Filed 12/15/15 P. v. Nevarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. MANUEL LEON NEVAREZ, Defendant and Appellant. F069468
(Fresno Super. Ct. No. 13907323)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

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* Before Poochigian, Acting P.J., Franson, J. and Peña, J.2

. INTRODUCTION Appellant Manuel Leon Nevarez pled no contest to one count of driving while under the influence and causing bodily injury (Veh. Code, § 23153, subd. (b)) and admitted personally causing great bodily injury (Pen. Code, § 12022.7, subd. (a)). 1 The plea agreement specified a three year maximum term of imprisonment. The trial court sentenced Nevarez to a total term of three years in prison . Nevarez filed an appeal and requested a certificate of probable cause, which was granted. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

FACTUAL AND PROCEDURAL SUMMARY On July 18, 2013, Nevarez was drivin g his Tacoma pickup truck with a blood

alcohol level of 0.14 percent when he struck a five

- year

- old boy riding a bicycle, causing multiple pelvic fractures. Nevarez admitted drinking two 30

- ounce beers, and one 24

- ounce beer prior to driving. Ne varez ’ s p assenger stated she knew Nevarez was “ drunk ” and had tried to stop him from driving, b ut he insisted. Witnesses at the scene reported hearing a “ loud crash ” and seeing Nevarez run over the boy with the right

- side wheels of his truck. It appeared to multiple witnesses as though Nevarez was not planning to stop because the truck kept going after impact. One witness jumped forward waving for Nevarez to stop; another witness reached inside and removed the keys from the truck ’ s ignition. On August 2, 20 13, Nevarez was charged with two felony counts. Count 1 charged a violation of Vehicle Code section 23153, subdivision (b); count 2 charged a violation of subdivision (a) of that same code section. It also was alleged that Nevarez personally inflicted gr eat bodily injury within the meaning of section 12022.7,

1 All further r eferences to code sections are to the Penal Code unless otherwise specified.3

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subdivision (a). The public defender was appointed to represent Nevarez, who pled not gui lty to all charges. On October 29, 2013, Nevarez entered into a negoti ated disposition. The plea agreement provided that Nevarez plead no contest to the charge of violating Vehicle Code section 23153, subdivision (b) and the section 12022.7, subdivision (a) enhancement, in exchange for dismissal of the other count and a maximum “ lid ” of three
years in state pri son. At the October 29 hearing, the trial court verified that Nevarez had read and reviewed the change of plea form with the assistance of his lawyer and the interpreter. Nevarez indicated he understood the terms and conditions of the plea , and defense

co unsel affirmatively stated that he believed Nevarez understood the terms and
conditions.
The trial court reviewed Nevarez ’ s constitutional rights and Nevarez affirmatively waived those rights. The trial court also reviewed the immigration consequences of the plea and notified Nevarez that the plea would constitute a strike offense for purposes of
the “T hree S trikes ” law and explained the future consequences of a plea to a strike offense; Nevarez acknowledged that he understood the consequences and had disc ussed the consequences with defen se counsel. At this point, the trial court notified Nevarez that the plea to the great bodily injury enhancement would make Nevarez statutorily ineligible for probation unless the trial
court found unusual circumstances. T he trial court wanted Nevarez to understand that

“ the presumption is that on this plea you would be sentenced to state prison. ” Nevarez
was then asked if he understood this , and he respond ed affirmatively. The trial court then proceeded to accept Nevarez ’ s plea to the offense and his
admission to the enhancement. The trial court found that “ this plea is freely and voluntarily entered and that [Nevarez] has knowingly, intelligently, and expressly waived all of his statutory and constitutional rights. ”4

.

The probation report noted that the victim presently was in a wheelchair because of the pelvic fractures and would be starting physical therapy. Nevarez was clinically assessed to evaluate his alcohol use and amenability to treatment , and the assessment was
i ncluded in the probation report. Nevarez had a “ problematic pattern ” of alcohol use

“ leading to clinically significant impairment ” and “ indicated a lack of insight on
addiction. ” Nevarez was diagnosed as having moderate alcohol abuse disorder. The probat ion officer noted that Nevarez did not have a prior criminal record, but denial of probation was recommended because Nevarez “ was unwilling to admit his actions of drinking or driving are problematic. ” The probation officer opined that
Nevarez was a risk to the community “ since he is not prepared to address his reckless
behavior. ” The probation report recommended imposition of the middle term of two years for the offense, plus a three

