Opinion
No. 3D21-1738
12-01-2021
Sarah HERNANDEZ, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
Avelino J. Gonzalez, P.A., and Mario A. Machado, Miami, for petitioner. Ashley Moody, Attorney General, Tallahassee, and Kayla Heather McNab and Magaly Rodriguez, Assistant Attorneys General, Miami, for respondent The State of Florida; Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Benjamin D. Simon, Assistant County Attorney, for respondent Daniel Junior.
Avelino J. Gonzalez, P.A., and Mario A. Machado, Miami, for petitioner.
Ashley Moody, Attorney General, Tallahassee, and Kayla Heather McNab and Magaly Rodriguez, Assistant Attorneys General, Miami, for respondent The State of Florida; Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Benjamin D. Simon, Assistant County Attorney, for respondent Daniel Junior.
Before MILLER, LOBREE and BOKOR, JJ.
BOKOR, J.
ON RENEWED PETITION FOR WRIT OF HABEAS CORPUS
Hernandez renews her petition seeking habeas corpus relief based on the conditions of pretrial release set by the trial court's September 21, 2021, amended order setting release conditions. The trial court conducted a hearing and entered the amended order pursuant to this Court's September 15, 2021, opinion granting Hernandez's petition seeking a writ of habeas corpus. Upon review, we discern no abuse of discretion in the conditions set or the view taken by the trial court. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (explaining that no abuse of discretion lies where "reasonable [people] could differ as to the propriety of the action taken by the trial court"). Accordingly, the renewed petition for writ of habeas corpus is denied.
ON MOTION FOR REHEARING OR CLARIFICATION
The State's motion for rehearing is granted. We withdraw our opinion of September 15, 2021, and issue this opinion in its place.
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. Specifically, Hernandez is charged with human trafficking based 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." Hernandez moved for reasonable bond on the trafficking charge, which the trial court considered during an Arthur hearing. 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 with Hernandez. We review the trial judge's findings under an abuse of discretion standard. Hernandez v. Roth, 890 So. 2d 1173, 1174 (Fla. 3d DCA 2004).
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 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."
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 if the State's evidence rises to the standard of proof evident, presumption great. In the context of a capital or life offense, the trial court may hold the accused without bond but maintains discretion to issue a bond. 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. "On this issue [under an Arthur analysis], the burden is on the accused to demonstrate that release on bail is appropriate." Id. at 720.
At an Arthur hearing, the burden falls on the accused to demonstrate the appropriateness of release on bond. Hernandez met her burden in showing that release on bail with reasonable pretrial restrictions was appropriate. The State failed to refute or contravene that evidence. While human trafficking is a serious charge, the statute covers a wide range of activities. We do not intend this to be a one-size-fits-all guide as to what facts must be adduced to meet the accused's burden of proof in establishing appropriateness of pretrial release and the specific conditions of such release. Instead, the specific facts of the case guide the trial court in its determination of the danger posed to the community by the accused, and the reasonableness and appropriateness of pretrial release under those specific circumstances.
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.
§ 787.06(3)(g), Fla. Stat. 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.
Specifically, the trial court was concerned that 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. Against the backdrop of the evidence adduced at the hearing that Hernandez has not contacted the victim, the State has not argued or offered evidence, nor did the trial court make any finding, that Hernandez poses a special, heightened, or in any way particularized risk of offending by trying to reach the victim. The State argued that because of Hernandez's prior friendship with the victim, she presented a special risk of contacting the victim. However, 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.
Such concern of communication with the victim, under the facts of this case and without more, fails to support a finding of no reasonable conditions of pretrial release.
Accordingly, we grant the petition for writ of habeas corpus and remand to the trial court for further proceedings, as necessary. Hernandez shall remain in custody pending the determination of, and compliance with, the bond amount and other relevant conditions of pretrial release.
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 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.