People v. Fuentes CA1/2 ( 2024 )

Filed 9/12/24 P. v. Fuentes CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent, A169955
v. (Sonoma County
ISRAEL FABIAN FUENTES, Super. Ct. No. SCR-736368-1)
Defendant and
Appellant.
Israel Fabian Fuentes was convicted of violating Penal Code
section 273.5, subdivision (a) [willful infliction of corporal injury resulting in
traumatic condition on person with whom he was in a dating relationship].
On appeal, we affirmed his convictions but vacated the sentence because
upper terms imposed by the trial court could not be sustained under post-
sentencing statutory amendments. This appeal is from the orders on
resentencing.
Fuentes’s appointed appellate counsel has filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende), in which he raises no issue
and asks this court for an independent review of the record. Counsel attests
that he advised Fuentes of his right to file a supplemental brief, and that this
court could choose to treat his appeal as abandoned pursuant to People v.
1
Delgadillo (2022) 14 Cal.5th 216 if he does not do so. Fuentes has not filed a
supplemental brief.
Having examined the entire record in accordance with Wende, we agree
with counsel that there are no arguable issues requiring further briefing and
affirm.
BACKGROUND
The facts underlying Fuentes’s conviction and probation violation were
related in our unpublished opinion on the appeal. (People v. Fuentes (Jan. 30,
2023, A162315) [nonpub. opn.].) Suffice to say that Fuentes inflicted
significant injuries on the mother of his child with the three year old present
in the house. Fuentes pleaded guilty to willful infliction of corporal injury on
a person with whom he had a dating relationship (Pen. Code,1 § 273.5) and
admitted an allegation of infliction of great bodily injury (§ 12022.7, subd. (e))
pursuant to a plea agreement calling for probation with a suspended eight-
year prison term. While released pending sentencing, he was found to have
violated a condition of his release and, in accordance with a provision of the
plea agreement stating that violation of a condition of release or certain other
conduct would result in unconditional sentencing (“Cruz waiver”2), he was
sentenced to a nine-year prison term consisting of aggravated terms on both
the conviction (four years) and the enhancement (five years).
Fuentes appealed, claiming the condition he was found to have violated
was unconstitutionally vague, the evidence did not support finding a violation
and postsentencing statutory amendments required a remand for
resentencing. We affirmed the trial court’s finding of the violation but agreed
that a remand for resentencing was required due to the postsentencing
1 Further statutory references will be to the Penal Code.
2 People v. Cruz (1988) 44 Cal.3d 1247.
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enactment of Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended
section 1170, subdivision (b), so as to preclude imposition of an upper term
sentence unless facts underlying the aggravating circumstances were
stipulated to by the defendant or found true beyond a reasonable doubt. We
remanded for resentencing in light of section 1170, subdivision (b), as
amended by Senate Bill No. 567 (2021-2022 Reg. Sess.).
On remand, the People argued for reimposition of the aggravated term
on the section 273.5 conviction while Fuentes sought a low term sentence
based on mitigating factors under section 1170, subdivision (b)(6).3 Fuentes
further argued that dismissal of the great bodily injury enhancement was
required by the Racial Justice Act of 2020 (§ 745) (RJA) and that the court
should exercise its discretion to dismiss the enhancement pursuant to
section 1385. The People maintained that Fuentes failed to make a prima
facie case of bias or animus within the meaning of section 745, there was no
violation of the RJA, and Fuentes was a danger to society.
3 Fuentes relied on section 1170, subdivision (b)(6)(A) which provides
that “unless the court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would be contrary
to the interests of justice, the court shall order imposition of the lower term if
any of the following was a contributing factor in the commission of the
offense: . . . The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.” He argued that he “struggle[d] with mental health issues”
including depression and “experienced frequent childhood trauma” including
being taken to a psychiatric facility without parental consent, where he was
“heavily sedated,” witnessing his father abuse his mother “mentally and
physically,” sometimes on a daily basis, and sexual abuse. He submitted
declarations from his sister and mother attesting to these experiences and
articles discussing studies showing an association between childhood
experience of domestic violence in the home and adult perpetration of or
victimization by domestic abuse.
3
At a January 31, 2024 hearing on the RJA issues, the trial court
suggested it did not need to determine whether Fuentes made a prima facie
case because his prior sentence had already been vacated, and asked if the
racial disparity data provided in Fuentes’s briefing was “just for me to
consider the existence of the Racial Justice Act in resentencing him.”
