SARAH HERNANDEZ v. DANIEL JUNIOR, etc.

• Court: District Court of Appeal of Florida
• Decided: September 15, 2021
• Docket: 21-1738
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 15, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1738 Lower Tribunal No. F21-6596 ________________

Sarah Hernandez, Petitioner,

vs.

Daniel Junior, etc., et al., Respondents.

A Case of Original Jurisdiction – Habeas Corpus.

Avelino J. Gonzalez, P.A., and Mario A. Machado, for petitioner.

Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for respondent The State of Florida.

Before MILLER, LOBREE and BOKOR, JJ.

BOKOR, J. In this habeas corpus petition, Sarah Hernandez contends she is

being held illegally based on the trial court’s failure to set reasonable bond

on the charge of human trafficking pursuant to section 787.06(3)(g), Florida

Statutes. 1 Specifically, Hernandez is charged with human trafficking based

1 Hernandez was granted bond on the other three counts for which she was charged. The trial court found no bond appropriate for the human trafficking charge, which is the focus of this opinion. To the extent the petition seeks a reduction in the amount of bond for the other three charges for which the trial court set bond, we find such argument without merit.

The specific provision of the statute for which Hernandez is charged states:

(3) Any person who knowingly, or in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human trafficking, or benefits financially by receiving anything of value from participation in a venture that has subjected a person to human trafficking: […] (g) For commercial sexual activity in which any child younger than 18 years of age or an adult believed by the person to be a child younger than 18 years of age, or in which any person who is mentally defective or mentally incapacitated as those terms are defined in s. 794.011(1), is involved commits a life felony, punishable as provided in s. 775.082(3)(a)6., s. 775.083, or s. 775.084.

Fla. Stat. 787.06(3)(g). Section 787.06 also provides the following relevant definitions:

(2)(b): “Commercial sexual activity” means any violation of chapter 796 or an attempt to commit any such offense, and includes sexually explicit performances and the production of pornography.

(2)(d): “Human trafficking” means transporting, soliciting, recruiting, harboring, providing, enticing, maintaining, purchasing, patronizing, procuring, or obtaining another person for the purpose of exploitation of that person.

2 on the allegation that she and the 17-year old victim “were seen dancing

erotically” in a video available for sale and viewing, which video “was filmed

at the direction of [Hernandez] and with the intention to profit from the

sales.”2 Hernandez moved for reasonable bond on the trafficking charge,

which the trial court considered during an Arthur hearing. 3 The trial court

denied bond on the human trafficking charge, finding that there were no

conditions that would assuage the court’s concerns regarding protecting

the community, and particularly the victim, from possible communication or

contact from Hernandez. We review the trial judge’s findings under an

abuse of discretion standard.

The trial court found that no conditions of release could reasonably

protect the community (or the victim) from risk of harm. Specifically, the

2 The arrest affidavit also claims, and hearing testimony reflects, that the victim profited from the video sales and that Hernandez invited the victim to “multiple private parties and bars where she danced and stripped for money. The victim said she purchased drugs from [Hernandez] numerous times and took them in her presence.” 3 Human trafficking is an offense punishable by life. Accordingly, the trial court conducted a hearing pursuant to State v. Arthur, 390 So. 2d 717 (Fla. 1980), to consider (1) if the State’s evidence rises to the standard of proof evident, presumption great and if so, (2) whether there are conditions that can protect the community and ensure Hernandez’s appearance in court. While Hernandez does not concede proof evident and presumption great (the first prong of the Arthur hearing), the petition focuses on the second prong of the Arthur hearing, whether there are reasonable conditions to protect the community and ensure Hernandez’s appearance.

3 trial court was concerned that if Hernandez wanted to, it may be difficult to

prevent contact between Hernandez and the victim through the telephone

or other electronic means. The problem with this concern is that, without

more, it could apply to prevent bail in any case. There is no indication,

and the State has not argued or offered evidence, that Hernandez poses a

special, heightened, or in any way particularized risk of offending by trying

to reach the victim. The State did not meet its burden in showing that there

are no conditions that could reasonably protect the community. At the

combination Arthur/pretrial release hearing, The State presented the

detective who signed the arrest affidavit. The State, however, offered no

evidence of dangerousness that could reasonably preclude pretrial release

subject to appropriate conditions. The State presented argument that

because of Hernandez’s prior friendship with the victim, she presented a

special risk of contacting the victim. This is conclusory and not supported

by the record. Instead, the facts and circumstances support bond and

sufficient conditions of pretrial release—including, for example,

Hernandez’s lifelong connections to the area, her lack of history of related

incidents, and the lack of testimony that she tried to contact the victim after

being charged. There is also no indication in the record that Hernandez

forced, coerced, or otherwise pressured the victim to engage in the

4 charged act. Nor does the record contain any evidence that Hernandez or

engaged in threats or any menacing behavior directed to the victim. The

record reflects the victim posted the offending video on her social media

and collected a portion of the profits. While human trafficking is a serious

charge, the statute covers a wide range of activities, such that an

understanding of the specific facts of the case is necessary to appreciate

the dangerousness to the community and the reasonableness of any

findings pertaining thereto. Tellingly, as it pertains to dangerousness, the

lead detective presented by the State, in response to the State’s

questioning at the Arthur hearing, indicated that Hernandez was no longer

contacting the victim and no longer assisted or facilitated the shows or

performances:

Q. And when you interviewed the victim, did she confirm that the defendant [Hernandez] had ended this relationship of organizing work for the victim.

A. She was essentially, on her own after that.

Accordingly, we grant the petition for writ of habeas corpus and remand to

the trial court. The court shall immediately conduct a hearing to determine

appropriate bond and conditions of release for the human trafficking count. 4

4 Hernandez proposes a bond amount and conditions of release in her petition. We decline to adopt or endorse any specific amount or conditions. We are confident the trial court can craft a reasonable bond for this count

5 Hernandez shall remain in custody pending the determination of, and

compliance with, the bond amount and other relevant conditions of pretrial

release.

This opinion shall take effect immediately notwithstanding the filing or

disposition of any motion for rehearing.

as well as any additional reasonable conditions, such as, for example, surrendering passport, home confinement except for church, school, lawyers/court, and doctors, GPS monitoring, restriction of electronic devices, allowing access to smartphones, etc. The trial court may consider, to the extent relevant, the conditions of release ordered in State v. Cuesta, F-21-001515-B (Fla. 11th Jud. Cir. Ct.). Roberto V. Cuesta was charged with crimes involving the same victim. Cuesta, like Hernandez, was also charged with human trafficking and unlawful use of a communications device. But, unlike Hernandez, Cuesta was also charged with unlawful sexual activity with the minor victim. The court set bond and conditions of release in Cuesta on the human trafficking count which included electronic monitoring.