California Court of Appeal Jul 18, 2016 No. D069427Unpublished
Filed 7/18/16 P. v. Hernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069427
Plaintiff and Respondent,
v. (Super. Ct. No. JCF35170)
NICOLAS HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,
Jr., Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Nicolas Hernandez entered a plea of no contest to possession of an illegal
substance in a state prison (Pen. Code,1 § 4573.6, subd. (a)). Hernandez also admitted a
serious/violent felony prior conviction (§ 667, subds. (b)-(i)). The remaining count was
dismissed.
The trial court denied a defense motion to strike the serious/violent felony prior
conviction and imposed a prison term of four years.
Hernandez appeals contending the trial court abused its discretion in denying his
motion to strike the prior conviction. We are satisfied the trial court acted well within the
range of its discretion and will affirm the judgment.
STATEMENT OF FACTS
This case arises from a plea agreement with a stipulated factual basis.
On August 4, 2012, Hernandez was observed receiving contraband from a visitor
and placing the substance in his mouth. Authorities later recovered heroin from
Hernandez and both heroin and marijuana from the visitor.
DISCUSSION
Hernandez contends the trial court abused its discretion when it denied his motion
to strike the prior conviction. Essentially, he argues the court placed too much weight on
the violent nature of his strike prior and did not give adequate weight to the mitigating
factors. We disagree.
1 All further statutory references are to the Penal Code unless otherwise specified. 2
A. Background
In 2008, Hernandez was convicted of armed robbery (§ 211). During the robbery
Hernandez threatened the victim with a gun. He took money from the store, and from the
victim as well. Hernandez was 18 years old at the time of the offense. According to the
probation report, Hernandez was sentenced to a nine-year term.
While still in prison for the robbery, Hernandez committed the current offense in
this case.
In his motion to strike the prior, Hernandez emphasized his youth at the time of
the strike offense. He argued it was remote in time, having been committed in 2006.
Hernandez contended he had prospects for a stable life and that the current offense was
not violent. Accordingly, Hernandez claimed the court was obliged to strike the prior
conviction.
B. Legal Principles
In People v. Superior Court (Romero) (1994) 13 Cal.4th 497, 529-530, the court
held that section 1385 permitted trial courts, in their discretion, to strike serious/violent
felony prior convictions in the furtherance of justice. In People v. Williams (1998) 17
Cal.4th 148, 158, the court established some guidelines for the exercise of discretion in
such cases. Specifically, the court in Williams held trial that courts, ruling on motions to
strike serious/violent felony priors must consider the background of the defendant, the
prospects for rehabilitation, the nature of the "strike" prior and the current offense. (Id. at
pp. 160-161.) The trial court should determine whether "the defendant may be deemed
outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be
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treated as though he had not been previously convicted of one or more serious/violent
felonies." (Id. at p. 161.)
One of the factors the court can consider is whether the current or prior offenses
involved violence. (People v. Myers (1999) 69 Cal.App.4th 305, 308-310.) The length
of time between the strike prior and the current offense is also a proper factor for the trial
court's consideration. (People v. Bishop (1997) 56 Cal.App.4th 1245, 1251.)
Even where there has been the passage of some time between the prior conviction
and the current offense, the court may consider whether some, or all of that time included
periods of incarceration, which would limit a person's ability to commit more crimes.
(People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
When a sentencing court exercises its discretion in making a sentencing choice,
we may not reverse such decision in the absence of a clear showing the trial court abused
its broad discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
C. Analysis
The record clearly shows the trial court made a careful and detailed analysis of the
merits of the motion to strike the prior conviction. The court considered the defendant's
age at the time of the prior. It considered the absence of criminal history before the
robbery and the nonviolent nature of the current offense.
The court however, was also aware that Hernandez had remained in custody from
the time of his robbery conviction until the present crime, which was committed in
prison. The court found the current offense required planning and sophistication and
flatly rejected the defendant's self-serving explanation for the current offense.
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Undoubtedly, the factor that tipped the scale in the trial court's analysis was the violent
nature of the robbery. The court emphasized the violence of the offense and expressed
that as a factor influencing the court.
Hernandez complains that the trial court gave too much weight to the facts of the
prior. The court's sentencing choice is, of course, a classic exercise of discretion. That
the defendant disagrees, or even if another court might have made a different decision, is
not evidence of abuse of discretion. Here the court examined all of the factors for and
against the motion. We cannot say the court was arbitrary, capricious, or unreasonable in
its decision. In the last analysis, Hernandez committed a violent armed robbery, went to
prison and while in prison engaged in planned smuggling of drugs into the prison. He
then gave the court a self-serving justification for his new crime, which the court found to
be false. The trial court's decision cannot be effectively challenged on this record.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in denying the defendant's motion to strike a prior serious/violent felony conviction, as the court properly weighed the defendant's background, the nature of the offenses, and prospects for rehabilitation.
Issues
Did the trial court abuse its discretion by denying the defendant's motion to strike a prior serious/violent felony conviction?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We are satisfied the trial court acted well within the range of its discretion and will affirm the judgment.”
“The court's sentencing choice is, of course, a classic exercise of discretion.”
“We cannot say the court was arbitrary, capricious, or unreasonable in its decision.”