Opinion
A168892
09-16-2024
THE PEOPLE, Plaintiff and Respondent, v. SERGIO HURTADO-DOMINGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 22SF001406A
STREETER, ACTING P. J.
Defendant Sergio Hurtado-Dominguez's appointed appellate counsel filed a brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed Hurtado-Dominguez of his right to file a supplemental brief. Hurtado-Dominguez subsequently sent a letter to this court which, translated, asks that we explain the length of his sentence, contending that his lawyer did not explain it well.
After conducting an independent review of the record, we find no arguable appellate issues and affirm the judgment.
I. BACKGROUND
In April 2023, the San Mateo County District Attorney filed an amended felony information charging Hurtado-Dominguez with attempted deliberate and premeditiated murder (count one); first degree residential robbery (count two); making a criminal threat (count three); willful infliction of corporal injury on a person with whom he had a dating relationship (count four); driving or taking a vehicle without consent (count five); and unlawfully taking a vehicle from a person in their immediate presence (count six). The information included certain special and enhancement allegations as well.
In May 2023, Hurtado-Dominguez and the prosecution entered into a plea agreement, as reflected in a declaration executed by Hurtado-Dominguez, his translator, his trial counsel, and the prosecutor. Hurtado-Dominguez agreed to plead no contest to count four, the willful infliction of corporal injury on a person with whom he had a dating relationship (Pen. Code, § 273.5), and count six, unlawfully taking a vehicle from a person in their immediate presence (§ 215, subd. (a)), admit he had a prior conviction that was a serious felony, a violent felony, and a prior strike, and admit his charged offense involved great violence and bodily harm within the meaning of section 1170, subdivision (b)(2). The remaining counts were to be dismissed. It was agreed that Hurtado-Dominguez would receive no more than 20 years of a potential maximum 26-year sentence. The parties stipulated to a factual basis for his no contest pleas.
Undesignated statutory citations are to the Penal Code.
The trial court found that Hurtado-Dominguez had voluntarily and knowingly waived his rights and entered his pleas. It accepted the pleas, found him guilty of counts four and six and the allegations he admitted to be true, and dismissed the remaining charges.
The probation department filed a report with the court for the sentencing hearing in which it described Hurtado-Dominguez's present and prior offenses and his background. It reported that in January 2022, sheriff's deputies responding to a report of a physical altercation found a woman inside a residence with multiple injuries and contusions to her face and neck. She said Hurtado-Dominguez had confronted her on the street and forced her to the residence, which was his, where he punched her in her face repeatedly, said he was going to kill her, and strangled her until she almost lost consciousness, and that he then stole items from her, including her keys, and, without her permission, took her vehicle, later found to be owned by her husband.
The complaining witness first denied knowing Hurtado-Dominguez, then said she previously had had a one-month sexual relationship with him, after which he repeatedly had threatened to kill her in phone calls and text messages. The deputies found an empty bottle of tequila on the floor of Hurtado-Dominguez's room. They reviewed threatening communications from Hurtado-Dominguez to the complaining witness and a video of part of the incident showing Hurtado-Dominguez wrapping his arm around her neck and threatening her in order to force her to his residence.
Later that day, in Monterey County, Hurtado-Dominguez was arrested for driving under the influence after being stopped in the vehicle the complaining witness had described. Transported to San Mateo County and interrogated, he was repeatedly deceptive about his identity, the owner of the vehicle, and the subject incident, changed his story, and challenged the deputies. After first denying that he knew the complaining witness, he admitted having been with her and said the incident was her fault because she gave him alcohol and drugs, which they both had ingested. He also said the incident was both their faults and that he had only responded when the complaining witness had attacked him. In a probation department interview and written statements, he said he did not remember what had happened after he had ingested tequila and drugs, and asked the complaining witness for forgiveness. The department also reported that during the interview, he "did not appear genuinely remorseful," blamed the complaining witness for his jailing, and said she lied in court and the incident was both their faults.
