This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,


Gonzalo Hernandez,



Filed December 4, 2001


Peterson, Judge


Steele County District Court

File No. K70031



Mike Hatch, Attorney General, James Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and



Douglas L. Ruth, Steele County Attorney, 3093 South Cedar, Box 616, Owatonna, MN  55060 (for respondent)



John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)




            Considered and decided by Anderson, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from sentences imposed for second-degree intentional murder and second-degree felony murder, appellant Gonzalo Hernandez argues that (1) the district court abused its discretion by declining to depart downward durationally; (2) the sentences violated the plea agreement by exceeding the agreed-upon cap on actual prison time served; and (3) the police failed to inform him about his rights under the Vienna Convention.  We affirm.


Hernandez pleaded guilty to charges of killing Juan Jasso and Arturo Reyes.  Hernandez knew Jasso through mutual friends, and he met Reyes just a few weeks before the murder.  Before the night of the murders, Hernandez had been involved in confrontations with each of the victims.  Jasso and Hernandez got into a fight while Hernandez was driving Jasso home from a bar after both of them had become intoxicated, and Hernandez confronted Reyes after learning that Reyes had accused him of having an affair with another man’s wife.  During the confrontation, Hernandez carried a knife in a conspicuous manner, and Reyes told Hernandez that he also had a knife.  Hernandez testified that he bought the knife for protection because his girlfriend’s brothers were out to get him.

            On the night of the murders, Hernandez went to a bar with several friends, including Reyes and Jasso.  All the men had already been drinking.  At the bar, a fight broke out between Hernandez’s group of friends and another man, Juan Carrasco.  Hernandez stabbed Carrasco during the altercation, and there was testimony that Hernandez also cut Jasso accidentally.  Hernandez’s group then left in a car to go to Martin Rodriguez’s house.  During the ride there, Hernandez and Jasso argued, but Hernandez testified that he did not want to fight.

            At Rodriguez’s home, Jasso became angry with Hernandez and said he wanted to talk to him outside.  Ricardo Mata told Hernandez not to go outside, and told Jasso that if he was going to talk to anyone, it would be Mata.  Jasso and Mata went outside, and Hernandez waited several minutes before going outside.  The accounts of what happened next varied.

            Hernandez testified that once they were outside, Jasso tackled Hernandez, threw him to the ground, and began choking him.  Hernandez stabbed Jasso to get Jasso to stop choking him and to get Jasso off him.  Some of the other men pulled Jasso off Hernandez and started punching Jasso.  Hernandez testified that Reyes then ran towards him and punched him, and Hernandez stabbed him in self-defense.  Hernandez then got in his car, drove away, and threw the knife out the window. 

            None of the other witnesses who testified said that they saw Jasso tackle or choke Hernandez, and none of the witnesses said that they saw either of them on the ground at first.  Mata testified that Hernandez and Jasso began to argue, and Mata tackled Jasso to break up the fight.  All of the witnesses saw Reyes run towards Hernandez and try to punch him, but nobody saw Hernandez stab Reyes.  When Reyes tried to attack Hernandez, one of the other men tackled Reyes and two more men piled on top.  Two of the witnesses testified that they then saw Jasso and Hernandez fighting, that Hernandez made a stabbing gesture towards Jasso, and that Jasso fell to the ground.  Delia Segura testified that after witnessing the fighting between Jasso and Hernandez, she said to Hernandez, “you killed him,” and he replied, “yeah, what are you going to do about it?”  David Soria testified that he walked toward Jasso after the incident, noticed him breathing funny, asked Hernandez what had happened, and Hernandez replied that he had stabbed Jasso.

            After police arrested Hernandez, they questioned him about the stabbings without informing him about his right to contact Mexican consular officials.


1.         Absent a clear abuse of discretion, we will not disturb the district court’s sentencing decision.  State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).  The district court must order the presumptive sentence provided in the sentencing guidelines unless “substantial and compelling circumstances” warrant a departure.  State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001).  “A [district] court’s decision to impose the presumptive sentence will be reversed only in a rare case.”  State v. Hopkins, 486 N.W.2d 809, 812 (Minn. App. 1992) (citation omitted).  Even when grounds exist that might justify a departure, we ordinarily will not interfere with the imposition of a presumptive sentence.  State v. Back, 341 N.W.2d 273, 275 (Minn. 1983); see State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (noting that district court retained discretion to deny downward departure despite existence of mitigating factor); State v. Kindem, 313 N.W.2d 6, 7-9 (Minn. 1981) (affirming district court’s refusal to depart downward although mitigating factors existed).

