Filed 5/16/17 P. v. Fauss CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

DEREK RANDALL FAUSS,

Defendant and Appellant.
D070641



(Super. Ct. No. SCN346676)

APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Derek Randall Fauss's appointed appellate counsel has filed a brief asking this court to independently review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
One night in June 2015 Fauss came out of the store of an Oceanside gas station while smoking a cigarette. Nearby, taxi driver Donald M. was standing next to the driver's side of his cab filling the gas tank. Donald thought Fauss was smoking too close to his cab and putting everybody at the gas station in danger, so he asked Fauss to move away or stop smoking.
Fauss responded by saying he was far enough away and calling Donald an idiot, but then started walking away while angrily and loudly cursing at Donald. Donald angrily cursed back at Fauss. Fauss, who was very agitated, responded by turning around and charging toward Donald from in front of Donald's car.
When Fauss charged toward him, Donald grabbed pepper spray from a compartment on the inside of the open driver's door of his taxi cab because he felt threatened and thought Fauss was going to attack him. Fauss attempted to strike Donald by swinging his hand at him, and Donald sprayed him with the pepper spray.
After Donald sprayed him, Fauss tried to tackle Donald. Donald defended himself by wrapping his arms around Fauss with Fauss's head on Donald's right shoulder. Donald then felt a sharp pain in the side of his chest. Donald testified it felt like he had been "stuck with an ice pick." Donald released Fauss and fell down on his back. A woman pulled Fauss away from Donald and said, "It's not worth it." Donald asked Fauss, "Did you stab me?" Fauss replied, "Yeah. You pepper sprayed me."
After someone led Fauss away, Donald stood up and went into the store to ask somebody to call 911. Donald spoke to the police officers who responded, and an emergency medical technician placed gauze on Donald's wound. Although he was experiencing shortness of breath, Donald did not feel lightheaded and insisted on driving himself to the hospital. He was later transferred to another medical facility. Donald had a punctured lung and received three staples for the wound.
An Oceanside Police Department officer who responded to the incident found Fauss less than a quarter-mile away from the gas station. Fauss appeared to be intoxicated, slurred his speech, and smelled of alcohol. The officer detained Fauss but did not ask him any questions. Fauss told the officer he had pulled a knife because he had been pepper sprayed. Another officer arrived and Fauss was arrested.
B. Procedural Background
In August 2015 Fauss was charged with one felony count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). It was alleged that during the commission of the assault Fauss (1) personally used a dangerous or deadly weapon, a knife, within the meaning of section 1192.7, subdivision (c)(23); and (2) personally inflicted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a).
A jury convicted Fauss of assault with a deadly weapon and found to be true the allegation that he personally used a dangerous or deadly weapon within the meaning of section 1192.7, subdivision (c)(23). The jury was unable to reach a unanimous verdict as to the great bodily injury allegations under sections 1192.7, subdivision (c)(8) and 12022.7, subdivision (a). The court declared a mistrial with respect to those two allegations, which were dismissed at the prosecutor's request.
On May 10, 2016, the court sentenced Fauss to the upper term of four years in state prison for his conviction of assault with a deadly weapon. The court granted him a total of 57 days of custody credit (29 actual days in local custody plus 28 days under section 4019). The court imposed a $1,200 restitution fine (§ 1202.4, subd. (b)), plus a suspended $1,200 parole revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550.1.). Fauss filed his timely notice of appeal on July 6, 2016.
DISCUSSION
Fauss's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the proceedings below and indicating he was unable to find any reasonably arguable issues for reversal or modification of the judgment on appeal. Fauss's counsel has identified the following five issues that "might arguably support the appeal" (Anders, at p. 744): (1) "Did the court order proper fines and fees?"; (2) "Did the court properly deem [Fauss] presumptively ineligible for probation based on the jury's finding that he personally used a weapon?"; (3) "Did the court properly find that no unusual circumstances favored a grant of probation where, by statute, it should otherwise be presumptively denied?"; (4) "Did the court abuse its discretion in finding that aggravating factors outweighed mitigating ones such that it imposed the upper term?"; and (5) "Did defense counsel render ineffective assistance by submitting support letters from several different people that appeared to be cut-and-paste copies of each other?"
We granted Fauss permission to file a brief on his own behalf. He did not do so.
A. Analysis
1. Fines and fees
Our review of the record discloses no reasonably arguable appellate issue with respect to the court's imposition of fines and fees. The $1,200 restitution fine imposed by the court and mentioned by Fauss's appellate counsel is authorized by section 1202.4, subdivision (b), which provides in part that "[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine." Subdivision (b)(1) of that section provides that "[t]he restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense." The subdivision further provides that where (as here) the defendant is convicted of a felony, the restitution fine shall be not less than $300 and not more than $10,000. (§ 1202.4(b)(1).) Here, the court acted well within its discretion in setting the amount of the fine at $1,200.
The court also properly imposed and suspended the $1,200 parole revocation restitution fine. Section 1202.45, subdivision (a) provides that "[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." Subdivision (c) of that section provides that this fine "shall be suspended unless the person's parole . . . is revoked." Here, the court properly set the amount of the parole revocation restitution fine at $1,200, the same amount as the restitution fine it imposed under subdivision (b) of section 1202.4 as required by section 1202.45, subdivision (a), and the court properly suspended the parole revocation restitution fine pursuant to subdivision (c) of section 1202.45.
The $40 court operations assessment imposed by the court is authorized by section 1465.8, subdivision (a)(1), which provides in part that "[t]o assist in funding court operations, an assessment of [$40] shall be imposed on every conviction for a criminal offense."
The $30 conviction assessment imposed by the court is authorized by Government Code section 70373, which provides in part that "[t]o ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each . . . felony."
Last, the $154 criminal justice administration fee imposed by the court is authorized by Government Code section 29550.1, which provides in part that "[a]ny . . . local arresting agency whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person."
2. Fauss's ineligibility for probation
Our review of the record also discloses no reasonably arguable appellate issue with respect to the court's findings that Fauss was presumptively ineligible for probation and that this is not an unusual case in which the interests of justice would best be served if he were granted probation. Section 1203, subdivision (e)(2) provides that, "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [¶] . . . [¶] [a]ny person who used . . . a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted." Here, the jury convicted Fauss of assaulting Donald with a deadly weapon in violation of section 245, subdivision (a)(1), and it found to be true the related allegation that he personally used a dangerous or deadly weapon─a knife─within the meaning of section 1192.7, subdivision (c)(23). Under subdivision (e)(2) of section 1203, as the court properly found, Fauss was presumptively ineligible for probation because he used a deadly weapon when he assaulted Donald. Thus, as the court also properly found, Fauss was not entitled to a grant of probation unless this was an unusual case in which the interests of justice would best be served if he were granted probation. (See ibid.)
A trial court's determination of whether a particular criminal case is an "unusual case[] where the interests of justice would best be served if the person is granted probation" within the meaning of subdivision (e)(2) of section 1203 is governed by rule 4.413. Rule 4.413(b) provides that "[i]f the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' . . . the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome." Rule 4.413(c) ("Facts showing unusual case") provides:
"The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) Facts limiting defendant's culpability A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: [¶] . . . [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses."