The department further reported that Hurtado-Dominguez's prior strike offense, committed in November 2011, involved an attempted robbery during which he choked the victim and fought with him, causing the victim injuries. Later asked by police whether he had fought with the victim, he said he did not remember anything because "I do get drunk a lot and . . . was smoking crystal back then, so maybe."
The department also reported that Hurtado-Dominquez had committed other offenses, including looking into a bathroom window while a woman was showering in 2012. The department wrote that his "supervision history on probation has been poor. He has suffered multiple probation violations, which resulted in him being sentenced to prison." After 2012, he did not commit a criminal offense until the present offense.
Hurtado-Dominguez said he was born in Mexico into poverty, left school after the third grade, came to the United States and worked, started using drugs such as marijuana and cocaine and drinking as a minor, regularly sent money to his mother in Mexico, was married and fathered three children by his wife and another woman, who all were in Mexico, and earned $500 a week working in a restaurant before his arrest.
Hurtado-Dominguez moved under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) for the court to strike his prior strike conviction, arguing such things as the long gap between his prior strike offense and the present offense, his traumatic childhood, his consistent work history and support of his family, his substance addiction, and the nature of the present offense showed his circumstances were outside the spirit of the "Three Strikes" law. The People opposed the motion, their arguments including that Hurtado-Dominguez posed a threat to public safety in light of the violence of the present offense and its similarities to his prior strike offense, as well as his lack of remorse and failure to take responsibility for his actions, and that there was an absence of evidence that the current offense was related to any childhood trauma.
At the sentencing hearing, the parties debated the merits of Hurtado-Dominguez's Romero motion. The court did not rule directly on the motion but implicitly denied it, emphasizing in announcing sentence the violence and threats involved in the present offense, Hurtado-Dominguez's lack of remorse and failure to take responsibility for his actions, and the similarities between the current offense and prior strike offense. The court said it was "very concerned about the protection of the public with his behavior, especially when he mixes it with alcohol and drugs." It sentenced him to 20 years in state prison, consisting of a nine-year upper term for count six and a consecutive one-year term for count four, both doubled because of the prior strike, and ordered him barred from contact with the victims for 10 years. It also awarded him 627 total days of custody and conduct credits and imposed various fines and fees.
Hurtado-Dominguez filed a timely appeal from the validity of his pleas and admission but the court denied his request for a certificate of probable cause. He also appealed from the sentence or matters occurring after the plea that did not affect the validity of the plea.
II. DISCUSSION
We have conducted an independent review of the record under Wende and find no arguable appellate issues. We focus on sentencing because Hurtado-Dominguez did not obtain a certificate of probable cause from the trial court as required for the remainder of his appeal (§ 1237.5).
We note in particular that section 1385, subdivision (a), gives the trial court the discretion to dismiss a prior conviction, including a qualifying strike conviction, "in furtherance of justice." (Romero, supra, 13 Cal.4th at p. 530; In re Large (2007) 41 Cal.4th 538, 543; see People v. Cole (2001) 88 Cal.App.4th 850, 869-870 [no certificate of probable cause needed to argue trial court abused its discretion in failing to strike a prior conviction].) "[W]hen facing a motion to dismiss a strike allegation, the trial court 'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (People v. Vargas (2014) 59 Cal.4th 635, 641, italics omitted.)
" '[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.'" (In re Large, supra, 41 Cal.4th at p. 550.)
" 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
A court is not required to state its reasons for denying a Romero motion. (See In re Coley (2012) 55 Cal.4th 524, 560 ["[A]lthough a trial court is required to state on the record its reasons for striking a prior conviction (§ 1385, subd. (a)), there is no similar statutory requirement of an on-the-record statement of reasons when a court declines to strike a prior."].) The trial court is" 'presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 637.)
Upon conducting an independent review of the record under Wende, we conclude nothing in the record suggests the trial court abused its discretion in implicitly denying Hurtado-Dominguez's Romero motion or erred in its sentencing decisions.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: GOLDMAN, J., DOUGLAS, J.[*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.