P. v. Hernandez

Filed 8/7/07 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Jesse Witt, for Plaintiff and Respondent.

Defendant Robert Trevino Hernandez erroneously contends the trial court erred in sentencing him to prison instead of admitting him to probation. We will affirm the judgment.

Facts and Procedural History

Defendant beat his girlfriend and cohabitant, Suzanna Stuckey, on the afternoon of July 5, 2006. Defendant elbowed Stuckey in the arm (raising a bruise), pushed her against a door, slapped her several times, and hit her in the nose with his closed fist, causing her nose to bleed and to remain cockeyed.

Defendant was charged with one count of corporal injury to a cohabitant, Penal Code section 273.5, subdivision (a). A jury found him guilty after he testified, in the alternative, that (1) he did not beat Stuckey or (2) he did not remember whether he beat her and did not notice if she was bleeding when she left the apartment.

In defendants presentence interview with the probation officer, defendant said Stuckey had a methamphetamine problem and he had kicked her out of his apartment. While not explicitly denying that he beat her, defendant said his trial was not done fairly and that his trial attorney was a dump truck.

At the sentencing hearing, the court noted that Stuckey had testified defendant had changed after he had a stroke a few years before. The court found that this was a mitigating factor in terms of sentence, but was not sufficient to make probation appropriate. The court was concerned that defendants continued denial of responsibility for the incident, together with the fact that he had a prior prison term and the present crime was serious, made defendant an inappropriate candidate for probation. The court therefore denied probation and sentenced defendant to the lower term of two years in prison.

Defendant filed a timely notice of appeal.

Discussion

Defendant argues on appeal that there was no evidence his battery of Stuckey was more serious than other domestic batteries and that a single prior prison term (as opposed to regular or increasingly serious criminal conduct (see Cal. Rules of Court, rule 4.414(b)(1)) is not a proper factor in denying probation. Defendant does not contest the courts conclusion that defendant blamed everyone except himself for the crime and, thereby, showed a lack of remorse.

The trial court did not abuse its discretion in denying probation. Defendants testimony at trial was contemptuous of the overwhelmingly proved truth; his continued denial of responsibility in the probation evaluation process demonstrated contempt for the probation process. The court reasonably concluded it was unlikely defendant would succeed on probation under these circumstances. (See, e.g, People v. Leung (1992) 5 Cal.App.4th 482, 507.)

Even though the other two factors, the prior prison term and seriousness of the crime, were weaker factors in the decision to deny probation, the sentencing court exercised its informed discretion in light of all of the circumstances. The court did not abuse its discretion in relying heavily on defendants lack of remorse, and we find no error in the courts denial of probation. (See People v. Downey (2000) 82 CalApp.4th 899, 917.)

Disposition

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.