Agreeing that the procedural situation was “unusual,” defense counsel
explained that the issue had arisen because one of the factors to be
considered in deciding whether to dismiss the enhancement under
section 1385 is whether imposition of the enhancement would violate the
RJA. Counsel maintained it would be efficient to “address this all in a single
proceeding” rather than having the RJA issues raised again if the court
reimposed the original nine-year sentence and asked the court to “bear in
mind” the RJA data presented in the defense briefs. The court stated its
understanding that the defense was requesting it to “prospectively consider”
the information provided and be “mindful” of the RJA in considering
resentencing but was not expecting a finding as to whether its submission
met its burden under the RJA, and counsel responded that since there was no
sentence in effect to challenge, the court was “essentially correct.” The
court’s minutes indicate, “Racial Justice Act petition is moot.”
The sentencing hearing took place on February 16, 2024. After the
hearing the parties’ arguments regarding aggravating and mitigating
circumstances,4 the trial court stated that it was going to approach the
4 The People argued for an aggravated sentence based on the
“exceptionally vulnerable victim,” violence of the attack, severity of the
victim’s injuries, and history of refusing to adhere to the law and court orders
evidenced by Fuentes’s multiple prior convictions for driving under the
influence and driving with a suspended license, and multiple violations of
probation. The People argued the court could consider the severity of the
victim’s injuries because Fuentes admitted the great bodily injury
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matter differently, based on the original plea agreement. The court observed
that the plea agreement provided for an execution suspended eight-year
sentence, which the written agreement showed as four-year terms for both
the section 273.5 offense and the section 12022.7 enhancement and the
prosecutor had described at the plea hearing as “midterm on both.” As the
trial court pointed out, while four years is the middle term for the
enhancement (§ 12022.7, subd. (e)), the middle term for section 273.5 is three
years, and because the parties expressed the intent to specify a middle term
sentence as the maximum, that maximum would be seven years, not eight.
Observing that the prosecutor agreed to the middle term disposition with
knowledge of everything now being cited as support for an aggravated
sentence, the court stated its intention to impose the middle term sentence
based on the agreement previously entered. Regarding the RJA, the court
stated that after looking at the information provided by the defense, the
charges Fuentes was facing and the opportunity for probation he was given,
“it would be hard pressed to say that the People over charged him or that
they negotiated with him in some way that was disparate as to other people
because his initial outcome actually would have been much better than many
of those that [were] recited in the defense’s brief but for his own squandering
enhancement. Defense counsel argued that aside from a certified record of
conviction, the court could not impose an aggravated term based on
aggravating factors not found or admitted in accordance with current law and
could not rely on the severity of the victim’s injuries to impose an aggravated
term on the section 273.5 offense unless it struck the enhancement. Defense
counsel argued that mitigating factors supported a low term sentence and,
under the RJA, that the defense briefs showed Hispanic defendants are
disproportionately charged with this enhancement and in general receive
longer sentences. Counsel argued that Fuentes’s prior driving offenses were
misdemeanors, and that he had taken anger management classes, was trying
to get his high school diploma and had a plan for the future.
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of the opportunity to be on probation.” Accordingly, the trial court imposed a
total sentence of seven years, consisting of middle terms on the section 273.5
conviction (three years) and the section 12022.7 enhancement (four years).
Fuentes filed a timely notice of appeal.
DISCUSSION
Pursuant to Wende, we are required “to conduct a review of the entire
record whenever appointed counsel submits a brief which raises no specific
issues or describes the appeal as frivolous.” (Wende, supra, 25 Cal.3d at
p. 441; Anders v. California (1967) 386 U.S. 738.)
The trial court, on remand, essentially took a course it could have taken
when initially sentencing on Fuentes’s violation: The Cruz waiver allowed
the court to sentence unconditionally, as it did, but did not require the court
to depart from the sentence stipulated in the plea agreement. The middle
term sentences the court imposed on remand in accordance with its
understanding of the plea agreement eliminated the aggravated terms that
could not stand under the amended section 1170, subdivision (b)(6), resulting
in a sentence one year shorter than that contemplated by the plea agreement.
Fuentes did not object when the court stated its intention to sentence in
accordance with the original plea agreement rather than consider
aggravating and mitigating circumstances, thus forfeiting any issue as to the
court’s exercise of discretion. (People v. Scott (1994) 9 Cal.4th 331, 353.)
Our review of the record reveals no arguable issues requiring further
briefing.
DISPOSITION
The judgment is affirmed.
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STEWART, P. J.
We concur.
RICHMAN, J.
DESAUTELS, J.
People v. Fuentes (A169955)
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