People v. Hernandez CA5

INTRODUCTION

Appellant Pedro Torres Hernandez was resentenced under Penal Code section 1172.75,1 which resulted in a sentence that was lengthier than the original. Appellant appeals claiming his sentence is unauthorized and violates section 1172.75, subdivision (d)(1), prohibiting courts from imposing a longer sentence than the one originally imposed. Appellant also claims the court erred when it reimposed upper terms on two counts based on factors not found true by a jury or stipulated to by appellant. The People concede appellant’s sentence is unauthorized but contend appellant’s second claim is moot. We agree with the People on both points. We vacate the sentence and remand the matter for the trial court to resentence appellant under section 1172.75, directing the court to comply with subdivision (d). In all other respects, we affirm the judgment.

PROCEDURAL SUMMARY

In 2015, appellant was convicted by court trial of assault on a peace officer by means of force likely to cause great bodily injury (§ 245, subd. (c), counts 1 & 2); resisting an executive officer with force (§ 69, count 3); assault with a deadly weapon (§ 245, subd. (a)(1), count 4); and domestic violence (§…