P. v. Fernandez
Filed 1/16/13 P.
v. Fernandez CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
FEDERICO
FERNANDEZ,
Defendant and Appellant.
B237670
(Los Angeles County
Super. Ct. No.
VA107182)
APPEAL
from a judgment of the Superior Court of
County, Lori A. Fournier, Judge. Affirmed with directions.
Juliana
Drous, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, and Baine P. Kerr, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
>
The trial court revoked Federico Fernandez’s probation and sentenced
him to the maximum period of confinement.
Fernandez appealed. We affirm and
order correction of the abstract of judgment.
BACKGROUND
At a
preliminary hearing on September 30, 2008, Edward Park
testified that on July 2, 2008 at about 1:00 a.m., he and a female companion got out of his car near Guppy’s
restaurant in Cerritos. A group of men “holler[ed]â€
at his companion, and he told them to stop.
The group ran toward Edward Park, one of the group, Fernandez, holding a
bottle behind his back. Workers at
Guppy’s came outside, including Chris Park.
The group ran up to Chris Park; Fernandez hit Chris Park over the head
with the bottle. Chris Park testified
that the resultant cut on his head required eleven stitches.
Working
at Guppy’s at the time of the incident, Victor Lee, an acquaintance of Edward
Park’s came outside and told Fernandez and the others to leave. The group yelled at Lee; soon Lee was
fighting on the ground with someone else.
Fernandez tried to jump on Lee.
Edward Park hit Fernandez. When a
member of the group retrieved a bat from a car, Fernandez grabbed the bat and
hit Edward Park with it, bruising and causing swelling to Edward Park’s hand
and shin. The group then left.
An
information filed October 15, 2008 charged Fernandez with three counts of
assault with a deadly weapon, in violation of Penal Code section 245,
subdivision (a)(1).
name="_ftnref1" title="">[1] Fernandez pleaded no contest
to one count on February 19, 2009. On June 1, 2009, the
trial court dismissed the two remaining counts, suspended the imposition of
sentence, and placed Fernandez on formal probation for 36 months. The terms of probation required Fernandez
(among other terms) to complete 240 hours of community service and 52 weeks of
anger management counseling, and to abstain from drinking alcoholic beverages.
On
April 12, 2010, the trial court preliminarily found Fernandez in violation of his
probation, because he had been held to answer in a second case. The court revoked probation and set a
probation revocation hearing to trail the second case. On November 18, 2010, Fernandez admitted that he had violated his probation,
and conditions, except that Fernandez waived all credits for time previously
served.
Eleven
months later, on October 18, 2011, the trial court again revoked Fernandez’s
probation, based on a probation officer’s report that Fernandez had been
arrested for driving under the influence, had not completed community service,
and had failed to enroll in the anger management program. At a hearing on November 21, 2011, the probation officer assigned to Fernandez testified that
Fernandez had not provided proof of completion of community service or anger
management. A Garden Grove police
officer testified that at 3:30 a.m. on June 8, 2011, he stopped Fernandez’s car because a lighted cigarette was thrown
out of the passenger window. The smell
of alcohol emanated from the vehicle; Fernandez, who was driving, acknowledged
he had been drinking. The officer
administered a field sobriety test and based on its results (including
Fernandez’s bloodshot, watery eyes, slurred speech, and unsteady gait), the
officer arrested Fernandez. A subsequent
blood test showed an alcohol level of .16.
Fernandez’s father testified that he drove Fernandez to the probation
department meetings, and that Fernandez was unable to find appropriate anger
management classes in Orange County and did not attend classes in Los Angeles County. The father also took Fernandez to register
for Caltrans work but not to perform the work.
The
court concluded: “Mr. Fernandez, you are
a 24-year-old man who apparently, if you’re not being driven somewhere by your
parent, you’re getting into trouble. [¶] You since being placed on probation in
February of 2009 . . . , you have had a number of probation violations. This is not the first. In June of 2009 you were again found in
violation. That was your first
violation. Then in November of 2010,
another violation. And they seem to be
of increasing seriousness. And they are
troubling to me. You were told February
19, 2009, all of the conditions of your probation. One of them was: do not drink any alcoholic beverages. Complete the anger management and complete
community service or Cal Trans [sic].
