P. v. Hernandez



















Filed 9/28/10 P. v. Hernandez CA2/2

>

>

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. JAVIER AVILA HERNANDEZ, SR., et al., Defendants and Appellants.

B221349 (Los Angeles County Super. Ct. No. LA062184)

TO THE COURT:*

Javier
Avila Hernandez, Sr. (Hernandez, Sr.) and Javier Hernandez, Jr. (Hernandez,
Jr.) appeal from the judgments entered upon their convictions of cultivating marijuana (Health & Saf.
Code, § 11358) upon their pleas of no contest.
Hernandez, Sr. also admitted a prior felony strike within the meaning of
Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions
(b) through (i). The trial court
dismissed Hernandez, Sr.'s felony strike and sentenced him to 16 months in
state prison. It suspended imposition of
sentence on Hernandez, Jr. and placed him on three years formal probation, on
conditions, including that he spend 30 days in jail.

FACTUAL AND
PROCEDURAL BACKGROUND[1] >

On May 20, 2009, police officers went to
a house at 14620 Leadwell Street,
in Los Angeles County,
with a search warrant. In the backyard,
they found 118 marijuana plants, a couple of bags of hash, and a bag of
seeds. In the house they found scales,
marijuana in a bag, $123 in cash and Ziploc baggies. Appellants were at the house at the time of
the search. After being advised of his >Miranda[2] > rights,
Hernandez, Sr. told the officers that the marijuana belonged to him and was for
his personal use. After being advised of
his Miranda rights, Hernandez, Jr.
said the marijuana in the yard belonged to him.
Several other children of Hernandez, Sr. gave statements that the
marijuana belonged to Hernandez, Sr., although one son said that he and
Hernandez, Sr. cultivated the marijuana.
Both appellants were charged with cultivating marijuana, and
Hernandez, Sr. was also charged with possession of marijuana for sale.

During the
course of the preliminary hearing,
defense counsel made a Miranda motion
which the trial court denied. The police
officer had read the admonitions to appellants, asked if they understood them
and then asked if they would like to talk about what happened.

On November 10, 2009, pursuant to plea
bargains, appellants pled no contest to the charge of cultivating marijuana,
and Hernandez, Sr. admitted the prior strike.

Before
sentencing, Hernandez, Sr. made a Romero[3] > motion,
arguing that he was only 28 years old when the offense was committed 23 years
earlier. Since then, he has been a
firefighter. The trial court granted
that motion, finding the prior felony strike to be too remote.

We
appointed counsel to represent
appellants on this appeal. After
examination of the record, counsel filed â€