Filed 9/20/13 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 relying on opinions not certified for
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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,                                         G047439

              v.                                                       (Super. Ct. No. 11CF3348)

OSCAR PAZ HERNANDEZ,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
                   Gail Ganaja, 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, Charles C. Ragland,
Deputy Attorney General, for Plaintiff and Respondent.


                                          *                  *                  *
              A jury found defendant Oscar Paz Hernandez guilty of felony hit and run
with permanent injury (Veh. Code, § 20001, subds. (a), (b)(2)). The trial court denied
probation and sentenced him to the middle term of three years. The court stated it had
seriously considered imposing the four-year upper term because of the catastrophic
injuries inflicted and defendant’s inexcusable conduct in leaving the victim. The court
based its sentencing decision on “the nature, seriousness and circumstances of the
crime . . . the vulnerability of the victim upon being left at the scene by [defendant].
And . . ., the incalculable physical and emotional injury inflicted on the victim.”
Defendant’s appeal raises a single issue: did the trial court abuse its discretion by failing
to either grant probation or impose the lower term of two years. We reject defendant’s
contention and affirm the judgment.
              The accident occurred early in the morning when defendant rear ended his
victim’s car. The impact was severe and the victim was seriously and permanently
injured. Defendant left the scene of the accident, leaving the unconscious victim’s
vehicle in the fast lane, facing oncoming traffic.


                                       DISCUSSION


              Penal Code section 1170, subdivision (b), provides as pertinent: “When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the choice of the appropriate term shall rest within the sound discretion of the
court. . . . The court shall select the term which, in the court’s discretion, best serves the
interests of justice. The court shall set forth on the record the reasons for imposing the
term selected . . . .” Similarly, the court must state its reasons for denying probation.
(Cal. Rules of Court, rule 4.406(b)(2); see People v. Golliver (1990) 219 Cal.App.3d
1612, 1616-1617.)



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              Defendant argues the court failed to satisfy these requirements “because the
reasons cited by the court (1) were inseparable from the crime for which appellant was
convicted . . .; (2) were based on an erroneous assumption of law, i.e., that appellant’s
criminal behavior caused the victim’s serious injuries; (3) and appeared to be motivated
by the court’s antipathy toward the available sentence range provided by the statute.” We
disagree.
              In denying probation, the court stated it relied on “the nature, seriousness
and circumstances of the crime. . . . [T]he vulnerability of the victim upon being left at
the scene by [defendant]. And . . ., the incalculable physical and emotional injury
inflicted on the victim.” After causing a substantial crash, defendant left the victim,
unconscious in a car facing oncoming traffic, thus leaving him vulnerable to further
injury should another vehicle crash into him. This additional vulnerability was not
caused by the crash but by defendant’s fleeing from the scene. Also, the record does not
disclose how long it took to provide the victim with medical care but had defendant
immediately reported the accident, medical care would have been provided sooner which
might have lessened the extent of the victim’s injuries. These factors do not qualify as
being, in defendant’s words, “inseparable from the crime for which appellant was
convicted.” In stating the three-year mid-term sentence, the court noted the
“abandonment of the victim upon the freeway shows a high degree of callousness.” The
court also considered the probation report, where defendant, who was subject to
deportation, was quoted as stating, “‘I will come back anyway because my kids are
here.’” Thus defendant stated, in effect that if he were granted probation, he would
commit another illegal act.
              We recognize that the court cannot deny probation based on an element of
the crime. (People v. Parrott (1986) 179 Cal.App.3d 1119, 1124-1125.) But the court
did not do so. We are therefore satisfied the court complied with the requirements of
Penal Code section 1170, subdivision (b), and California Rules of Court, rule 4.406. The

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court did not act arbitrarily or capriciously, as defendant charges, it carefully considered
the circumstances of the crime and its results.


                                      DISPOSITION


              The judgment is affirmed.



                                                  RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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