Here, the record shows the court carefully applied the foregoing criteria set forth in rule 4.413(c) and properly found that for purposes of section 1203, subdivision (e)(2) this was not an unusual case in which the interests of justice would best be served by granting Fauss probation. The court did not abuse its discretion.
3. Imposition of the upper term for Fauss's conviction
Our review of the record also discloses no reasonably arguable appellate issue with respect to the court's discretionary determination that imposition of the upper term of four years in prison for Fauss's conviction of assault with a deadly weapon was warranted because the circumstances in aggravation outweighed the circumstances in mitigation. In exercising its sentencing discretion in choosing one of the three authorized terms of imprisonment referred to in section 1170, subdivision (b), a trial court "may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Rule 4.420(b).) In determining the relevant circumstances and selecting the appropriate term, the court may consider the record in the case, the probation officer's report, statements in aggravation or mitigation submitted by the prosecution and the defense, and "any further evidence introduced at the sentencing hearing." (§ 1170, subd. (b).)
Here, the record shows the court carefully considered the circumstances in aggravation and mitigation, and it did not abuse its discretion in selecting the upper term of four years for Fauss's conviction. The record supports the court's determination that the only circumstance in mitigation was that Fauss "honestly recognize[d] that he was in the wrong." The record also supports the court's determination that the circumstances in aggravation outweighed the circumstances in mitigation because it shows that Fauss was the initiator of aggression and he unreasonably used deadly force, as an adult he had suffered numerous prior convictions that were increasing in seriousness, he was on probation when he committed his current offense, and his prior performance on probation was unsatisfactory.
4. Ineffective assistance of counsel
Our review of the record also discloses no reasonably arguable appellate issue with respect to what Fauss's appellate counsel refers to as possible "ineffective assistance by submitting support letters from several different people that appeared to be cut-and-paste copies of each other." The record shows that defense counsel attached to Fauss's statement in mitigation copies of letters from eight people asking that the court show leniency in sentencing Fauss. The letters were all different and were not "cut-and-paste copies of each other."
In sum, our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by Fauss's appellate counsel, has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the judgment. Fauss's appellate counsel has competently represented him in this appeal.
DISPOSITION
The judgment is affirmed.



NARES, Acting P. J.


WE CONCUR:



AARON, J.



DATO, J.