People v. Hernandez CA2/7

Opinion

Filed 9/9/26 P. v. Hernandez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.