P. v. Hernandez CA3

Filed 7/15/13 P. v. Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C070156

v. (Super. Ct. No. CRF11370)

JUAN MANUEL HERNANDEZ,

Defendant and Appellant.

Appointed counsel for defendant Juan Manuel Hernandez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record and defendant’s supplemental brief, we note an error in the trial court’s award of conduct credits and an error on the amended abstract of judgment. Defendant is entitled to additional conduct credits for the time he was detained in jail for an evaluation of his competency. On the abstract, the wrong box is checked for the statutory authority for the conduct credits. We find no other arguable error that would result in a disposition more favorable to defendant. As modified for conduct credits, the judgment is affirmed.

1

FACTUAL AND PROCEDURAL BACKGROUND Between October 1, 2010, and November 30, 2010, defendant Juan Manuel Hernandez touched the vaginal area over the clothes of 12-year-old C.G. who had been sleeping. A search of defendant’s computer revealed over 100 images and 86 videos of minor girls in sexually-explicit poses and activities, as well as a photograph of defendant touching the vaginal area skin-to-skin of C.G. on August 1, 2010. Defendant also sent harassing or annoying text messages to another young girl on July 1, 2010. Defendant entered a negotiated plea of no contest to possession of child pornography (Pen. Code, § 311.11, subd. (a)1; count 5), annoying or molesting a child, a misdemeanor (§ 647.6, subd. (a); count 6), and two counts of lewd or lascivious conduct upon a child under the age of 14 years (§ 288, subd. (a); counts 1 and 4) and admitted a strike prior (§ 667, subds. (b)-(i)) in exchange for the dismissal of the remaining counts and allegations, and a stipulated state prison sentence of 21 years and four months. The stipulated sentence consisted of the upper term of eight years on count 4, one-third the midterm or two years for count 1, and one-third the midterm or eight months for count 5, with all the terms doubled for the strike prior, and a concurrent 120-day jail term for count 6. Defendant also admitted violating probation in another case in exchange for no additional time. After entering his plea, defendant substituted newly retained counsel in place of his previous attorneys. New counsel thereafter declared a doubt as to defendant’s competency, filed a motion to withdraw defendant’s plea, and requested that the trial court strike defendant’s strike prior (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)). The court suspended criminal proceedings and appointed a psychiatrist who evaluated defendant. The psychiatrist concluded defendant’s lack of