            When determining whether a durational departure is justified, a district court must consider “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).  A court may choose to depart downward durationally where a case involves “substantial and compelling circumstances” that mitigate a defendant’s culpability for the offense.  State v. Burrell, 506 N.W.2d 34, 37 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993); see State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989) (holding years of abuse supported downward departure for wife who shot her husband).

            Hernandez argues that he was entitled to a downward durational departure because the victims were the aggressors and he acted in self-defense when the victims threatened him.  See Minn. Sent. Guidelines II.D.2.a.(1) (mitigation may exist when victim is aggressor); Minn. Sent. Guidelines II.D.2.a.(5) (mitigation may exist when other “substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense”).  Hernandez also claims that a downward departure is justified because he has accepted responsibility for his actions and has shown remorse.  Although there may be circumstances when remorse is relevant to a durational departure, generally, remorse is relevant only to a dispositional departure.  Back, 341 N.W.2d at 275; State v. Bauerly, 520 N.W.2d 760, 762-63 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

The district court found that Hernandez’s version of the facts was not credible.  In denying a downward departure, the district court stated:

[Hernandez] argue[s] * * * that the victims, Reyes and Jasso, were aggressors in the incidents.  * * * [T]his court cannot make such a finding.  At the conclusion of the sentencing hearing this court did take with it several file documents for its review.  I listened carefully to the testimony.  I’ve reviewed each and every exhibit.  I reflected on your attorney’s arguments, as well as your own testimony.  Your motion for a downward departure based on mitigation, specifically aggression of victims, is denied.


The court also found that Hernandez purchased the knife used in the murders in order to gain authority or respect, rather than for protection purposes.  The court stated that the fact that Hernandez purchased the knife supported the conclusion that Hernandez “set everything into play that occurred” on the night of the incident.  

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.


Minn. R. Civ. P. 52.01; see State v. Lindsey, 473 N.W.2d 857, 859 (Minn. 1991) (applying Minn. R. Civ. P. 52.01 in a criminal proceeding).  It is not the province of the appellate courts to reconcile conflicting evidence.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  On appeal, if there is reasonable evidence to support the trial court’s findings of fact, a reviewing court will not disturb those findings. 

            Hernandez’s testimony is the only evidence that Jasso initiated the fight that led to his death.  No witnesses saw Jasso on top of Hernandez, and no one saw Jasso attack Hernandez.  The witnesses did confirm that Reyes swung at Hernandez after the initial fight with Jasso was broken up.  But the only visible injuries Hernandez sustained were two small abrasions by his collarbone and cheekbone.  In contrast, Reyes received eight stab wounds.   The district court’s finding that the victims were not the initial aggressors is not clearly erroneous.

2.         Hernandez argues that the district court violated his plea agreement by sentencing him to more than 26 years of actual time served.  At the plea hearing, Hernandez testified that he accepted the guilty plea petition as the plea agreement.  The plea petition says nothing about actual time served, but instead states “[t]hat the maximum penalty that the court could impose for this crime * * * is imprisonment for 40 years.”  Hernandez was sentenced to 476 months, which is four months less than forty years. 

            Hernandez contends that at the plea hearing, he agreed to no more than “26 years of actual time served.”  At the plea hearing, Hernandez’s counsel stated:

[I]t is the intention of the parties that my client would enter a plea to Count 1, intentional murder in the second degree, in the death of Arturo Reyes.  My client will then plead to Count 4, murder in the second degree, unintentional, regarding the death of Juan Jasso.  All remaining charges will be dismissed.  The only other agreement has to do with the order in which these deaths occurred.  That would be simply for the purposes of sentencing, which would be to keep the sentencing of Mr. Hernandez somewhere between 17 years and 26 years of actual time served.


Hernandez argues that this statement demonstrates that he agreed to no more than 26 years (which is 312 months) of actual time served, but he was sentenced to 476 months, which means that he must actually serve at least 317 1/3 months.

            The interpretation and enforcement of plea agreements are issues of law that this court reviews de novo.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). 

            This court has recognized that a defendant who pleads guilty in exchange for an agreed-upon sentence faces different consequences than a defendant who exchanges a guilty plea for the state’s recommendation of a certain sentence.  * * * [I]f the sentencing court rejects an agreement as to a defendant’s sentence, the defendant is entitled to withdraw the guilty plea.  If, conversely, the sentencing court rejects a mere recommendation made pursuant to an agreement, then the defendant may not withdraw the plea unless the defendant can establish either (a) that the defendant mistakenly believed he or she could withdraw the plea if the sentencing court rejected the recommendation, or (b) that there is some other ground for withdrawal.


