People v. Nevarez CA5 ( 2015 )


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  • Filed 12/15/15 P. v. Nevarez CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    FIFTH APPELLATE DISTRICT
    THE PEOPLE,
    F069468
    Plaintiff and Respondent,
    (Fresno Super. Ct. No. 13907323)
    v.
    MANUEL LEON NEVAREZ,                                                                     OPINION
    Defendant and Appellant.
    THE COURT*
    APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
    Judge.
    Rex A. Williams, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Office of the Attorney General, Sacramento, California, for Plaintiff and
    Respondent.
    -ooOoo-
    *   Before Poochigian, Acting P.J., Franson, J. and Peña, J.
    INTRODUCTION
    Appellant Manuel Leon Nevarez pled no contest to one count of driving while
    under the influence and causing bodily injury (Veh. Code, § 23153, subd. (b)) and
    admitted personally causing great bodily injury (Pen. Code, § 12022.7, subd. (a)).1 The
    plea agreement specified a three year maximum term of imprisonment. The trial court
    sentenced Nevarez to a total term of three years in prison. Nevarez filed an appeal and
    requested a certificate of probable cause, which was granted. Appellate counsel filed a
    brief pursuant to People v. Wende (1979) 
    25 Cal. 3d 436
    . We affirm.
    FACTUAL AND PROCEDURAL SUMMARY
    On July 18, 2013, Nevarez was driving his Tacoma pickup truck with a blood-
    alcohol level of 0.14 percent when he struck a five-year-old boy riding a bicycle, causing
    multiple pelvic fractures. Nevarez admitted drinking two 30-ounce beers, and one 24-
    ounce beer prior to driving. Nevarez’s passenger stated she knew Nevarez was “drunk”
    and had tried to stop him from driving, but he insisted.
    Witnesses at the scene reported hearing a “loud crash” and seeing Nevarez run
    over the boy with the right-side wheels of his truck. It appeared to multiple witnesses as
    though Nevarez was not planning to stop because the truck kept going after impact. One
    witness jumped forward waving for Nevarez to stop; another witness reached inside and
    removed the keys from the truck’s ignition.
    On August 2, 2013, Nevarez was charged with two felony counts. Count 1
    charged a violation of Vehicle Code section 23153, subdivision (b); count 2 charged a
    violation of subdivision (a) of that same code section. It also was alleged that Nevarez
    personally inflicted great bodily injury within the meaning of section 12022.7,
    1 All further references to code sections are to the Penal Code unless otherwise
    specified.
    2.
    subdivision (a). The public defender was appointed to represent Nevarez, who pled not
    guilty to all charges.
    On October 29, 2013, Nevarez entered into a negotiated disposition. The plea
    agreement provided that Nevarez plead no contest to the charge of violating Vehicle
    Code section 23153, subdivision (b) and the section 12022.7, subdivision (a)
    enhancement, in exchange for dismissal of the other count and a maximum “lid” of three
    years in state prison.
    At the October 29 hearing, the trial court verified that Nevarez had read and
    reviewed the change of plea form with the assistance of his lawyer and the interpreter.
    Nevarez indicated he understood the terms and conditions of the plea, and defense
    counsel affirmatively stated that he believed Nevarez understood the terms and
    conditions.
    The trial court reviewed Nevarez’s constitutional rights and Nevarez affirmatively
    waived those rights. The trial court also reviewed the immigration consequences of the
    plea and notified Nevarez that the plea would constitute a strike offense for purposes of
    the “Three Strikes” law and explained the future consequences of a plea to a strike
    offense; Nevarez acknowledged that he understood the consequences and had discussed
    the consequences with defense counsel.
    At this point, the trial court notified Nevarez that the plea to the great bodily injury
    enhancement would make Nevarez statutorily ineligible for probation unless the trial
    court found unusual circumstances. The trial court wanted Nevarez to understand that
    “the presumption is that on this plea you would be sentenced to state prison.” Nevarez
    was then asked if he understood this, and he responded affirmatively.
    The trial court then proceeded to accept Nevarez’s plea to the offense and his
    admission to the enhancement. The trial court found that “this plea is freely and
    voluntarily entered and that [Nevarez] has knowingly, intelligently, and expressly waived
    all of his statutory and constitutional rights.”
    3.
    The probation report noted that the victim presently was in a wheelchair because
    of the pelvic fractures and would be starting physical therapy. Nevarez was clinically
    assessed to evaluate his alcohol use and amenability to treatment, and the assessment was
    included in the probation report. Nevarez had a “problematic pattern” of alcohol use
    “leading to clinically significant impairment” and “indicated a lack of insight on
    addiction.” Nevarez was diagnosed as having moderate alcohol abuse disorder.
    The probation officer noted that Nevarez did not have a prior criminal record, but
    denial of probation was recommended because Nevarez “was unwilling to admit his
    actions of drinking or driving are problematic.” The probation officer opined that
    Nevarez was a risk to the community “since he is not prepared to address his reckless
    behavior.” The probation report recommended imposition of the middle term of two
    years for the offense, plus a three-year consecutive term for the enhancement, for a total
    term of imprisonment of five years.
    The sentencing hearing was held on April 30, 2014. Prior to imposing sentence,
    the trial court stated that it had considered the probation report, letters from Nevarez, a
    letter from the Crime Victim Assistance Center, the diagnostic report, and the mitigation
    statement filed by the defense. There was a lengthy discussion and argument regarding
    victim restitution.
    The trial court stated its indicated sentence was to deny probation; impose the
    aggravated term of three years for the offense; and strike the punishment for the
    enhancement, as this factor was used as a factor in aggravation. The parties proceeded to
    argue their positions, with the defense urging a grant of probation and the People
    supporting the indicated sentence.
    After hearing argument from both parties, the trial court proceeded to articulate
    the reasons for its sentence and proceeded to impose sentence. The trial court denied
    probation; imposed the aggravated term of three years for the substantive offense; struck
    the punishment for the enhancement, ordered victim restitution in the amount of
    4.
    $22,327.92; awarded 294 days of credit; and imposed various other fines and fees. The
    abstract of judgment that was filed, however, reflected an aggregate term of six years;
    three for the substantive offense and three for the enhancement.
    A notice of appeal was filed May 22, 2014 and a certificate of probable cause was
    granted on May 28. On August 4, 2014, appellate counsel was appointed to represent
    Nevarez in this appeal. On September 4, 2014, appellate counsel notified the trial court
    of the error in the abstract of judgment and requested a corrected abstract be prepared and
    filed. On October 8, 2014, a corrected abstract was filed and disseminated to the
    appropriate authorities.
    Appellate counsel filed a Wende brief on December 4, 2014. That same day, this
    court issued its letter notifying Nevarez he had the right to file a supplemental brief. No
    supplemental brief was filed.
    DISCUSSION
    After securing a corrected abstract of judgement, appellate counsel filed a Wende
    brief; Nevarez did not file a supplemental brief. In requesting a certificate of probable
    cause, Nevarez alleged that the trial court failed to properly weigh and consider
    sentencing factors; failed to follow the probation report recommendation for the
    mitigated term; abused its discretion in denying probation and imposing the aggravated
    term; and failed to consider the holding of Paroline v. United States (2014) ___ U.S. ___,
    
