People v. Fernandez CA4/2

I.

INTRODUCTION

1 Defendant and appellant Jose Felipe Hernandez appeals from his Penal Code

section 1172.75 resentencing. He asserts the matter must be remanded, as the trial court

should have performed a full resentencing with his presence rather than simply striking

his no longer valid one-year prior prison term enhancement. The People concede the

error. We will remand for a full resentencing pursuant to section 1172.75.

II.

BACKGROUND

In 2019, defendant pled guilty to one count of assault with a deadly weapon other

than a firearm (§ 245, subd. (a)(1); count 1) and possession of a weapon by a prison

inmate (§ 4502, subd. (a); count 2). In addition, defendant admitted that he had suffered

a prior prison term (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subd. (c),

(e), 1170.12). In return, defendant was sentenced to the indicated sentence of five years

in prison (two years each on counts 1 & 2, plus one year for the prior prison term

enhancement) to run consecutive to his incomplete sentence in case No. RIF1702653

with an aggregate sentence of 31 years, eight months.

1 All future references are to the Penal Code. 2 The substantive facts…