Third District Court of Appeal
State of Florida
Opinion filed September 15, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1738
Lower Tribunal No. F21-6596
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Sarah Hernandez,
Petitioner,
vs.
Daniel Junior, etc., et al.,
Respondents.
A Case of Original Jurisdiction – Habeas Corpus.
Avelino J. Gonzalez, P.A., and Mario A. Machado, for petitioner.
Ashley Moody, Attorney General, and Kayla Heather McNab,
Assistant Attorney General, for respondent The State of Florida.
Before MILLER, LOBREE and BOKOR, JJ.
BOKOR, J.
In this habeas corpus petition, Sarah Hernandez contends she is
being held illegally based on the trial court’s failure to set reasonable bond
on the charge of human trafficking pursuant to section 787.06(3)(g), Florida
Statutes. 1 Specifically, Hernandez is charged with human trafficking based
1
Hernandez was granted bond on the other three counts for which she was
charged. The trial court found no bond appropriate for the human
trafficking charge, which is the focus of this opinion. To the extent the
petition seeks a reduction in the amount of bond for the other three charges
for which the trial court set bond, we find such argument without merit.
The specific provision of the statute for which Hernandez is charged states:
(3) Any person who knowingly, or in reckless disregard of the
facts, engages in human trafficking, or attempts to engage in
human trafficking, or benefits financially by receiving anything
of value from participation in a venture that has subjected a
person to human trafficking:
[. . .]
(g) For commercial sexual activity in which any child younger
than 18 years of age or an adult believed by the person to be a
child younger than 18 years of age, or in which any person who
is mentally defective or mentally incapacitated as those terms
are defined in s. 794.011(1), is involved commits a life felony,
punishable as provided in s. 775.082(3)(a)6., s. 775.083, or s.
775.084.
§ 787.06(3)(g), Fla. Stat. Section 787.06 also provides the following
relevant definitions:
(2)(b): “Commercial sexual activity” means any violation of
chapter 796 or an attempt to commit any such offense, and
includes sexually explicit performances and the production of
pornography.
[. . .]
2
on the allegation that she and the 17-year-old victim “were seen dancing
erotically” in a video available for sale and viewing, which video “was filmed
at the direction of [Hernandez] and with the intention to profit from the
sales.”2 Hernandez moved for reasonable bond on the trafficking charge,
which the trial court considered during an Arthur hearing. 3 The trial court
denied bond on the human trafficking charge, finding that there were no
conditions that would assuage the court’s concerns regarding protecting
the community, and particularly the victim, from possible communication or
contact from Hernandez. We review the trial judge’s findings under an
abuse of discretion standard.
(2)(d): “Human trafficking” means transporting, soliciting,
recruiting, harboring, providing, enticing, maintaining,
purchasing, patronizing, procuring, or obtaining another person
for the purpose of exploitation of that person.
2
The arrest affidavit also claims, and hearing testimony reflects, that the
victim profited from the video sales and that Hernandez invited the victim to
“multiple private parties and bars where she danced and stripped for
money. The victim said she purchased drugs from [Hernandez] numerous
times and took them in her presence.”
3
Human trafficking is an offense punishable by life. Accordingly, the trial
court conducted a hearing pursuant to State v. Arthur,
390 So. 2d 717 (Fla.
1980), to consider (1) if the State’s evidence rises to the standard of proof
evident, presumption great and if so, (2) whether there are conditions that
can protect the community and ensure Hernandez’s appearance in court.
While Hernandez does not concede proof evident and presumption great
(the first prong of the Arthur hearing), the petition focuses on the second
prong of the Arthur hearing, whether there are reasonable conditions to
protect the community and ensure Hernandez’s appearance.
3
The trial court found that no conditions of release could reasonably
protect the community (or the victim) from risk of harm. Specifically, the
trial court was concerned that if Hernandez wanted to, it may be difficult to
prevent contact between Hernandez and the victim through the telephone
or other electronic means. The problem with this concern is that, without
more, it could apply to prevent bail in any case. There is no indication, and
the State has not argued or offered evidence, that Hernandez poses a
special, heightened, or in any way particularized risk of offending by trying
to reach the victim.
The State did not meet its burden in showing that there are no
conditions that could reasonably protect the community. At the
combination Arthur/pretrial release hearing, the State presented the
detective who signed the arrest affidavit. The State, however, offered no
evidence of dangerousness that could reasonably preclude pretrial release
subject to appropriate conditions. The State presented argument that
because of Hernandez’s prior friendship with the victim, she presented a
special risk of contacting the victim. This is conclusory and not supported
by the record. Instead, the facts and circumstances support bond and
sufficient conditions of pretrial release—including, for example,
Hernandez’s lifelong connections to the area, her lack of history of related
4
incidents, and the lack of testimony that she tried to contact the victim after
being charged. There is also no indication in the record that Hernandez
forced, coerced, or otherwise pressured the victim to engage in the
charged act. Nor does the record contain any evidence that Hernandez
engaged in threats or any menacing behavior directed to the victim. The
record reflects the victim posted the offending video on her social media
and collected a portion of the profits.
While human trafficking is a serious charge, the statute covers a wide
range of activities, such that an understanding of the specific facts of the
case is necessary to appreciate the dangerousness to the community and
the reasonableness of any findings pertaining thereto. Tellingly, as it
pertains to dangerousness, the lead detective presented by the State, in
response to the State’s questioning at the Arthur hearing, indicated that
Hernandez was no longer contacting the victim and no longer assisted or
facilitated the shows or performances:
Q. And when you interviewed the victim, did she confirm that
the defendant [Hernandez] had ended this relationship of
organizing work for the victim.
A. She was essentially, on her own after that.
Accordingly, we grant the petition for writ of habeas corpus and remand to
the trial court. The court shall immediately conduct a hearing to determine
5
appropriate bond and conditions of release for the human trafficking count. 4
Hernandez shall remain in custody pending the determination of, and
compliance with, the bond amount and other relevant conditions of pretrial
release.
This opinion shall take effect immediately notwithstanding the filing or
disposition of any motion for rehearing.
4
Hernandez proposes a bond amount and conditions of release in her
petition. We decline to adopt or endorse any specific amount or conditions.
We are confident the trial court can craft a reasonable bond for this count
as well as any additional reasonable conditions, such as, for example,
surrendering passport, home confinement except for church, school,
lawyers/court, and doctors, GPS monitoring, restriction of electronic
devices, allowing access to smartphones, etc. The trial court may
consider, to the extent relevant, the conditions of release ordered in State
v. Cuesta, F-21-001515-B (Fla. 11th Jud. Cir. Ct.). Roberto V. Cuesta was
charged with crimes involving the same victim. Cuesta, like Hernandez,
was also charged with human trafficking and unlawful use of a
communications device. But, unlike Hernandez, Cuesta was also charged
with unlawful sexual activity with the minor victim. The court set bond and
conditions of release in Cuesta on the human trafficking count which
included electronic monitoring.
6
