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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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,                                         G047071

         v.                                                            (Super. Ct. No. 11HF0141)

RIGOBERTO RICARDO HERNANDEZ,                                           OPINION
JR.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange 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.


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               A jury convicted defendant Rigoberto Ricardo Hernandez, Jr., of felony
driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) (DUI))1 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.)



 1   Unless otherwise indicated all subsequent statutory references are to this code.


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                                          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.

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                                       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

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continuous five-year period . . . . ” 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.




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                                  DISPOSITION


            The judgment is affirmed.


                                            THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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