Filed 2/26/15 P. v. Rosales CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                              B254106

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA414335)
         v.

ROLANDO ROSALES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Anne H. Egerton, Judge. Modified with directions and, as modified, affirmed.


         Azar Elihu, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Yun K. Lee, Peggy Z. Huang and Nathan Guttman, Deputy Attorneys General,
for Plaintiff and Respondent.
                                        INTRODUCTION
       A jury found defendant and appellant Rolando Rosales guilty of crimes arising out
of his physical assault of his former wife and son. On appeal, defendant contends that the
trial court’s characterization of his crimes as ones of “violence” is a ground for reversal.
Then, based on defendant’s characterization of his crimes as not very serious, he
contends that the trial court abused its discretion by refusing to reduce them to
misdemeanors. We reject these contentions and affirm the judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual Background.
       Rosio R. and defendant separated in 2003. They had three children, including
Rolando, Jr., and Sebastian.1 On January 25, 2005, Rosio was living with her mother,
Dolores Rodriguez. On that day, defendant broke a window at the house and threatened
Rosio, who was injured by the broken glass.
       Years later, on June 9, 2013, Sebastian was given permission to go to his paternal
grandparents’ house. Instead, he went to defendant’s house, although he wasn’t allowed
to see his father unsupervised. Dolores, Rosio, and Rolando, Jr., went to get Sebastian.
When they arrived, defendant verbally abused them. He picked up a potted plant and
tried to throw it at Dolores, who he pushed to the ground. Rosio told defendant not to
touch her mother, but he pushed Rosio and punched her face, knocking Rosio to the
ground. To stop defendant, Rolando, Jr., hit defendant once. Defendant put Rolando, Jr.,
in a headlock and punched him about four times.
II.    Procedural Background.
       On January 16, 2014, a jury found defendant guilty of count 1, felony corporal
injury to a child’s parent resulting in a traumatic condition (Pen. Code, § 273.5,
subd. (a)),2 and of count 2, felony assault by means likely to produce great bodily injury
(§ 245, subd. (a)(4)). The jury deadlocked on count 3 for misdemeanor battery of

1
       To avoid confusion and for consistency, we use first names.
2
       All further undesignated statutory references are to the Penal Code.

                                              2
Dolores, and the trial court declared a mistrial on that count.
       After defendant waived a jury trial on prior conviction allegations, he admitted
having prior convictions for forced oral copulation (§ 288a, subd. (c)(2)) and for petty
theft (§ 666). Defendant filed, under People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero), a motion to strike his prior conviction for forced oral copulation.
The trial court denied it.
       On January 31, 2014, the trial court selected count 2 as the principal count and
sentenced defendant to the upper term of four years, doubled to eight based on the strike.
The court sentenced defendant to a consecutive one year doubled to two years on count 1.
His total sentence therefore was 10 years in prison.
                                          DISCUSSION
I.     The Trial Court Did Not Misstate the Law or Commit Misconduct.
       Before denying the Romero motion, the trial court recounted the facts of the “very
serious [prior] crime” wherein defendant drove the victim, a drug addict, to a park under
the pretext they would get high. Defendant threatened to kill the victim, punched her
twice, put his fingers in her anus, and forced her to orally copulate him. The court also
recounted the facts of the current crimes, including that defendant put his 14-year-old son
in a headlock and punched him repeatedly. The court then said, “These [prior and current
crimes] are both crimes of violence.” Because the court’s statement mischaracterized his
crimes, defendant contends that “reversal” is required. The contention is meritless.
       This alleged mischaracterization, defendant appears to contend, led the trial court
to abuse its discretion in ruling on his Romero motion. (See generally People v. Carmony
(2004) 33 Cal.4th 367, 374 [we review a trial court’s ruling on a Romero motion for
abuse of discretion]; § 1385.) When ruling on a Romero motion, the court must consider
whether, in light of the nature and circumstances of the defendant’s present felonies and
prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17

