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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

v.

RIGOBERTO RICAR DO HERNANDEZ, JR.,

Defendant and Appellant. G047071

(Super. Ct. No. 11HF0141)

O P I N I O N

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.

* * *2 A jury convicted defendant Rigoberto Ricardo Hernandez, Jr., of felony driving under the influen ce of alcohol (Veh. Code, § 23152, subd. (a) (DUI)) 1 and felony driving with a blood-alcohol c oncentration of .08 percent or more (§ 23152, subd. (b)) and, as to both offenses, found true th e allegation defendant had a blood alcoholconcentration of .20 percent or more (§ 23538 , subd. (b)(2)). The trial court found true the allegations defendant had suffered a prio r 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)). De fendant 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 c onsecutive one-year prison priors, plus a separate consecutive 180-day sentence for dr iving on a suspended license. He filed a timely appeal. We appointed counsel to represen t defendant on appeal. While not arguing against defendant, counsel filed a brief whic h 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 conclude d 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 ha ve received no such argument. We have

reviewed the record of defend ant’s trial and the brief file d by defendant’s counsel, and find ourselves in agreement w ith defendant’s counsel: Ther e 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.3 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 defend ant open the driver door and stagger out of the car with wet pants. Staab di d 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 reen tered approximately two minutes later at an on-ramp below wh ere he saw the car pull over. As Staab drove toward the area, he observed defendant walking to wards him about 30 ya rds from the car. Staab spoke to defendant and imme diately noticed a very strong odor of

alcohol and urine. He also observed defe ndant had red eyes. When asked for his identification, defendant handed Staab his bank card. Defendant denied drinking but admitted driving and said th e car had broken down. Staab began a DUI investigation by asking defendant more questions.

Defendant then admitted he ha d a couple of beers between 8:00 a.m. and 2:00 p.m.

Defendant failed the field s obriety tests and his blood-alcohol concentration was measured at .244 and .238 percent on the pr eliminary alcohol screening device.

Staab arrested defend ant for DUI. Defendant was searched and the keys to the car and a cell phone were found in his pock et. Test results later indicated he had a

blood-alcohol concentration of .2 0 percent. The forensic scie ntist extrapolated back to a blood-alcohol level of .22 and .23 pe rcent at the time of driving. Defendant’s 71-year-old uncle testifie d 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 aw ay to find help, leaving defe ndant in the car. When he returned 30 to 40 minutes later, de fendant and the car were gone.4 DISCUSSION

We have carefully scrutinized the tria l record. Viewing th e 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 ag ainst defendant was overwhelming. Appellate counsel considered a potential juror misconduct issue. According to the clerk’s transc ript, at some point during ju ry selection defense counsel told the court her client overheard a prospect ive juror say, “I woul d find this guy guilty so we could go home.” The partie s agreed not to use th is 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 contai n anything about this incident. The juror misconduct here, if any, was appropriately addressed by promptly dismissing the juror in question. Since th e juror who made the offending statement was dismissed by agreement of the parties, no hear ing 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 statem ent. 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 contac t information (Code of Civ. Proc., § 237, subd. (b)) and thus no deficiency in de fense 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 co rrectly 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 a5 continuous five-year period . . . . ” As to the 1995 and 1996 prio r convictions, defendant was discharged from parole on Ju ly 5, 2002 and September 3, 2008, respectively. As to the 2005 prior conviction, wh ile defendant was likely still on parole at the time he committed the current offenses, that fact doe s not bar imposition of a separate one-year enhancement in this case. ( In re Jessup (1980) 109 Cal.Ap p.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 defenda nt’s prior conviction history rendered him presumptively ineligible for pr obation “[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 ci rcumstances 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 fact s alone support the trial court’s decision to deny probation. Third, with respect to the possibility the trial cour t abused its discretion by imposing a consecutive rather than a concu rrent 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 C ourt, rule 4.425(a)(1 )) and nothing in the record indicates “a single period of aberra nt behavior” (Cal. Rules of Court, rule 4.425(a)(3)). Under these circumstances the tr ial 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 fa irly conducted and the trial court sentenced appropriately. Appellate counsel was ri ght: there are no issues on appeal.6 DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.