    134 S. Ct. 1710
    in imposing restitution.
    A trial court has broad discretion in weighing sentencing factors. (People v. Evans
    (1983) 
    141 Cal. App. 3d 1019
    , 1022.) On appeal, we do not reweigh the sentencing
    factors. (People v. Carmony (2004) 
    33 Cal. 4th 367
    , 379.) We review sentencing
    decisions under a deferential abuse of discretion standard. (People v. Sandoval (2007) 
    41 Cal. 4th 825
    , 847.)
    Nevarez had been told when he entered his no contest plea that “the presumption
    is that on this plea you would be sentenced to state prison.” Nevarez was then asked if he
    5.
    understood this and he responded affirmatively. There is no abuse of discretion in the
    trial court’s denial of probation. (People v. 
    Sandoval, supra
    , 41 Cal.4th at p. 847.)
    Additionally, here the probation officer recommended the mitigated term of two
    years with an additional three years for the enhancement, a total term of five years. The
    trial court instead imposed a sentence of three years in prison, which conformed to the
    plea agreement, by striking the imposition of punishment for the enhancement and using
    that as a factor in aggravation. A trial court has broad discretion in weighing sentencing
    factors. (People v. 
    Evans, supra
    , 141 Cal.App.3d at p. 1022.) We do not reweigh the
    sentencing factors. (People v. 
    Carmony, supra
    , 33 Cal.4th at p. 379.)
    As for the failure to consider the holding of Paroline v. United 
    States, supra
    , 
    134 S. Ct. 1710
    in setting restitution, Nevarez failed to explain how this case is applicable. In
    Paroline, the U.S. Supreme Court addressed federal restitution statutes as they applied to
    child pornography cases. (Id. at pp. 1718–1719.) The U.S. Supreme Court concluded
    that the victim’s losses had to be proximately caused by the defendant. (Id. at pp. 1721–
    1722.)
    If Nevarez is contending that the victim’s losses were not proximately caused by
    his actions, we emphatically reject that contention as unsupported by the record. The
    victim restitution represents medical bills for the victim and lost wages for the family
    member caring for the victim while the child recovered.
    In sum, Nevarez was sentenced in accordance with his plea agreement and the
    record does not disclose any abuse of discretion by the trial court. After an independent
    review of the record, we find no reasonably arguable factual or legal issue exists.
    DISPOSITION
    The judgment is affirmed.
    6.
    

Document Info

Docket Number: F069468

Filed Date: 12/15/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021