P. v. Fisher
Filed 7/3/13 P. v. Fisher CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
PAUL ETAN FISHER,
Defendant and
Appellant.
G046459
(Super. Ct.
No. 07HF2332)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Robert R. Fitzgerald, Judge (retired judge of the
Orange Super. Ct. assigned by the
Chief Justice pursuant to Cal. Const. Art. VI, § 6), and Vicki Hix, Temporary
Judge (pursuant to Cal. Const. Art. IV, § 21). Affirmed as modified.
Sylvia Whatley Beckham,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Scott C. Taylor, Deputy
Attorneys General, for Plaintiff and Respondent.
Paul Etan Fisher is
currently serving a nine-year state prison sentence after pleading guilty to
various sex crimes, and after twice admitting he violated the terms of his
probation. Fisher contends the trial
court erred in sentencing. We correct a
minor error in the abstract of judgment, and affirm the judgment in all other respects.
FACTS
In August 2007, Newport
Beach police responded to a hotel regarding a report
of a missing 15-year-old girl. While an
officer talked to the girl’s mother in the lobby, the mother learned the girl
had returned to their room. The officer
and the mother went to the room and found the girl. The officer described the girl as appearing
“a little hung over†in that she smelled of alcohol, and had bloodshot eyes and
“disheveled†hair.
The girl initially said
she spent the night on “some lady’s couch.â€
But she later admitted she spent the night in a man’s room. The girl explained she had been very
intoxicated and could not remember everything about the previous night, but she
did recall waking up during the night and finding herself and the man naked and
in bed. He repeatedly kissed her, orally
copulated her, digitally penetrated her vagina, and had intercourse with
her. She never had sex before and had
not wanted to have sex with this stranger, but claimed to be “so
drunk . . . she was unable to push [him] off of her.â€
During a search with the
girl in tow, officers knocked on Fisher’s hotel room door. Fisher answered and the girl identified him
as the man who assaulted her. Fisher
told the officers the girl had knocked on his door around 3:00 a.m. She was
very intoxicated, had trouble standing, and had urinated in her clothing. Fisher said he invited the girl into his room
because he did not want her to be arrested.
He denied having any sexual contact with her. He did buy breakfast that included four
bloody Marys.
PROCEDURAL BACKGROUND
An information charged Fisher
with rape by intoxication (Pen. Code, § 261, subd. (a)(3); count 1),
intoxication (§ 288a, subd. (i); count 2), lewd act with a child 15 years
old or older and 10 years younger than himself (§ 288, subd. (c)(1); count
3), and unlawful intercourse with a minor (§ 261.5, subd. (d); count
4). Fisher eventually pleaded guilty to
all of the charged offenses.
As agreed in the
euphemistically referred to as a “deal with the devil,†the trial court, Judge
Fitzgerald, first sentenced Fisher to a total prison term of 11 years, 8
months, consisting of the upper term of eight years on count 1, plus one-third
of the midterm consecutive sentences of two years on count 2,
count 3, and one year on count 4. Judge
Fitzgerald then immediately recalled and suspended execution of that sentence
and placed Fisher on five years formal probation on various terms, including
one year in the county jail.
In November 2010, Fisher
admitted violating the terms of his probation. Judge Fitzgerald again sentenced
Fisher to a total prison term of 11 years, 8 months on the same terms as
before, again immediately recalled and suspended execution of that sentence,
and placed Fisher back on formal probation, with certain modifications,
including no alcohol consumption and an additional year in the county jail.
In November 2011, Fisher
again admitted violating his probation.
After a lengthy sentencing hearing
and after carefully considering the evidence and arguments of counsel,
Commissioner Hix, sentenced Fisher to a total prison term of nine years,
consisting of the midterm of six years on count 1, plus a full consecutive low
term of three years on count 2, and a concurrent term of one year on count
3. Commissioner Hix also stayed
punishment on count 4 pursuant to section 654.
now appealed.
