From Casetext: Smarter Legal Research

People v. Hernandez

California Court of Appeals, Sixth District
Jul 15, 2008
No. H032424 (Cal. Ct. App. Jul. 15, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GERARDO HERNANDEZ, Defendant and Appellant. H032424 California Court of Appeal, Sixth District July 15, 2008

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. SS071867

ELIA, J.

Pursuant to a negotiated disposition, on August 7, 2007, defendant Gerardo Hernandez pleaded no contest to one count of continuous sexual abuse of a child under the age of 14 years (Pen. Code, § 288.5, subd. (a), count one) and one count of oral copulation (Pen. Code, § 288a, subd. (a), count five)). In exchange for his no contest pleas, defendant was promised his sentence would be six years in state prison (top/bottom).

There is some confusion in the record as to whether defendant pleaded no contest to count four or count five. The clerk's transcript reflects that defendant pleaded no contest to count four. However, this conflicts with the reporter's transcript, which in this case is contained within the clerk's transcript, which reflects that defendant pleaded no contest to count five. Where there is a discrepancy, the record of the oral pronouncement of the court generally controls over the clerk's minute order. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Our statement of facts relies upon the court's oral pronouncement.

Before he was sentenced, defendant attempted to withdraw his plea alleging that he was not properly advised by the court pursuant to Penal Code section 1016.5 that "his plea would result in exclusion from admission into the United States and that [he] did not fully understand the consequences of his plea, was not properly explained his plea by his attorney and was under too much pressure to plead no contest." The court denied defendant's motion.

When the court sentenced defendant on October 23, 2007, the court imposed the negotiated sentence of six years consisting of the following: the mitigated term of six years on count one, plus a concurrent six-year term on count five

On October 29, 2007, defendant requested a certificate of probable cause on the ground that the trial court erred in denying his motion to withdraw his plea. The trial court issued a certificate of probable cause on November 13, 2007. On December 14, 2007, defendant filed a timely notice of appeal.

We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. However, pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396] appellate counsel provided the following issue to assist this court in our independent review. Specifically, appellate counsel asked this court to determine if the lower court erred in denying defendant's motion to withdraw his plea.

On April 4, 2008, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, we have reviewed the entire record and have concluded that there are no arguable issues on appeal, including appellate counsel's possible issue concerning defendant's motion to withdraw his plea. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)

Just as the trial court found, there is nothing in the record to indicate that defendant was not fully aware of his actions or was under undue stress and pressured to enter into the plea bargain. Furthermore, a mere failure to advise the defendant of all the consequences of his plea is subject to harmless error analysis because the requirement to advise the defendant of plea consequences "is not constitutionally mandated. Rather, the rule compelling such advisement is 'a judicially declared rule of criminal procedure.' [Citation.]" (People v. Walker (1991) 54 Cal.3d 1013, 1022.) This type of error "is waived absent a timely objection." (Id. at p. 1023.)

Facts

The facts are taken from the probation officer's report.

Thirteen-year-old Jane Doe first met defendant when she was walking to elementary school. She continued to see him every day. One day while she was standing in front of a market they began to talk. After this initial contact, defendant walked Jane Doe to school every day.

While she was still 13 years old, Jane Doe ran away from home and began living with defendant. She lived with defendant at his residence for approximately "the entire summer." Jane Doe told defendant she was only 13. Nevertheless, they became sexually active and were trying to "start a family." They had sex everyday. Defendant insisted that there was nothing wrong with the relationship because Mexico had no laws prohibiting it.

Procedural History

On June 8, 2007, the Monterey County District Attorney filed a complaint in which defendant was charged with three counts of continuous sexual abuse of a child under the age of 14 years (Pen. Code, § 288.5, subd. (a), counts one, two and three) and two counts of oral copulation (Pen. Code, § 288a, subd. (a), counts four and five).

