothing about
this.”
In sentencing Hernandez, the court cited his predatory
conduct, the testimony of the three victims, the DNA evidence
linking Hernandez to Ximena’s assault, the video of his attack on
Ximena, surveillance video from Jazmine’s apartment building
showing Hernandez following her down the street, Hernandez’s
admissions (including his past criminal history), and the
probation report. Nothing in the record indicates that the trial
court was unaware of its sentencing discretion or that the court
considered improper factors.
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
18