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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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-

 

* 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 driving his Tacoma pickup truck with a bloodalcohol 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. Nevarez’s passenger stated she knew Nevarez was “drunk”

and had tried to stop him from driving, but 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, 2013, 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 great bodily injury within the meaning of section 12022.7, 

 

1 All further references to code sections are to the Penal Code unless otherwise

specified.
3.

subdivision (a). The public defender was appointed to represent Nevarez, who pled not 

guilty to all charges.

On October 29, 2013, Nevarez entered into a negotiated 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 prison.

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 

counsel 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 “Three Strikes” law and explained the future consequences of a plea to a strike 

offense; Nevarez acknowledged that he understood the consequences and had discussed 

the consequences with defense 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. The 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 responded 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 

included 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 probation 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 imprisonment 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 report, and the mitigation 

statement filed by the defense. There was a lengthy discussion and argument regarding 

victim restitution.

The trial court stated its indicated sentence was to deny probation; impose the 

aggravated term of three years for the offense; 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 indicated sentence.

After hearing 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 punishment for the enhancement, ordered victim restitution in the amount of 
5.

$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 for 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 September 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 authorities.

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 

mitigated 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 discretion 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 he 
6.

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 factor 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 by 

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 the child recovered.

In sum, Nevarez was sentenced 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.