Filed 12/20/18 P. v. Baeza-Pacheco CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Juan Baeza-Pacheco (defendant) appeals from a judgment entered after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] and the trial court placed him on probation for two years. He contends the court: (1) abused its discretion in denying his motion to reduce his conviction to a misdemeanor; and (2) erred in ordering him to pay a presentence report fee and a booking fee. We reject his contentions and affirm the judgment.

Factual and Procedural Background

An information was filed on October 26, 2016, charging defendant with two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). A jury found defendant guilty of the first count, and the trial court granted the prosecutor’s motion to dismiss the second count. The court denied defendant’s motion to reduce the conviction to a misdemeanor and placed him on probation for two years.

At about 3:30 p.m. on September 26, 2016, security guard Mechael Repollo finished his first work shift and went to a gas station to buy a soda. He had about an hour before his next work shift started, so he went to a park and sat down on the grass. There was a woman sitting to his side, between one and a half and three yards away. A man—later identified as defendant—was lying down next to the woman, and it looked like he was sleeping.

Repollo and the woman had a short conversation during which he asked her where she was from, asked her what her name was, and mentioned he had a lot of Latino friends. He offered her some soda because it was a hot day, and she accepted. Repollo did not ask the woman out and did not move closer to her. Repollo did not speak to defendant.

The conversation ended after about two minutes, at which point defendant got up and left on his bicycle. Repollo asked, “ ‘Where [did] your boyfriend go?’ ” The woman replied that defendant was not her boyfriend. A few minutes later, Repollo suddenly felt someone hitting him in his back. He turned around and saw defendant holding a hatchet with his two hands in a batter’s stance, with the blade facing outward toward Repollo. Repollo got up and ran away, but defendant chased him while grunting and continuing to hit Repollo’s back.

At some point, Repollo and defendant were on a sidewalk, facing each other. Defendant said something in an angry tone, then swung the hatchet again. Repollo grabbed the hatchet to prevent it from hitting his face and, in doing so, cut his hand. Defendant resumed chasing Repollo, who ran into the street and fell in front of a car. The driver of the car testified that as Repollo was falling, defendant was holding the hatchet in a way that looked like he was “ready to attack.” The driver got out of his car and, together with another man, tackled and restrained defendant, who was still holding the hatchet. As the two men restrained defendant, Repollo took the hatchet from defendant’s hand and called 911.

After the incident, Repollo was in a lot of pain and could not move. He was still experiencing some pain at the time of trial.

An officer who responded to the scene testified that defendant behaved in a “very odd” way. He was friendly toward the officer and smiled “as if nothing had really happened.” Defendant did not complain of any injuries, and photographs taken of defendant at jail revealed no injuries.

Defendant testified in his own defense. He explained he “got mad” because Repollo “just kept talking to [his girlfriend] about—stuff about sex.” Defendant told his girlfriend that he was going to go to the bathroom and left, hoping that “once [Repollo] realized she was my girlfriend that he’d leave.” Once he got to the other side of the park, defendant saw some tools used by park workers and picked up a hatchet because he “was mad because that guy wouldn’t leave” and because of “the way he was talking to my girlfriend.”

Defendant returned and asked Repollo “why [he] was talking that way to my girlfriend.” When Repollo stood up, defendant pushed Repollo, causing him to fall. Repollo got up, grabbed defendant, and started hitting him. Defendant responded by hitting Repollo with the blunt side of the hatchet. Defendant followed Repollo only because Repollo kept grabbing him and pulling him by his clothes. Once they got onto the street, a driver of a car and another man restrained defendant. Defendant asked the driver to call the police. When asked during cross-examination why he and his girlfriend did not just leave, defendant responded, “I don’t know.”

Discussion

Motion to Reduce Conviction to Misdemeanor

Defendant contends the trial court abused its discretion in denying his motion to reduce his conviction to a misdemeanor. We disagree.

Section 17, subdivision (b) authorizes the reduction of “wobbler” offenses—crimes that, in the trial court’s discretion, may be sentenced alternatively as felonies or misdemeanors. “[T]he court may reduce a wobbler to a misdemeanor either by declaring the crime a misdemeanor at the time probation is granted, or at a later time—for example when the defendant has successfully completed probation.” (People v. Park (2013) 56 Cal.4th 782, 793; § 17, subd. (b)(3).) Assault with a deadly weapon, the crime of which defendant was convicted, is a wobbler offense. (§ 245, subd. (a)(1); People v. Park, at p. 790.)

A trial court has broad discretion in deciding whether to reduce a wobbler offense to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, disapproved on other grounds in People v. Williams (2005) 35 Cal.4th 817, 832.) In making its decision, the court considers the facts surrounding the offense and the characteristics of the offender. (People v. Superior Court (Alvarez), at p. 978.) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Id. at pp. 977−978.)

Here, defendant moved under section 17, subdivision (b) to reduce his conviction to a misdemeanor, noting, among other things, that he had no prior convictions and “his only previous contact with police was an arrest for misdemeanor shoplifting in March 2016, which trails this case.” He asserted his conduct was provoked by Repollo’s “unwelcome advances,” and that he did not use the “sharp edge of the hatchet’s blade” and caused only “minor” injuries. He said he “deeply regretted his actions” and noted the length of his pretrial custody, his work history, and the adverse effect a felony conviction would have on his ability to work.

