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People v. Hernandez

California Court of Appeals, Fourth District, Third Division
Apr 29, 2009
No. G041228 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 08CF0095, Richard W. Stanford, Jr., Judge.

Suzanne C. Skolnick, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

SILLS, P. J.

On January 12, 2008, between 8:00 and 8:30 p.m., Josefina Ortega locked her valuables in a dresser drawer and locked her bedroom door before she left for work. Sometime before she returned home at 6:00 a.m. on the 13th, someone broke into her room, opened the locked drawer, and removed rings, bracelets, necklaces, earrings, a watch, and an evening purse. Officers responding to Ortega’s apartment questioned her roommates, Francisco Gonzalez Hernandez and Juan Antonio Noriega. They denied knowing anything about the theft. Her children, who also shared her bedroom, were not at home that night. One of the officers searched Hernandez and found Ortega’s watch. A search of the bedroom Hernandez and Noriega shared yielded additional items belonging to Ortega.

Hernandez was charged with first degree burglary and receiving stolen property. A jury found him not guilty of burglary, but convicted him of receiving stolen property. In addition, the court found Hernandez in violation of probation in a separate case (People v. Hernandez (Super. Ct. Orange County, 2005, No. 05CF2679). Appellant had pled guilty to two counts of second degree burglary in September 2005 and been placed on three years formal probation.

After the jury returned its verdict, the court continued the sentencing hearing for the preparation of a plea and sentencing report. At the sentencing hearing, the court denied Hernandez’ request to reduce the receiving stolen property conviction to a misdemeanor, pursuant to Penal Code section 17, subdivision (b), and imposed the low term of 16-months. The court further imposed a consecutive term of 16 months for the probation violation, consisting of two consecutive eight-month terms for each of the two second degree burglary convictions. Hernandez filed a timely notice of appeal from the judgment of conviction.

All further undesignated statutory references are to the Penal Code.

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 the client, but advised the court no issues were found to argue on appellant’s behalf. (Anders v. California (1967) 386 U.S. 738.) Counsel listed five potential issues for our consideration: (1) Are errors regarding sentencing on the probation violation encompassed by the appeal; (2) were appellant’s Sixth Amendment rights as explained in Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 undermined by section 654; (3) do consecutive sentences on burglaries occurring on the same day violate section 654; (4) did the court err by failing to state reasons for the imposition of consecutive sentences; and (5) did the court abuse its discretion by denying Hernandez’ section 17, subdivision (b) motion? Hernandez was given 30 days to file written argument in appellant’s own behalf. However, that period has passed, and we have received no communication from him.

With respect to counsel’s identified potential issues, we find none to be arguably meritorious. (1) The two eight-month terms imposed for the probation violation are encompassed within the sentence, and correspondingly the judgment, of the receiving stolen property case. (People v. Lopez (1941) 43 Cal.App.2d Supp 854, 867.)

(2) The California Supreme Court has determined that section 654 does not require a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1263-1264 (Black I). Although the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. 270, 273 undermined other portions of the Black I decision, the portion discussing section 654 was not addressed. Thus, we are bound by existing California Supreme Court precedent on the issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

(3) The trial court relied on the facts stated in the probation report to impose consecutive sentences in the probation violation matter. According to the report, the Santa Ana Police Department received a burglary alarm activation for a law practice on August 19, 2005. When officers responded to the business, they located a blood trail, but could not locate a suspect. They followed the blood trail to a car parked within one-half block of the business. The car had been burglarized and Hernandez was arrested at the scene. He admitted breaking into the law practice. We conclude substantial evidence supports the trial court’s determination that the two burglaries were independent acts for which separate punishment is permissible under section 654.

(4) The court stated that it imposed the low-term of 16 months for receiving stolen property “due mainly to the small amount of money involved in the crime and the fact that the victim has been made whole.” The court then imposed consecutive eight-month terms for each of the two burglaries — “a second degree burglary of a vehicle and a second degree burglary of a law office.” The probation report set forth no circumstances in mitigation for the court to consider, and our independent review of the record revealed none. Thus, the court’s failure to state reasons for imposition of consecutive terms is clearly harmless. (See People v. Fernandez (1990) 226 Cal.App.3d 669, 678.)

(5) A sentencing court enjoys broad discretion under section 17, subdivision (b), and Hernandez bears the burden of demonstrating that the court’s decision was “‘irrational or arbitrary.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) The court rejected Hernandez’ request to reduce the receiving stolen property conviction to a misdemeanor, citing three primary factors: (1) the stolen property, although not extremely valuable, had been unlawfully taken from a residence; (2) appellant was present at the scene shortly after the burglary, which prompted the court to “impugn[] some knowledge of the burglary to him”; and, (3) appellant was on felony probation for second degree burglary at the time. Hernandez has failed to demonstrate that the court abused its discretion by denying his request to reduce the felony receiving stolen property conviction to a misdemeanor.

In addition to rejecting counsel’s identified potential issues, our independent review of the record has revealed no other arguably meritorious issues. (People v. Wende (1979) 25 Cal.3d 436.) Therefore, the judgment is affirmed.

WE CONCUR: RYLAARSDAM, J., IKOLA, J.


Summaries of

People v. Hernandez

California Court of Appeals, Fourth District, Third Division
Apr 29, 2009
No. G041228 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GONZALEZ HERNANDEZ…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 29, 2009

Citations

No. G041228 (Cal. Ct. App. Apr. 29, 2009)