- year consecutive term for the enhancement, for a total term of imprison ment of five years. The sentencing hearing was held on April 30, 2014. Prior to imposing sentence, the trial court stated that it had considered the probation report, letters from Nevarez, a letter from the Crime Victim Assistance Center, the diagnostic r eport, and the mitigation statement filed by the defense. There was a lengthy discussion and argument regarding
vict im restitution. The trial court stated its indicated sentence was to deny probation; impose the aggravated term of three years for the offe nse; and strike the punishment for the enhancement, as this factor was used as a factor in aggravation. The parties proceeded to argue their positions, with the defense urging a grant of probation and the People supporting the indi cated sentence.
After he aring argument from both parties, the trial court proceeded to articulate the reasons for its sentence and proceeded to impose sentence. The trial court denied probation; imposed the aggravated term of three years for the substantive offense; struck the p unishment for the enhancement, ordered victim restitution in the amount of5

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$22,327.92; awarded 294 days of credit; and imposed various other fines and fees. The abstract of judgment that was filed, however, reflected an aggregate term of six years;
three for the substantive offense and three f or the enhancement. A notice of appeal was filed May 22, 2014 and a certificate of probable cause was granted on May 28. On August 4, 2014, appellate counsel was appointed to represent Nevarez in this appeal. On Sep tember 4, 2014, appellate counsel notified the trial court of the error in the abstract of judgment and requested a corrected abstract be prepared and filed. On October 8, 2014, a corrected abstract was filed and disseminated to the appropriate authoritie s. Appellate counsel filed a Wende brief on December 4, 2014. That same day, this court issued its letter notifying Nevarez he had the right to file a supplemental brief. No supplemental brief was filed.
DISCUSSION After securing a corrected abstract of judgement, appellate counsel filed a Wende brief; Nevarez did not file a supplemental brief. In requesting a certificate of probable cause, Nevarez alleged that the trial court failed to properly weigh and consider sentencing factors; failed to follow the probation report recommendation for the
mi tigated term; abused its discretion in denying probation and imposing the aggravated term; and failed to consider the holding of Paroline v. United States (2014) ___ U.S. ___, 134 S.Ct. 1710 in imposing restitution.
A trial court has broad discretion in weighing sentencing factors. ( People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) On appeal, we do not reweigh the sentencing factors. ( People v. Carmony (2004) 33 Cal.4th 367, 379.) We review sentencing
decisions under a deferential abuse of discretio n standard. ( People v. Sandoval (2007) 41 Cal.4th 825, 847.) Nevarez had been told when he entered his no contest plea that “ the presumption is that on this plea you would be sentenced to state prison. ” Nevarez was then asked if he6

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understood this and he responded affirmatively. There is no abuse of discretion in the
trial court ’ s denial of probation. ( People v. Sandoval, supra, 41 Cal.4th at p. 847.) Additionally, here the probation officer recommended the mitigated term of two years with an additional three years for the enhancement, a total term of five years. The trial court instead imposed a sentence of three years in prison, which conformed to the plea agreement, by striking the imposition of punishment for the enhancement and using
that as a fact or in aggravation. A trial court has broad discretion in weighing sentencing factors. ( People v. Evans, supra, 141 Cal.App.3d at p. 1022.) We do not reweigh the sentencing factors. ( People v. Carmony, supra, 33 Cal.4th at p. 379.)
As for the failure to consider the holding of Paroline v. United States , supra , 134
S.Ct. 1710 in setting restitution, Nevarez failed to explain how this case is applicable. In Paroline, the U.S. Supreme Court addressed federal restitution statutes as they applied to
child pornography cases. ( Id. at pp. 1718

– 1719.) The U.S. Supreme Court concluded
that the victim ’ s losses had to be proximately caused by the defendant. ( Id. at pp. 1721

– 1722.) If Nevarez is contending that the victim ’ s losses were not proximately caused b y his actions, we emphatically reject that contention as unsupported by the record. The victim restitution represents medical bills for the victim and lost wages for the family member caring for the victim while t he child recovered. In sum, Nevarez was se ntenced in accordance with his plea agreement and the record does not disclose any abuse of discretion by the trial court. After an independent review of the record, we find no reasonably arguable factual or legal issue exists.
DISPOSITION The judgment is affirmed.