Perkins v. State, 559 N.W.2d 678, 687 (Minn. 1997) (citations and quotation omitted).  The plea petition states:

[A]nything in the plea agreement as to sentence (or disposition) by the judge is not a condition of my entering my plea of guilty herein; it would be merely a recommendation not binding upon the judge who sentences me (or makes any disposition) upon my plea of guilty today.


In addition, the plea petition recognizes a maximum sentence of 40 years, which is consistent with the court-imposed sentence.  Hernandez has not established that he pleaded guilty in exchange for an agreed-upon sentence, and therefore, he is not entitled to an opportunity to withdraw his plea or to have his sentence modified.

3.         In his pro se brief, Hernandez argues that his constitutional rights were violated when the police failed to notify him of his right as a Mexican national to communicate with a consular post of Mexico under the Vienna Convention on Consular Relations.  The Vienna Convention, as ratified by the United States and Mexico, states that:

if [the arrestee] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.  Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.  The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.


Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, para. 1(b), 21 U.S.T. 77, 100-01.  To obtain relief under the Vienna Convention, the arrestee must establish prejudice by showing 

that he did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance to him * * *. 


United States v. Rangel-Gonzales, 617 F.2d 529, 533 (9th Cir. 1980); see also State v. Miranda, 622 N.W.2d 353, 356 (Minn. App. 2001) (no judicial remedy for violation of the Vienna Convention unless prejudice is demonstrated). 

            The district court found:

            In this instant case, it is undisputed that [Hernandez], a Mexican national, was not informed of his rights under the Vienna Convention until three days after his arrest on January 8, 2000.  [Hernandez] claims that had he been advised of his right to contact the Mexican Consulate at the time of his arrest, he would have done so immediately.  However, although [Hernandez] was informed of this right on January 11, 2000, he did not contact the Consulate until January 13, 2000.  [Hernandez] was offered the opportunity to contact the Consulate at the time he was notified of his rights under the Vienna Convention and declined.  The Mexican Consulate, once contacted by an arrestee, has a policy of informing the arrestee that he should not speak with investigative authorities without an attorney’s presence and advice, not to answer any questions asked in English, and to remain silent until he has consulted an attorney.


            In light of the circumstances, [Hernandez] has not established that he would have exercised his right to consul had he known of it.  Furthermore, [Hernandez] was read his Miranda rights at the time of his arrest, and initially asserted his right to counsel.  The Mexican Consulate would not have advised [Hernandez] to do differently.  After learning that both persons with whom he had been fighting had died, [Hernandez] said that he wished to make a statement.  Before doing so, [Hernandez] indicated that he understood his rights and that he waived them.  Although he was not specifically read the Miranda warning again, only a few minutes had elapsed since the first warning and he was asked if he understood his rights and that he did not have to speak with the investigators.  [Hernandez] indicated that he understood.


            Based on the foregoing, the Court finds that [Hernandez] has failed to establish that had he known of the right to consul, he would have acted to contact the Mexican Consulate.  The Court further finds that had [Hernandez] contacted the consulate at the time of his arrest, it is unlikely that the contact would have resulted in assistance to him.  Therefore, the Court finds [Hernandez]’s statement is admissible because the failure of law enforcement to advise him immediately of his rights under the Vienna Convention did not prejudice him.


            The record supports the court’s findings.  Hernandez offered no testimony explaining what he would have done differently if he had been made aware of his right to contact the Mexican Consulate.  There is no evidence that Hernandez had any trouble understanding the questions presented to him in English when the police questioned him.  Because Hernandez did not establish that he was prejudiced by the violation of the Vienna Convention, he was not entitled to relief.  Furthermore, Hernandez’s counseled guilty plea acted as a waiver of any constitutional claim he might have.  State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980).

            Hernandez also argues that the plea agreement specified that his sentences of 326 months and 150 months were to run concurrently, rather than consecutively.  But there is nothing in the record to support this contention.  Hernandez also claims that the denial of his request for a new attorney and a change of venue prejudiced him, but he does not explain how he was prejudiced, other than by “media hype and the possibility of a prejudiced jury.”  This court is not required to address allegations unsupported by argument or authority unless prejudicial error is obvious on mere inspection.  State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Because prejudicial error is not obvious, we do not address this claim.