Opinion
A123183
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN HERNANDEZ, Defendant and Appellant.
Not to be Published in Official Reports
Counsel appointed for defendant Dustin Hernandez has asked us to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but did not do so. We have conducted that review, and conclude there are no arguable issues. We thus affirm.
Our examination reveals the following: An information filed May 2, 2008, charged defendant with seven counts, four felonies and three misdemeanors: Count one, stalking, a violation of Penal Code section 646.9, subdivision (a), a felony; counts two and three, criminal threats on two separate occasions, felony violations of section 422; count four, kidnapping, a violation of section 207, subdivision (a), a felony; count five, battery on a former girlfriend and co-parent of appellants child, a violation of section 243, subdivision (e)(1), a misdemeanor; count six, vandalism, a violation of section 594, subdivision (b)(2)(A), a misdemeanor; and count seven, grand theft person, a violation of section 487, subdivision (c), a misdemeanor.
The information followed a preliminary hearing at which Leah Rutus testified. Rutus was defendants former girlfriend, with whom he was involved for approximately two years and with whom he had a child. She testified about three separate incidents involving defendant, on March 15, April 5, and April 6, 2008. Specifically:
Late in the evening on March 15, defendant entered Rutuss garage without permission, climbed up the fire escape, and demanded to be let in, saying he was going to "kill her." Rutus was scared and opened the window and defendant climbed in. Rutuss mother then confronted defendant, and he "apologized and left. He ran off."
Rutus thereafter obtained an emergency protective order (EPO) against defendant. Despite that, Rutus continued to have contact with defendant, because she wanted him to have a relationship with their daughter.
Late in the afternoon of April 5 (approximately 5:00 p.m.) defendant came to Rutuss apartment and demanded money. He appeared to be drunk, and needed money, telling Rutus that he was going to "fuck you up . . . mess you up." Rutus took her wallet from her purse to give defendant $20 when he grabbed the wallet from her, took her welfare card and fled. Later that night, Rutus found out that $120 had been withdrawn from her account without her permission.
Early in the morning of April 6 (approximately 1:00 a.m.), Rutus was sitting in her car with a friend at 7th and Market Streets, and saw defendant on the street. Defendant walked up to the car, opened the left passenger door, and pushed Rutuss friend out of the car, grabbed Rutus by the neck, and told her to drive. Rutus drove around the area, with defendant holding her neck While she was driving he also "socked" her in the face with a closed fist. Rutus swerved, was able to pull over, grabbed her keys, and ran out of the her car. Defendant smashed the car window, and ran after Rutus, screaming.
Later that morning defendant came to Rutuss apartment, rang the doorbell incessantly, and told Rutus over the intercom to let him in, that he was going to "fuck [her] up." Rutus called 911.
On May 16, 2008, against his counsels advice, defendant pleaded guilty to one felony count of stalking (§ 646.9, subd. (a)). Defendant understood at the time of his plea that the maximum possible sentence was three years, but that he would be placed on probation for five years, with imposition of sentence suspended and credit for time served in county jail. The remaining counts would be dismissed.
On June 25, 2008, the court followed the probation departments recommendation and imposed the negotiated sentence: five years probation, with imposition suspended. The terms of the probation included a stay-away order from Rutus, her apartment, and John Dearmond, and a condition to obey all laws.
On June 30, 2008, defendant was arrested for battery, violating the stay away order, and delaying peace officer duties. And on July 2, the probation department filed a probation violation and motion to revoke probation, which came on for hearing on September 17, 2008. Rutus testified at that hearing, however reluctantly, saying first that she did not want to be there or to help put defendant in jail. Rutus testified that, despite the stay away order, she went to pick defendant up so she could return some of his clothes. Defendant was drunk. Rutus apparently drove around with defendant in the car when he started "yelling and screaming." She pulled over, they got into an argument, and then defendant grabbed the car keys and left. Rutus testified that she was angry with defendant for taking her keys, but denied that he had hit her in the arm or pushed her into the fence, as had told the responding officer.
She also testified that she lied to the police officer at the time, because she was angry with defendant and wanted "to get him in trouble." And, she stated, she did not want defendant to go to jail because "he didnt do anything to deserve to go to jail," and because they had a baby together.
San Francisco Police Officer Deniz Aknese testified that he responded to a call at 10th and Harrison and came upon defendant. Defendant identified himself as "Joseue Hernandez," and gave his date of birth as August 6, 1989; he did not have any identification with him. Defendant denied that he was on probation or parole.
Rutus provided Aknese with the correct identification and date of birth, and a computer check revealed the stay-away order. Aknese arrested defendant and recovered his social security card and Rutuss car keys. Aknese further testified that upon his arrival at the scene, Rutus was crying and appeared scared. Rutus also told him that during defendants previous jail stay, he "kept calling her and harassing her"; and she asked Aknese to keep defendant from doing that again.
Following argument, the court found that defendant violated his probation in the that he violated the stay-away order, committed a battery upon Rutus, and provided false identification to the police. The court also found Rutuss testimony not credible.
On October 25, 2008, the court revoked probation, and sentenced defendant to the low term of 16 months, with 223 days credit. Defendant filed a timely notice of appeal.
DISCUSSION
Our review leads to the same conclusion as defendants counsel: there is no issue that requires further briefing.
Defendants plea agreement was supported by the evidence at the preliminary examination, and was entered into knowingly, willfully, and voluntarily.
Substantial evidence supports the conclusion that defendant violated his probation.
Defendant was at all times represented by competent counsel.
No sentencing error occurred.
The judgment is affirmed.
We concur:
Haerle, Acting P.J.
Lambden, J. --------------- Notes: Because defendant entered into a negotiated plea agreement prior to trial, we derive the factual background from the preliminary hearing transcript and the probation report.