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People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 12, 2012
G045062 (Cal. Ct. App. Jan. 12, 2012)

Opinion

G045062 Super. Ct. No. 09WF0114

01-12-2012

THE PEOPLE, Plaintiff and Respondent, v. MARIA ELENA CUEVAS HERNANDEZ, Defendant and Appellant.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Maria Elena Cuevas Hernandez was charged with stealing numerous items of personal property while working as a house cleaner. The charges comprised five counts of residential burglary, one count of petty theft with a prior, and one count of receiving stolen property. It was further alleged she had suffered one prior felony strike conviction under Penal Code section 667, subdivisions (d) and (e) and one prior serious felony conviction under Penal Code section 667, subdivision (a). Her maximum exposure for these crimes was incarceration for a period of 27 years, 8 months.

Instead, she was sentenced to nine years, under an agreement in which she pled guilty to a count of burglary (for which she received four years (mid-term doubled under the Three Strikes law)) and the five-year enhancement for the serious felony. She was awarded 751 days credit for actual time in custody plus 374 conduct credits for a total of 1,125 days of presentence credit, and ordered to make restitution to her victims of $65,745.

She later applied for a certificate of probable cause to appeal. That request was denied by the trial court, so the only issues before us have to do with the validity of the plea and matters occurring after the plea.

We appointed counsel to represent appellant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on appellant's behalf. Appellant was given 30 days to file written argument in her own behalf. That period has passed, and we have received no communication from her.

We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The clerk's transcript includes the proceedings on the two days on which appellant pled guilty (her plea was taken, the matter was sent out for a probation report, and then sentencing was imposed). They were conducted in intelligible language, with a minimum of legalese. Appellant was able to hear the rights involved explained and the bargains agreed to with both her codefendants, so she had three opportunities to understand what was going on and ask questions if she did not understand anything. She was represented by counsel who explicitly stated he had explained everything to her. At one point, there appeared to be some confusion, but it was resolved - apparently after time was taken for her attorney to explain it to her. The only statement she made in these proceedings amounted to a request for forgiveness from the victim - a laudable sentiment, but not one that suggests grounds for appeal.

The advisement of rights form includes a factual basis for the plea written in a simple and easily-followed format. It fully supports the conclusion her plea was made with full understanding of the charges against her and her rights in the proceedings.

Appellate counsel notes a discrepancy on the plea form, which indicated appellant would admit three counts and her subsequent oral and written admission of all seven counts, but neither he nor we are able to figure out how that could support an appeal.

The presentence credit calculation seems accurate, and there is nothing to suggest the restitution was improperly computed. As counsel implicitly acknowledges, restitution may be ordered even for counts the defendant does not admit, so it would be appropriate whether she pled to seven counts or three.

It appears to us that appellate counsel was correct that there are no arguable issues here. The judgment is affirmed.

BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. ARONSON, J.


Summaries of

People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 12, 2012
G045062 (Cal. Ct. App. Jan. 12, 2012)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARIA ELENA CUEVAS HERNANDEZ…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 12, 2012

Citations

G045062 (Cal. Ct. App. Jan. 12, 2012)