Opinion
F062431
12-19-2011
THE PEOPLE, Plaintiff and Respondent, v. RUDY HERNANDEZ, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. MCR037645)
OPINION
THE COURT
Before Wiseman, Acting P.J., Kane, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Appellant, Rudy Hernandez, appeals from a judgment entered after he pled guilty to one count of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, we will direct the court to correct an error in Hernandez's abstract of judgment and in all other respects affirm the judgment.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On February 9, 2010, a sixteen-year-old girl reported to the Madera Police Department that as a child she had been sexually molested by Hernandez. According to the victim, Hernandez's wife babysat her from the age of one month until she was six years old. However, Hernandez's wife would leave the victim with Hernandez when she left the house to run errands. During the summer of 1999, when the victim was five years old, on three occasions she was watching television when Hernandez removed her pants and underwear and touched her on her genital area and orally copulated her. The victim never reported the incidents because Hernandez would tell her that if she said anything she would be "in big trouble."
On March 10, 2010, at approximately 4:00 p.m., at the behest of the police, the victim participated in a pretext call with Hernandez. During the call Hernandez made several incriminating statements.
On March 23, 2010, Madera Police Officer Trukki arrested Hernandez and interviewed him at the police station. During the interview Hernandez admitted that when the victim was six or seven years old he touched her in her genital area once or twice and orally copulated her once or twice. At Officer Trukki's suggestion, Hernandez wrote a letter of apology to the victim.
On October 18, 2010, the district attorney filed a first amended complaint charging Hernandez with two counts of lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)/counts 1 & 2) and two counts of oral copulation with a child under the age of 14 (§ 288, subd. (c)(1)/counts 3 & 4).
On January 28, 2011, the court appointed Dr. Michael Zimmerman to perform a psychiatric examination of Hernandez. In a report dated February 21, 2011, Dr. Zimmerman concluded that placing Hernandez on probation would not pose a threat to the victim and he appeared amenable to treatment, but that his risk level to other children was unknown. Dr. Zimmerman also concluded that based on the available information it was not possible to determine whether Hernandez met the diagnostic criteria for pedophilia.
On March 4, 2011, Hernandez entered his guilty plea to one count of lewd and lascivious conduct with a child under the age of 14 in exchange for the dismissal of the remaining counts with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
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On May 6, 2011, after hearing from the victim and several family members, the court sentenced Hernandez to the middle term of six years.
Hernandez's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Hernandez has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record we find that no reasonably arguable factual or legal issues exist. However, our review of the record disclosed the following error in Hernandez's abstract of judgment. Since Hernandez's conviction for violating section 288, subdivision (a) was a violent felony (§ 667.5, subd. (c)(6)), section 2933.1 subdivisions (a) and (c) limited Hernandez to earning a maximum of 15 percent presentence conduct credit. Although the court awarded Hernandez presentence conduct credit pursuant to section 2933.1, the abstract of judgment, at part 12, erroneously indicates that Hernandez's conduct credit was calculated pursuant to section 4019. Therefore, we will direct the court to issue an abstract of judgment that corrects this error.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment, which shows that Hernandez's presentence conduct credit was calculated pursuant to section 2933.1 and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.