                                              3
Cal.4th 148, 161.) Here, the court, when it characterized defendant’s prior and current
crimes as ones of “violence” was speaking generally. The court was not specifically
referring to the violent crimes delineated in section 667.5, subdivision (c). The court’s
meaning is quite clear when the statement is placed in the context of the court’s recitation
of the facts underlying defendant’s crimes; namely, he punched, “violently,” both his oral
copulation victim and his young son. The court was therefore commenting on the
“nature” of defendant’s crimes, a factor relevant to evaluating whether to strike a prior
conviction.
       The record, moreover, shows that the trial court carefully considered the factors in
Williams before denying defendant’s motion. The court recounted the facts of
defendant’s prior and current crimes and noted that, in terms of defendant’s character and
prospects, his employer said that defendant was a good employee, and his parole agent
said that defendant was doing well, “at least recently,” on parole. The court also
reviewed defendant’s criminal history, which included a sustained juvenile petition for
robbery; felony second degree burglary; felony grand theft person; and misdemeanor
assault on a cohabitant. The court’s methodical review of these factors demonstrates that
the court was neither “unaware of the law” nor “irrational.”
       Although defendant’s opening brief on appeal appears to question the validity of
the trial court’s ruling on his Romero motion, defendant, in his reply brief, appears to
argue that he cited the court’s denial of the Romero motion only to show the court’s bias.
Judicial misconduct, defendant asserts in the reply brief, is the real issue. Judicial
misconduct, however, was not adequately raised in the opening brief. It is therefore
waived. (Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th
1277, 1292, fn. 6 [“Arguments presented for the first time in an appellant’s reply brief are
considered waived”]; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [issues should be
set forth under separate headings and supported by argument and citation to authority];
see People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [ineffective assistance of counsel
argument raised for the first time in the reply brief was waived].)



                                              4
       It is also meritless. The claim of judicial misconduct is premised on the trial
court’s alleged lack of impartiality, exemplified in the court’s belief defendant’s crimes
were violent. (See generally People v. Sturm (2006) 37 Cal.4th 1218, 1233 [a trial court
“ ‘commits misconduct if it persistently makes discourteous and disparaging remarks to
defense counsel so as to discredit the defense or create the impression that it is allying
itself with the prosecution’ ”].) We have already rejected defendant’s argument that the
court mischaracterized defendant’s crimes. We similarly reject the notion that the court,
by referring to defendant’s crimes as violent, “dramatized” or “sensationalized”
defendant’s current crimes in its statements. What the trial court said was this: “Now, in
my opinion, putting aside murders and manslaughter, sex crimes, where the victim is
forced to do something, by force or fear, are among the most very serious of the strikes,
because it’s not only a physical assault on the person, it is an assault on the person’s
dignity and self-worth and everything else, and to pick up a stranger, albeit some sad
addict who’s hoping to get drugs, and then to force her to give him a blowjob––pardon
my blunt language––having punched her and pulled her hair, that’s a very, very serious
crime, in my opinion. [¶] So that’s factor one. That clearly militates against
[defendant’s] request.”
       Neither this nor any other statement made by the trial court shows either that the
trial court engaged in misconduct or that its sentencing decisions were anything but
impartial, reasoned, and within its discretion.
       Finally, although it is unclear how it is relevant to any claim of judicial
misconduct, defendant also appears to contend that his current crimes must be either
serious or violent felonies to warrant sentencing under the Three Strikes law. He is
wrong. To be sentenced under that law, the defendant must be convicted of a felony
(§§ 667, subds. (b), (c), 1170.12, subd. (a)) and have one or more qualifying prior serious
or violent felonies (§ 667, subd. (e)). (See generally §§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).) Defendant was convicted of two felonies. Those convictions and his
prior strike conviction therefore made him eligible for a doubling of his terms.