The probation report recommended that defendant be placed on probation for two years. A risk assessment tool rated defendant “ ‘Low’ ” in recidivism and in “recommended supervision,” but the probation officer recommended a “ ‘Medium’ ” supervision level given defendant’s “intent to cause great harm to the victim.” Defendant scored “Highly Probable” on “Criminal Personality,” “indicat[ing] a tendency toward an antisocial personality” and the possibility defendant “need[ed] high levels of control.” He scored “Highly Probable” on “Reentry Social Isolation,” “suggest[ing] that he may lack a supportive social network.” “Anger was also identified as a ‘Probable’ need to address.” The probation officer considered defendant a “suitable” but “marginal” candidate for probation “based on the actions demonstrated in this instant offense, which cannot be overlooked regarding public safety concerns.”

After noting it had reviewed and considered the probation report, the trial court denied defendant’s motion, stating “he would qualify for it, the way I see it, except that he hasn’t really had a chance to demonstrate whether or not he could benefit by what Probation can offer to help him.” The court noted that defendant would be living with a friend or relative upon his release and that probation could also assist him with employment issues. The court also relied on the fact that “it was a pretty mean looking hatchet that he was convicted with,” and that “[s]triking somebody with that, even if it was the blunt end, he was lucky in this respect that the injuries weren’t any worse than they were.” The court indicated it would reconsider the motion at a later time, stating, “Maybe, at this stage, it’s just a little too early. But I don’t see why he wouldn’t be entitled to an early reconsideration. If I deny this motion, it will be without prejudice.”

The trial court’s statements show it properly evaluated the nature of the offense and defendant’s characteristics in reaching its decision not to reduce the offense to a misdemeanor at this time. The court expressed its concern regarding the dangerous weapon defendant used and said he was lucky his actions did not result in more serious injuries. The court also noted defendant had not had the “chance to demonstrate whether or not he could benefit by what Probation can offer to help him.” Finally, the court considered the probation report, which cautioned that defendant had anger issues, needed supervision and “high levels of control,” and was a “suitable” but “marginal” candidate for probation.

Defendant complains that the trial court’s concern regarding his need for employment or housing assistance was “unwarranted,” and that the court mistakenly believed defendant would not be able to obtain assistance from probation if the court were to reduce his offense to a misdemeanor. He states, “Therefore, the trial court could have reduced the felony conviction to a misdemeanor and still placed [defendant] on probation which was available to provide help with housing and/or employment in the unlikely event should it be needed.” The record, however, does not show the court misunderstood its discretion. Rather, the court’s statements indicate that it wished to see defendant not only benefit from the services probation could provide, but that it also wanted to see how defendant would perform on probation before reducing his offense to a misdemeanor. As the court stated, it was “a little too early” “at this stage.” The court did not abuse its discretion in denying defendant’s motion.

Presentence Report and Booking Fees

Defendant contends the trial court erred in imposing a presentence report fee and a booking fee, and that trial counsel was ineffective for failing to object to the imposition of the fees. We conclude defendant forfeited his contention and also reject his ineffective assistance of counsel claim.

The probation reported recommended a variety of fines and fees, including up to $150 for presentence investigation (§ 1203.1b) and up to $135 for booking (Gov. Code, § 29550.2). At sentencing, the trial court noted “there’s no assessment for attorney’s fees” due to defendant’s lack of employment while in custody. Both parties submitted on that point. Thereafter, the trial court imposed various fines and fees, including “$150 for the pre-sentence report” and “a booking fee of $135.” Trial counsel did not object to the imposition of those fees.

As defendant recognizes, “counsel’s failure to object below means that neither of these issues are preserved for review by this court.” (People v. Trujillo (2015) 60 Cal.4th 850, 858 [forfeiture of ability-to-pay claim as to presentence report fee]; People v. McCullough (2013) 56 Cal.4th 589, 597 [forfeiture of ability-to-pay claim as to booking fee].) We conclude defendant forfeited his contention by failing to object to the imposition of the fees.

Defendant also contends trial counsel was ineffective for not raising an objection. To establish ineffective assistance of counsel, a defendant must prove: (1) that “counsel’s representation fell below an objective standard of reasonableness” in that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 669, 687−688, 694.)

Here, defendant’s sentencing memorandum discussed his work history, which included 15 years of consistent, stable work in San Francisco. Although defendant had not worked during his time in custody and the trial court determined he would therefore not be responsible for attorney fees, counsel could have surmised that defendant had the ability to pay a $150 presentence report fee and a $135 booking fee. Counsel could have also been aware that further exploration of defendant’s ability to pay could lead the court to order payment of attorney fees. (See Harrington v. Richter (2011) 562 U.S. 86, 105 [noting that “[u]nlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge].)

“ ‘[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266−267; see also Harrington v. Richter, supra, 562 U.S. at p. 105 [“the standard for judging counsel’s representation is a most deferential one”].) Because there were satisfactory explanations as to why counsel might not have raised an objection, defendant has failed to show that counsel’s performance was deficient, and his ineffective assistance of counsel claim fails.

Disposition

The judgment is affirmed.

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Jenkins, J.

We concur:

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Siggins, P. J.

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Fujisaki, J.

A153096/People v. Juan Baeza-Pacheco