People v. Hernandez CA4/1

INTRODUCTION

Jose De Jesus Hernandez was sentenced to serve a prison term of 30 years to life, consecutive to 8 years and 8 months, upon the jury finding him guilty of sexually abusing his stepdaughter and his two nieces, who were all then age 14 or younger. Hernandez does not challenge the sufficiency of the evidence supporting his convictions but he asserts two sentencing errors require his matter be remanded for resentencing. On the first asserted error, the Attorney General properly concedes the trial court imposed an unauthorized sentence of 15-years-to-life for

Hernandez’s conviction on count 4 of continuous sexual abuse (Pen. Code,1 § 288.5, subd. (a)). Section 288.5 was not yet a One Strike offense under section 667.61 at the time Hernandez committed that offense. Accordingly, we vacate the sentence on count 4 and remand the matter for resentencing consistent with our opinion. Under the full resentencing rule, the trial court is permitted to revisit all prior sentencing decisions under any new legislation enacted while this appeal was pending. For that reason, we do not reach the merits of Hernandez’s second asserted error that he is entitled to remand for resentencing…