Before defendant entered his no contest pleas to counts one and five, he was advised by the court of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122. In addition, defendant signed and initialed a form, which was written in English, entitled "WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST." Defendant's attorney countersigned the form. In countersigning the form, defendant's attorney confirmed that he had explained and discussed the facts and possible defenses to the charges, the possible consequences of defendant's pleas of no contest, that he concurred in defendant's decision to waive his rights and to enter a plea of no contest, and that he had witnessed the reading of the form to the defendant and defendant's initialing and signing of the form. Furthermore, a certified Spanish interpreter signed the form confirming that the form was "truly translated" to the defendant in Spanish and that the defendant indicated an understanding of, and initialed and signed, the form.

The waiver form that defendant signed advised him that if he was not a citizen of the United States, a no contest plea "will result in deportation, exclusion from admission to this country, denial of naturalization and/or denial of re-entry to this country."

However, it was not until after defendant entered his pleas of no contest to count one that the court advised defendant "You understand, as a result of this conviction, you will be required, if you are in the United States, to register as a sex offender pursuant to section 290 of the California Penal Code." Defendant replied, "Yes." Furthermore, it was not until after defendant entered his no contest pleas that the court informed defendant that both counts were "strikes." Defendant responded, "Oh." The court asked defendant if he understood. Defendant responded, "Yes."

On August 22, Miguel Hernandez substituted in as attorney of record in this case. As noted, on October 2, Mr. Hernandez filed a motion for defendant to withdraw his plea. On October 9, the prosecutor filed a motion in opposition. At the hearing on the motion on October 11, the court denied the motion, finding that there was insufficient evidence in the transcript to show that defendant "was not fully aware of his actions and he was pressured and under undue stress."

As noted, the court sentenced defendant pursuant to the terms of the plea bargain. However, at the time of sentencing, the court did not award defendant his custody credits because the probation officer was not present to update the credits and the prosecutor told the court "I believe you can sentence him, and probation can send a memo with the credits to follow him." The court addressed defendant's counsel as follows: "We'll do it that way. You want to do that today at this time?" Defendant's counsel replied, "yes."

We remind the trial court that pursuant to Penal Code section 2900.5 "all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to [Penal Code ] Section 4019, shall be credited upon his or her term of imprisonment . . . ." Furthermore, pursuant to subdivision (d) of section 2900.5, "It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to . . . [section 2900.5]. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213."

Thereafter, the court imposed a $2400 restitution fund fine, ordered defendant to register as a sex offender and imposed two $20 court security fees. Further, the court ordered mandatory Aids testing pursuant to Penal Code section 1202.1.

Subsequently, defendant's counsel pointed out to the court that as of September 20, 2007, defendant's custody credits were "106 actual [days], with 15 additional days for good time credits, for a total 0f 121. Since that date, there's been an additional 64 actual [days] and whatever the 15 percent comes up to on that for credits." The court asked defendant's counsel to compute the credits. It appears that this process is ongoing.

It appears that counsel incorrectly told the court that the credits had been calculated as of January 20 and not September 20.

According to the probation officer's report the good time/work time credits were calculated using a 15 percent accrual rate pursuant to Penal Code section 2933.1. However, trial counsel was incorrect in stating that there are 64 days between September 20 and October 23.

The original abstract of judgment in this case does not reflect the award of any custody credits. However, on February 13, 2008, appellate counsel wrote to the trial court and asked the court to update defendant's credits. Appellate counsel informed the court that defendant was entitled to 161 days of credit consisting of 140 days of actual credit plus 21 days of good time/work time credits. The court updated defendant's credits as requested and forwarded an updated abstract of judgment to appellate counsel. Appellate counsel forwarded a copy to this court. Subsequently, appellate counsel requested that the trial court revise the custody credits again. As of the time of writing this opinion the trial court has not responded to appellate counsel's request. Nevertheless, we find that appellate counsel's initial calculation was correct.

In conclusion, our review of the entire record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

Disposition

The judgment is affirmed.

WE CONCUR: RUSHING P. J., PREMO, J.


Summaries of

People v. Hernandez

California Court of Appeals, Sixth District
Jul 15, 2008
No. H032424 (Cal. Ct. App. Jul. 15, 2008)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GERARDO HERNANDEZ, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Jul 15, 2008

Citations

No. H032424 (Cal. Ct. App. Jul. 15, 2008)