P. v. Hernandez
Filed 6/20/13 P. v. Hernandez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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.
RIGOBERTO
RICARDO HERNANDEZ, JR.,
Defendant and Appellant.
G047071
(Super. Ct.
No. 11HF0141)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Gregg L. Prickett, Judge. Affirmed.
Meldie Moore, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
* * *
A jury
convicted defendant Rigoberto Ricardo Hernandez, Jr., of felony driving under
the influence of alcohol (Veh. Code, § 23152, subd. (a) (DUI))
and felony driving with a blood-alcohol concentration of .08 percent or more (§
23152, subd. (b)) and, as to both offenses, found true the allegation defendant
had a blood alcohol-concentration of .20 percent or more (§ 23538, subd.
(b)(2)). The trial court found true the
allegations defendant had suffered a prior felony conviction for DUI within 10
years (§ 23550, subd. (a)), and defendant had served three prior prison terms
but did not remain free of custody for a period of five years prior to the
commission of the above felony offenses (Pen. Code, § 667.5, subd. (b)). Defendant also pleaded guilty to misdemeanor
driving on a suspended license (§ 14601.2, subd. (a)).
Defendant
was sentenced to a total term of five years in prison consisting of the
two-year midterm for DUI, plus three consecutive one-year prison priors, plus a
separate consecutive 180-day sentence for driving on a suspended license. He filed a timely appeal.
We appointed
counsel to represent defendant on
appeal. While not arguing against
defendant, counsel filed a brief which fully set forth the facts of the case
and advised us there were no arguable issues on appeal. The brief included a review of the record and
consideration of possible arguments, but concluded none of those arguments had
any chance of success.
We informed
defendant he had 30 days to file written
argument on his own behalf. Three
months have passed and we have received no such argument. We have reviewed the record of defendant’s
trial and the brief filed by defendant’s counsel, and find ourselves in
agreement with defendant’s counsel:
There is no arguable error in the proceedings against defendant. (People
v. Wende (1979) 25 Cal.3d 436.)
FACTS
About 4:30 p.m. on November 25, 2010, California Highway Patrol Officer
Staab observed a car pull over to the right shoulder ahead of him on the
northbound I-5 freeway. As Staab drove
past, he saw defendant open the driver door and stagger out of the car with wet
pants. Staab did not see anyone else in
the car.
Unable to
pull over due to traffic, Staab drove to the next off-ramp, exited the freeway,
turned back around headed south, and reentered approximately two minutes later
at an on-ramp below where he saw the car pull over. As Staab drove toward the area, he observed
defendant walking towards him about 30 yards from the car.
Staab spoke
to defendant and immediately noticed a very strong odor of alcohol and
urine. He also observed defendant had
red eyes. When asked for his identification,
defendant handed Staab his bank card.
Defendant denied drinking but admitted driving and said the car had
broken down.
Staab began
a DUI investigation by asking defendant more questions. Defendant then admitted he had a couple of
beers between 8:00 a.m. and 2:00 p.m.
Defendant failed the field sobriety tests and his blood-alcohol
concentration was measured at .244 and .238 percent on the preliminary alcohol
screening device.
Staab
arrested defendant for DUI. Defendant
was searched and the keys to the car and a cell phone were found in his
pocket. Test results later indicated he
had a blood-alcohol concentration of .20 percent. The forensic scientist extrapolated back to a
blood-alcohol level of .22 and .23 percent at the time of driving.
Defendant’s
71-year-old uncle testified he was with defendant on the day in question, and
he was the one who was driving the car on the freeway, not defendant. He said the car broke down, and he pulled
over to the shoulder. Because the uncle
did not have a cell phone, he walked away to find help, leaving defendant in
the car. When he returned 30 to 40
minutes later, defendant and the car were gone.
DISCUSSION
We have carefully
scrutinized the trial record. Viewing
the evidence in the light most favorable to the verdict, as we are required to
do (People v. Young (2005) 34 Cal.4th
1149, 1180), we conclude there was plenty of reasonable, credible, and solid
evidence to support the verdict beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
In fact, the case against defendant was overwhelming.
Appellate counsel
considered a potential juror misconduct issue.
According to the clerk’s transcript, at some point during jury selection
defense counsel told the court her client overheard a prospective juror say, “I
would find this guy guilty so we could go home.†The parties agreed not to use this juror and
voir dire continued. The reporter’s and
clerk’s transcripts are silent as to how that juror was excused, and the reporter’s
transcript does not contain anything about this incident.
The juror misconduct
here, if any, was appropriately addressed by promptly dismissing the juror in
question. Since the juror who made the
offending statement was dismissed by agreement of the parties, no hearing was
required to determine if there was good cause to discharge that juror. Furthermore, there is nothing in the record
which indicates any other juror overheard the statement. Finally, we note defense counsel did not move
for a mistrial and, as a result, any
potential claim of juror misconduct is forfeited. (People
v. Russell (2010) 50 Cal.4th. 1228, 1250.)
For these same reasons
we perceive no “good cause†to support a posttrial petition for access to juror
contact information (Code of Civ. Proc., § 237, subd. (b)) and thus no
deficiency in defense counsel’s failure to file any such petition.
Appellate counsel
considered three potential sentencing issues but we find no sentencing
errors. First, the prison prior
enhancements were correctly imposed. The
record amply supports the trial court’s finding “defendant has been convicted
[on] three separate occasions of felony offenses, sentenced to prison, and has
not been . . . free for a continuous five-year
period . . . . â€
As to the 1995 and 1996 prior convictions, defendant was discharged from
parole on July 5, 2002 and September 3, 2008, respectively. As to the 2005 prior conviction, while
defendant was likely still on parole at the time he committed the current
offenses, that fact does not bar imposition of a separate one-year enhancement
in this case. (In re Jessup (1980) 109 Cal.App.3d 161, 163-164.)
Second, with respect to
the possibility the trial court abused its discretion by refusing to place
defendant on probation, we note defendant’s prior conviction history rendered
him presumptively ineligible for probation “[e]xcept in unusual cases where the
interests of justice would best be served if the person is granted probation
. . . .†(Pen. Code, §
1203, subd. (e).) No such unusual
circumstances are present here. As the
trial court noted defendant has at least five prior DUI convictions, and in
three of those cases he was sentenced to state prison. These facts alone support the trial court’s
decision to deny probation.
Third, with respect to
the possibility the trial court abused its discretion by imposing a consecutive
rather than a concurrent sentence for driving on a suspended license, while the
crimes were not “committed at different times or separate places†(Cal. Rules
of Court, rule 4.425(a)(3)), the “crimes and their objectives were
predominantly independent of each other†(Cal. Rules of Court, rule
4.425(a)(1)) and nothing in the record indicates “a single period of aberrant
behavior†(Cal. Rules of Court, rule 4.425(a)(3)). Under these circumstances the trial court was
well within its discretion to sentence consecutively.
We find nothing about
the conduct of this trial or the sentencing of defendant that was
improper. The trial was fairly conducted
and the trial court sentenced appropriately.
Appellate counsel was right:
there are no issues on appeal.
DISPOSITION
The judgment
is affirmed.
THOMPSON,
J.
WE CONCUR:
O’LEARY, P.
J.
MOORE, J.
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