DISCUSSION
Fisher asserts two
sentencing errors. First, he claims the
trial court relied on improper aggravating circumstances to impose the midterm
of six years on count 1. Second, he
argues the trial court created an unauthorized sentence by relying on section
667.6, subdivision (d) to impose a full low term consecutive sentence of three
years on count 2. In essence, Fisher
claims Commissioner Hix erred by imposing a nine-year sentence instead of the
agreed upon 11 years, 8 months sentence twice imposed and recalled by Judge
Fitzgerald.
As a threshold matter,
the Attorney General asserts Fisher expressly waived his right to appeal in the
plea agreement,
title="">[5] impliedly waived
his right to appeal by failing to object to the court’s sentencing choices at
the sentencing hearing (People v. Scott (1994)
9 Cal.4th 331, 356) and, in any event, his appeal is barred because he
failed to obtain a certificate of probable cause (§ 1237.5 and Cal. Rules of
Court, rule 8.304(b)). The Attorney
General is probably correct on some or all of these points. Nevertheless, we exercise our discretion to
consider the matter on the merits, if for no other reason than to forestall any
potential ineffective assistance of counsel claim.
With respect to count 1,
Fisher complains the court erroneously made dual use of the victim’s intoxication,
when considering her level of
intoxication as a basis for finding her particularly vulnerable, an
aggravating factor under California Rules of Court, rule 4.421. Fisher may be correct. Intoxication is an element of the crime of
rape by intoxication. But the court also
cited the victim’s age, an alternative basis for finding the victim
particularly vulnerable. Fisher responds
the victim’s age was already accounted for in the sentence imposed on count 3
for committing a lewd and lascivious act on a child. However, as the Attorney General points out,
age is not an element of rape by intoxication, and a single aggravating factor
is sufficient to support a sentencing choice.
(People v. Osband (1996) 13
Cal.4th 622, 728-729.)
Besides, even if there
were dual use error – so what? The
result was a six-year term rather than the agreed upon eight-year term on count
1. In other words, Fisher ended up with
a more favorable sentence, not a less favorable sentence. Thus, he cannot now complain. (People
v. Hester (2000) 22 Cal.4th 290, 295 [defendants who have received the
benefit of their bargain should not be allowed to “trifle
with . . . courtsâ€].)
With respect to count 2,
Fisher complains the trial court erroneously imposed the full term consecutive
sentence pursuant to section 667.6, subdivision (d). But that sentence was discretionary under
section 667.6, subdivision (c), which states in pertinent part, “
[i.e., one-third of the midterm], a full, separate, and consecutive term may be
imposed for each violation of an offense specified in subdivision (e)
[including rape by intoxication] if the crimes involve the same victim on the
same occasion.†Finally, the trial court
also identified other aggravating factors, any one of which supports the full
term consecutive sentence on count 2.
Hence, there was no error.
Furthermore, even if the
full term consecutive sentence was an error, again Fisher cannot now
complain. That is exactly the sentence
Fisher agreed to, and exactly the sentence previously imposed by Judge
Fitzgerald, twice. (People v. Vera (2004) 122 Cal.App.4th 970, 983 [criminal
defendant who receives benefit of bargain cannot renegotiate that bargain on
appeal].)
with the trial court (a chance at probation in exchange for a guilty plea), and
he received the benefit of that agreement.
Under these circumstances, any trial court would have been justified, or
perhaps even required, to impose the 11 year, 8 month sentence. (§ 1203.2, subd. (c);
Cal.4th 1081, 1087-1088.) Fisher
cannot avoid the more lenient sentence imposed which was well within the trial
court’s broad sentencing discretion.
DISPOSITION
The clerk of the
superior court is directed to correct the abstract of judgment to reflect the
conviction and the court’s sentencing decision on count 4 (§ 261.5, subd.
(d)), and send a copy of the amended abstract to the
THOMPSON,
J.
WE CONCUR:
O’LEARY, P.
J.
RYLAARSDAM,
J.
name="_ftn1" title=""> [1] The statement of facts is taken from the
preliminary hearing transcript.
name="_ftn2" title=""> [2] All further statutory references are to the
Penal Code.
