Filed: 6/18/26 P. v. Hernandez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B346121
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24LBCF01017)
v.
NEIL SANCHEZ HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
In this criminal appeal, appellate counsel for defendant
Neil Adan Sanchez Hernandez filed an opening brief raising no
issues for our review but identifying one error in the abstract of
judgment. Defendant has not personally filed a supplemental
brief. Having reviewed the record ourselves, we affirm but order
the abstract of judgment modified. (See People v. Wende (1979)
25 Cal.3d 436; see also People v. Kelly (2006) 40 Cal.4th 106.)
An August 2024 first amended complaint charged
Hernandez with a single count of driving under the influence of
alcohol within 10 years of a prior felony conviction for driving
under the influence. (Veh. Code, §§ 23152, subd. (a), 23550.5,
subd. (a).) The complaint alleged Hernandez refused to take a
chemical test, subjecting him to additional punishment under
Vehicle Code section 23538, subdivision (b)(2). The complaint
alleged Hernandez had suffered convictions for several felonies,
unrelated to driving under the influence, that presumptively
precluded probation. (See Pen. Code, § 1203, subd. (e)(4).) And
the complaint alleged several factors that might support an
aggravated sentence.
Hernandez pleaded no contest to the charge of driving
under the influence. He admitted the prior felony conviction for
driving under the influence. And he admitted the sentence-
enhancing allegations that he had refused a chemical test and
had served a prior term in county jail or prison. The trial court
selected a high-term sentence of three years but suspended this
sentence and imposed probation. Conditions of probation
included that Hernandez serve 180 days in county jail, that he
not carry firearms or ammunition, and that he not drink alcohol
or visit places where alcohol is the chief item for sale.
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In early 2025, the People brought a new felony charge
against Hernandez — possessing, controlling, or owning
ammunition (Pen. Code, § 30305, subd. (a)(1)) — and contended
the conduct underlying the charge evidenced violations of
probation conditions. Police Officer Torres of the Bell Gardens
police department testified at a combined preliminary hearing
and probation revocation hearing. He had responded to a 911 call
about a man with a gun. He observed Hernandez just outside the
door of a bar. Hernandez did not match the description of the
man with the gun, nor did Hernandez appear to have a gun.
Hernandez, however, smelled strongly of alcohol, slurred his
speech, was belligerent, and struggled to stay balanced and to
answer the officer’s questions. The officer’s body-worn camera
captured the interaction. Officer Torres arrested Hernandez for
being intoxicated in a public place. After the arrest, officers
discovered Hernandez’s probation status and searched him. One
officer, in Officer Torres’s presence, found a live bullet in
Hernandez’s pants pocket.
Following this testimony, the trial court denied a motion to
suppress premised on Hernandez not matching the 911 caller’s
description of the man with a gun. The call was irrelevant, ruled
the court. The officer saw a drunk person in public in need of
care and could investigate. The court then denied a motion to
reduce the new offense to a misdemeanor. The trial court found
sufficient cause to believe Hernandez was guilty of the new
offense and, furthermore, revoked Hernandez’s probation.
About a month later, in April 2025, Hernandez brought a
motion under People v. Marsden (1970) 2 Cal.3d 118, which the
court denied after a hearing. On that same day, the court also
noted Hernandez had a pending motion for discovery under
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Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) but
delayed ruling on that motion at the request of the Bell Gardens
police department.
On May 5, 2025, the trial court held a combined pretrial
hearing and probation violation hearing. Hernandez offered no
evidence beyond the preliminary hearing testimony. The court
found Hernandez in violation of probation because he had
possessed ammunition, consumed alcohol, and had visited a place
where alcohol was the chief item for sale. The court agreed with
the People to dismiss the new felony charge and then dismissed
the pending Pitchess motion as moot. The trial court terminated
probation, executed the stayed three-year sentence, with credit
for 201 days, and continued any outstanding fines and fees.
Hernandez timely appealed.
On March 6, 2026, appellate counsel filed an opening brief
raising no issues for our review. Before filing, counsel sent
Hernandez a letter notifying him of this planned course of action.
On the date of filing, counsel again wrote to Hernandez,
informing him of the brief’s filing and his right to file a
supplemental brief. Counsel also provided Hernandez a copy of
the record on appeal. Hernandez has not filed a supplemental
brief.
We have examined the entire record. We are satisfied that
no arguable issues exist on appeal and that defendant’s appellate
counsel has discharged the responsibilities arising under People
v. Wende and its progeny. To the extent we could theorize a
potential claim of ineffective assistance of counsel premised on
proceeding with the probation violation hearing without the
benefit of potential Pitchess material, the apparent video
evidence of intoxication and our inability to ascertain defense
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counsel’s tactics mean this claim is not one that is arguable on
direct appeal and should be raised, if at all, in a separate petition
for habeas corpus. (See People v. Mendoza Tello (1997)
15 Cal.4th 264, 266.) We express no view on the merits of such a
claim.
We do agree, however, with Hernandez’s appellate counsel
that the abstract of judgment should reflect that Hernandez was
granted custody credits for his time in county jail under Penal
Code section 4019, not Penal Code section 2933. We will order
this correction.
DISPOSITION
We affirm the judgment. We direct the trial court to amend
the abstract of judgment to reflect Hernandez’s custody credits
are under Penal Code section 4019, and we direct the trial court
to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
SCHERB, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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