People v. Hernandez CA1/1

Filed 2/8/21 P. v. Hernandez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ONE
PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A160317
v. (Marin County Super. Ct.
GUILLERMO ANDRE No. SC-205638A)
HERNANDEZ,
Defendant and Appellant.
Defendant Guillermo Andre Hernandez appeals from the trial court’s
imposition of a three-year prison term after Hernandez admitted to a
violation of probation. Hernandez’s appointed counsel filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues and
requesting that this court review the record and determine whether any
arguable issue exists on appeal. Having done so, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2018, the Marin County District Attorney filed an
information alleging that Hernandez had committed felony corporal injury on
1
a specified person, Jane Doe (Pen. Code,1 § 273.5, subd. (a), count one),
misdemeanor battery on Rene Peraza (§ 242, count two), and misdemeanor
violation of a court order to prevent domestic violence (§ 273.6, subd. (a),
count three). Count one included the special allegations that Hernandez
personally inflicted great bodily injury upon Jane Doe under circumstances
involving domestic violence (§ 12022.7, subdivision (e)) and on someone other
than an accomplice (§ 1192.7, subd. (c)(8)). Count one was further alleged to
be a serious felony and a violent felony within the meaning of sections 1192.7,
subdivision (c), and 1170.12, subdivisions (a) through (c).
The charges stemmed from an incident on July 25, 2018.2 On that
morning, Jane Doe—who had been in a dating relationship with Hernandez
for about eight months—was walking to meet Hernandez at his apartment
when he exited the building and approached, visibly angry. As soon as he got
close enough to Jane, Hernandez struck her with his right hand which was
covered in a hard cast. Jane screamed and ran towards a parking lot behind
the building. Rene Peraza, Hernandez’s older brother, heard the scream,
exited the apartment, saw Jane, and confronted Hernandez regarding what
had happened. The two struggled briefly and then Hernandez picked up a
clay brick and threw it at Rene. When the police arrived, Jane was bleeding
profusely from her broken and discolored nose and had swelling to her left
eye the size of a golf ball. She told the officer she believed Hernandez was
angry because she had failed to respond to his messages due to her phone
account lapsing. Several days later, Hernandez reportedly violated a court
order to refrain from committing domestic violence issued after his arrest.
1 Statutory references are to the Penal Code unless otherwise specified.
2Our recitation of pertinent facts is gleaned from the probation report
and the probation revocation petition in this matter.
2
On December 28, 2018, Hernandez pleaded guilty to all charges and
admitted the special allegations in return for a stipulated sentence of
probation. In advising Hernandez in advance of his plea, the trial court
stated that the maximum prison term with respect to count one was three
years. The plea form signed and initialed by Hernandez, in contrast, showed
a maximum prison term for count one of seven years. The court found
Hernandez’s admissions to be knowing, intelligent, and voluntary.
At sentencing on April 24, 2019, the trial court admonished Hernandez
that if he violated the terms of his probation the court would likely send him
to prison. Finding “unusual circumstances” in that Hernandez was young
and with no significant prior criminal record, the trial court suspended the
imposition of sentence and placed Hernandez on supervised probation for
three years under numerous terms and conditions, including that he not
contact or harass Jane Doe. In addition, Hernandez was sentenced to 210
days in county jail, with credit for 104 days. A ten-year court protective order
was filed and personally served on Hernandez in court.
On June 19, 2019—almost immediately after Hernandez’s release from
custody—a petition for revocation of probation was filed alleging that
Hernandez had violated the terms of his probation by contacting Jane Doe,
harassing her, and attempting to dissuade her from reporting his conduct to
the authorities. Jane reported that Hernandez contacted her repeatedly via
the direct message feature on Instagram and posted an old video of them
engaged in a sexual act on his Instagram page. She sent screen shots of the
messages and video to the supervising probation officer. One of the messages
from Hernandez stated: “please don’t snitch that we talkin please we can
start fresh past is past u solid . . . please don’t tell no one we talkin.”
3
Hernandez admitted the allegations in the petition on August 27, 2019,
and the trial court found that he had violated the terms of his probation.
Hernandez was placed at the Department of Corrections pursuant to section
1203.03 for a diagnostic evaluation and recommendation. The evaluation
filed in December 2019 recommended that Hernandez serve a prison term.
At the sentencing hearing on February 5, 2020, the trial court and the
parties reviewed Hernandez’s potential credits at length, settling on actual
credits of 338. The prosecutor declined to argue, stating the court was well
aware of his position and very familiar with the case. Defense counsel, in
contrast, argued that a grant of probation would do the least harm going
forward for everyone involved by rehabilitating Hernandez.
Noting that it had given Hernandez an opportunity and he violated the
terms of his probation “in a minute,” the trial court denied probation and
sentenced Hernandez to the three-year mid-term on count one. However,
given the prior discussions in the case and all the circumstances involved, the
court struck any additional punishment with respect to the great bodily
injury special allegation. (§ 1385, subd. (b)(1).) Credits were set at 338 actual
and 51 conduct days. (§ 2933.1.) The court concurrently imposed a
restitution fine of $300, along with a corresponding suspended parole
revocation fine (§§ 1202.4, subd. (b), 1202.44, 1202.45, subd. (a)); criminal
conviction and court security fees of $90 and $120, respectively (Gov. Code, §
70373; § 1465.8); a $500 domestic violence fund fee (§ 1203.097, subd.
(a)(5)(A)), and a $25 administrative screening fee (§ 1463.07). Direct victim
restitution was reserved. Hernandez filed a timely notice of appeal, limited
to sentencing issues.
4
II. DISCUSSION
As discussed above, Hernandez appealed from the trial court’s
February 2020 sentencing order made after he admitted to violating his
probation. We appointed counsel to represent him. After examining the
record, counsel filed a Wende brief raising no issues on appeal and requesting
that we independently review the record. (Wende, supra, 25 Cal.3d 436, 441;
see also People v. Kelley (2006) 40 Cal.4th 106, 109-110.) Hernandez was
advised by his attorney of the opportunity to file a supplemental brief with
this court, but he has not done so.
We have examined the entire record and are satisfied that Hernandez’s
attorney has complied with her responsibilities and that no arguable issue
exists. While it is conceivable that the record could have supported a lesser
sentence or return to probation, the three-year sentence was consistent with
the plea agreement and represents a permissible exercise of the court’s
discretion under all of the facts and circumstances of the case, especially
given the severity of the initial incident and the speed with which Hernandez
violated his probationary terms. (People v. Sandoval (2007) 41 Cal.4th 825,
847 [reviewing sentencing decision, which must be based on “ ‘individualized
consideration of the offense, the offender, and the public interest,’ ” for abuse
of discretion]; see also People v. King (2010) 183 Cal.App.4th 1281, 1323 [“The
trial court has broad discretion with regard to sentencing, and its decision
will be affirmed on appeal, so long as it is not arbitrary or irrational and is
supported by any reasonable inferences from the record.”].) In addition, we
see no issues with respect to the fines and fees imposed by the court, to which
counsel did not object.
III. DISPOSITION
The judgment is affirmed.
5
SANCHEZ, J.
We concur.
HUMES, P.J.
MARGULIES, J.
(A160317)
6