                                              5
II.    The Trial Court Did Not Abuse Its Discretion by Refusing to Reduce
Defendant’s Felonies to Misdemeanors.
       At the close of the prosecution’s case, defendant moved to have his current crimes
reduced to misdemeanors, under section 17, subdivision (b).3 The trial court denied the
motion, and defendant now contends that the court abused its discretion in doing so. We
disagree.
       Section 17, subdivision (b), “authorizes the reduction of ‘wobbler’ offenses—
crimes that, in the trial court’s discretion, may be sentenced alternately as felonies or
misdemeanors—upon imposition of a punishment other than state prison (§ 17(b)(1)) or
by declaration as a misdemeanor after a grant of probation (§ 17(b)(3)).” 4 (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) Whether to reduce
a wobbler is within the sentencing court’s discretion. (Id. at pp. 977-978.) Factors
relevant to that sentencing decision include the nature and circumstances of the offense,
the defendant’s appreciation of and attitude toward the offense, or his traits of character
as evidenced by his behavior and demeanor at the trial. (Id. at p. 978.)
       Characterizing the injuries inflicted on defendant’s victims as a “tiny harm” and
not “serious,” defendant contends that the trial court abused its discretion by refusing to
reduce his felonies to misdemeanors. The trial court, however, was well within its
discretion to find that the nature and circumstances of the offenses militated against the
reduction. The court found: “You know, if he had a spotless record––and that’s not the
only issue, obviously, the facts of this case are the primary issue, but in terms of the 17(b)
reduction, it’s appropriate for the court to consider the criminal history and he’s got
a substantial one, including this strike not too long ago that involved forcing someone to

3
       Defendant states in the reply brief that the trial court misapplied the law, but we
interpret this as another way of stating that the court abused its discretion.
4
       Defendant was found guilty of corporal injury to a child’s parent resulting in
a traumatic condition (§ 273.5, subd. (a)), and of assault by means likely to produce great
bodily injury (§ 245, subd. (a)(4)). Because those crimes are punishable by imprisonment
in county jail not to exceed one year or by imprisonment in the state prison, they are
“wobblers.”

                                              6
do something, really, against their will. [¶] And so, certainly, on count 2, putting
a 14-year-old––and I’ve seen the 14-year-old, he’s not that big, I’ve seen [defendant],
he’s pretty big––putting him in a headlock and punching him repeatedly, or even once in
the rib area, that can cause great bodily injury. And as far as Rosio R., she testified she
did have some redness to her jaw, which the officer confirmed, so it’s going to be up to
the jury to decide whether that meets the requirements of a traumatic condition.” (Italics
added.) We cannot say that the court abused its discretion where, as here, there was
evidence that defendant hit his son and former wife.
         We also reject any suggestion that the trial court relied improperly on defendant’s
prior criminal history to deny the motion. The court did discuss that criminal history but
expressly noted that defendant’s current crimes are “the primary issue.”
         Nor do the cases defendant cites support his argument. People v. Feyrer (2010)
48 Cal.4th 426, 435,5 considered whether the defendant’s prior plea of no contest to
felony assault precluded a subsequent reduction of the offense to a misdemeanor under
section 17, subdivision (b)(3). The case before us, however, does not involve a plea
agreement. It involves sentencing after a jury verdict.
         Alvarez is also distinguishable. There, officers saw the defendant skateboarding
on the wrong side of the street. (Alvarez, supra, 14 Cal.4th at p. 973.) The defendant had
methamphetamine. The defendant was found guilty of violating Health and Safety Code
section 11377, subdivision (a). Alvarez found that the trial court acted within its
discretion to reduce the crime to a misdemeanor. The court also noted that the
defendant’s four prior burglary convictions were old and nonviolent. In contrast, the trial
court here noted that violence characterized defendant’s prior and current crimes.




5
         Superseded by statute as stated in People v. Park (2013) 56 Cal.4th 782, 789,
fn. 4.

                                               7
       We therefore conclude that the trial court was well within its discretion not to
reduce defendant’s current crimes to misdemeanors.
III.   Abstract of Judgment.
       The abstract of judgment incorrectly states that defendant was convicted by
“plea.” Defendant was convicted by a jury. Accordingly, the abstract must be modified.




                                             8
                                    DISPOSITION
      The clerk of the superior court is directed to modify the abstract of judgment to
note that defendant and appellant was convicted by a jury and not by plea. The modified
abstract of judgment shall be forwarded to the Department of Corrections. The judgment
is affirmed as modified.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                              ALDRICH, J.

We concur:




             KITCHING, Acting P. J.




             LAVIN, J.*




*
      Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                            9
