People v. Hernandez CA4/1

I.

INTRODUCTION

A jury found Abel Hernandez guilty of 12 counts of lewd and lascivious acts upon

a child under 14 years of age (Pen. Code, § 288, subd. (a))1 (counts 1-12). The jury also

found that Hernandez engaged in substantial sexual conduct with the victim with respect

to counts 1 through 6 (§ 1203.066, subd. (a)(8)). The trial court denied probation and

sentenced Hernandez to an aggregate term of 30 years in prison. The court imposed the

upper term of eight years on count 1 (§ 288, subd. (a)), and consecutive (§ 669) two-year

terms on counts 2 through 12. The terms on counts 2 through 12 were each comprised of

one-third of the mid-term of six years (§ 288, subd. (a)), pursuant to section 1170.1,

subdivision (a).

On appeal, Hernandez claims that his sentence must be vacated and the matter

remanded for resentencing because the trial court: (1) committed an ex post facto

violation by relying on the 2006 version of section 1203.066 (Stats. 2005, ch. 477, § 5) to

conclude that he was ineligible for probation with respect to three counts (counts 1, 3,

and 5), because the People failed to establish the offenses occurred after January 1, 2006,

the effective date of…