[¶] Judge O’Connel re-advised you
on June 1, 2009, to do all of the same things.
And when you were found in violation on November 18, 2010, for the
violation of . . . section 32, you were given another opportunity
at probation to prove that you’re an appropriate candidate for probation. That’s what probation is about, to show that
you should not be going to state prison.
You got an extreme gift when you were originally given probation for
taking a bat to someone’s head and causing a large laceration on the right side
of their neck. And instead of doing what
you’re supposed to do, you continue to commit other crimes, including the
latest driving under the influence incident where whether or not you had a rising
blood alcohol, whatever the issue is, you were drinking, which you were
specifically advised not to do. [¶] So I find that you are in violation of
probation based on my review of the court file, the minute orders, the
transcripts, the officer’s testimony as well as the probation officer’s
testimony.â€
The
court added: “I did weigh the factors in
aggravation as opposed to the factors in mitigation. And to be clear, I find that . . . the
aggravating factors outweigh the mitigating
factors . . . . [¶] . . . Rules
of Court[, rule] 4.432[ ](b) factors relating to the defendant: The defendant has engaged in violent conduct
that indicates a serious danger to society.
[¶] Factor 2, the defendant’s
prior convictions as an adult are numerous or of increasing seriousness. [¶]
Factor 4, the defendant was on probation or parole when the crime was
committed. [¶] And Factor 5, defendant’s prior performance
on probation was unsatisfactory.
[¶] As to factors relating to the
crime, the crime that he was convicted of . . . involved great violence, great
bodily harm, threat of bodily harm, or other facts disclosing a high degree of
cruelty, viciousness or callousness.
[¶] The defendant was armed or
used a weapon at the time of the commission of the crime. [¶] I
didn’t find any factors in mitigation.â€
The
court sentenced Fernandez to the maximum term of four years in state prison for
a violation of section 245, subdivision (a)(1), and among other terms, imposed
a $40 court security fee pursuant to section 1465.8. Fernandez filed this
Fernandez argues that the trial
court abused its discretion when it imposed the high term of four years in
state prison. This claim fails.
At
the hearing, Fernandez made no objection to the court’s imposition of the high
term or its stated reasons for the sentence.
“[C]laims deemed waived on appeal involve sentences which, though
otherwise permitted by law, were imposed in a procedurally or factually flawed
manner.†(People v. Scott (1994) 9 Cal.4th 331, 354.) When, as here, a defendant “‘argues only that
the court exercised its otherwise lawful authority in an erroneous manner under
the particular facts . . . [t]raditional objection and
waiver principles encourage development of the record and a proper exercise of
discretion in the trial court.’†(
which the trial court exercises its sentencing discretion and articulates its
supporting reasons cannot be raised for the first time on appeal.†(Id. at
p. 356.)
In
any event, we note that the trial court did not abuse its discretion. The court found six factors in aggravation,
and no mitigating circumstances. The
existence of only one aggravating circumstance is sufficient to support
imposition of the upper term. (
813.) Even if we were to consider and
decide in his favor all of Fernandez’s specific challenges to the trial court’s
findings on the six aggravating factors, ample circumstances in aggravation
would remain. Fernandez has not
demonstrated that the sentence was arbitrary or irrational. (See People
v. Lamb (1988) 206 Cal.App.3d 397, 401.)
Thus, he has not shown that there is a reasonable probability that his
counsel’s failure to object prejudiced him; Fernandez, therefore, has also
failed to demonstrate ineffective assistance of counsel. (Strickland
v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
Respondent
concedes that the trial court erred in ordering Fernandez to pay a $40 court
security fee under section 1465.8, because at the time of Fernandez’s no
contest plea in February 2009, the fee was $20.
We therefore order that the abstract of judgment be modified to reflect
a court security fee of $20.
name="_ftnref3" title="">[3]
DISPOSITION
The
trial court is ordered to correct the abstract of judgment to reflect a court
security fee of $20, and to forward a corrected certified copy to the
Department of Corrections and Rehabilitation.
In all other respects, the
judgment is affirmed.
NOT
TO BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J.
CHANEY,
J.
name="_ftn1" title="">[1] All subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2] Fernandez pleaded no contest to a misdemeanor charge in the second
case.
