People v. Tinajero CA5

Filed 7/12/21 P. v. Tinajero 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081008
Plaintiff and Respondent,
(Kern Super. Ct. No. DF014978A)
v.
MARTIN JUNIOR TINAJERO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Robert Tafoya
and David E. Wolf, Judges.†
James E. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
†
Judge Tafoya presided over the arraignment; Judge Wolf presided over the
change of plea and sentencing hearings.
INTRODUCTION
Appellant and defendant Martin Junior Tinajero pleaded no contest to felony
infliction of corporal injury to a cohabitant and was placed on probation. On appeal, his
appellate counsel has filed a brief that summarizes the facts with citations to the record,
raises no issues, and asks this court to independently review the record. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTS1
On January 31, 2020, defendant hit his girlfriend’s face approximately 10 times
with his open hand, held her tightly on both arms, and inflicted bruises. She broke free
and called the police. Defendant grabbed the telephone from her, threw it on the floor,
threatened to kill her if she called for help, and grabbed his girlfriend’s young son by the
neck. She managed to separate defendant from her son.
PROCEDURAL BACKGROUND
On February 4, 2020, a complaint was filed in the Superior Court of Kern County
charging defendant with two felony offenses: count 1, corporal injury to a cohabitant
(Pen. Code, § 273.5, subd. (a));2 and count 2, child endangerment likely to cause great
bodily harm or mental suffering (§ 273a, subd. (a)).
On February 4, 2020, the court issued and personally served defendant with a
criminal protective order that prohibited contact with the victims in counts 1 and 2.
Plea
On February 13, 2020, the court granted the prosecution’s motion to amend the
complaint and add count 3, misdemeanor child endangerment (§ 273a, subd. (b)).
Thereafter, defendant pleaded no contest plea to felony count 1 and the newly
added misdemeanor count 3, pursuant to a negotiated disposition for probation subject to
1 The facts are from the police reports, as summarized in the probation report.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
certain terms and conditions. The court granted the People’s motion to dismiss felony
count 2.
Sentencing hearing
On March 12, 2020, the court held the sentencing hearing. In count 1, felony
corporal injury, the court placed defendant on probation for three years subject to certain
terms and conditions, including serving 180 days in county jail and completing a
substance abuse program, a 52-week batterer’s program, and a 52-week child abuser’s
program; the court stayed the requirement for the child abuser’s program pending
completion of the batterer’s program.
In count 3, misdemeanor child endangerment, the court placed defendant on
probation for four years, with a concurrent jail term of 180 days.
Defense counsel objected to imposing the child abuser’s class as a condition of
felony count 1, and argued it was more appropriate to impose it as a condition of
misdemeanor count 3, child endangerment. Counsel asserted defendant faced the
possibility of state prison if he was found in violation of probation for felony count 1.
The court overruled defense counsel’s objection and found the probation condition was
reasonably related to count 1. The court further stated: “If we get to the point where
felony probation is terminated and we still have misdemeanor probation, we can talk
about switching those,” and “I would not violate somebody unless I found that the failure
to do so was willful.”3
3 “The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and what conditions should be imposed…. Most
conditions … stem from the sentencing court’s general authority to impose any
‘reasonable’ conditions that it ‘may determine’ is ‘fitting and proper to the end that
justice may be done ....’ [Citation.]” (People v. Welch (1993) 5 Cal.4th 228, 233.)
“[P]robation conditions which regulate conduct ‘not itself criminal’ must be ‘reasonably
related to the crime of which the defendant was convicted or to future criminality.’
[Citation.]” (Id. at pp. 233–234.)
As to count 3, section 273a, subdivision (c) requires that when a person convicted
of violating this section is placed on probation, he or she must complete a child abuser’s
3.
The court issued and personally served defendant with a protective order
prohibiting contact with the victims in counts 1 and 3 for 10 years (§ 273.5, subd. (j)).
As to count 1, the court imposed a $500 domestic violence fine (§ 1203.097,
subd. (a)(5)). As to both counts, the court imposed a restitution fine of $300 (§ 1202.4,
subd. (b)) and suspended the probation revocation fine in the same amount (§ 1202.44),
with victim restitution in an amount to be determined (§ 1202.4, subd. (f)). The court
also imposed court operations assessments of $80 (§ 1465.8) and criminal conviction
assessments of $60 (Govt. Code, § 70373).
The public defender’s office requested an order for reimbursement of attorney fees
for $362. The court asked defendant if he objected. Defendant said no, and the court
imposed the order.
On March 20, 2020, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on December 1, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
treatment program of no less than one year as a minimum condition of probation, but that
condition may be waived if the court finds it would not be in the interest of justice and
states on the record the reason for that waiver.
The court did not abuse its discretion in deciding to waive this condition for
count 3, and instead impose it as a condition of count 1, defendant’s infliction of corporal
injury to the mother of that child because it was reasonably related to that conviction.
4.