Opinion
A122096
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JOSEPH FETZER, Defendant and Appellant.
Not to be Published
Christopher Joseph Fetzer appeals from a final judgment entered after his plea of guilty to one count of lewd and lascivious acts with a child under 14 years of age. (Pen. Code, § 288, subd. (a).) His court-appointed counsel has filed a brief raising no issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
All statutory references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
Since there was no preliminary hearing, the facts are taken from the probation report.
Appellant lived with B.J., their two children and appellants stepdaughter, D.S., who was 11 years of age. On April 2, 2008 (all dates are in that year), Ukiah police officers arrived at appellants residence in response to the report of a sexual assault. J. informed the officers that D.S. told her she woke up finding herself naked from the waist down with appellant on top of her. D.S. told the officers that appellant had poured cold medication into a glass of water and told her to drink it. She faked drinking the liquid and fell asleep. When she awoke, appellant was on top of her and appellants private parts were against her genital area, and the underwear she always wears when she goes to sleep was gone. She got dressed, as appellant directed, but then went to her mother and told her what had happened.
J. told the officers that when she confronted appellant she noticed that his pajama pockets were turned inside out and appellant could not explain why this was so. She also found a white pill in the kitchen sink which matched a Vicodin pill that had been prescribed for appellant. D.S. showed the officers the glass she was given by appellant to drink from. The glass "smelled minty like cold medicine" and crushed pieces of a white pill were in the bottom of the glass. Appellant admitted making the "medical cocktail" and rubbing D.S.s buttocks while she slept next to him.
On April 23, appellant plead guilty to one count of lewd and lascivious acts with a child in violation of subdivision (a) of section 288, in exchange for dismissal of counts of rape of an intoxicated person, rape of an unconscious person, administering a controlled substance to aid in a felony, endangering the health of a child (§§ 261, subd. (a)(3), 261, subd. (a)(4), 222, 273a, subd. (a)), and five misdemeanor counts of contempt of court, disobeying a court order (§ 166, subd. (a)(4)) and, finally, a special allegations of having committed an offense within five years of violating parole (§ 667.5, subd. (b)).
In connection with his plea, appellant submitted a written statement acknowledging, among other things, that on the night in question "I had drank approx. 10-12 beers, a bottle of wine and had taken vicodin and cough medicine before passing out at approx. 11:30 pm." Appellant stated that after he was arrested and taken to jail and had sobered up, "I started remembering what had taken place. I vaguely remember [D.S.] coming into the room where [one of appellants sons] and I were sleeping. She got into bed with us and watched T.V. I fell back asleep and remember laying close next to her. At that time the most horrific shameful thing occurred. I rubbed close to her and touched her[.] I immediately realized I had done something wrong. . . . I am so ashamed that I even did something so horrible. I would like to apologize to you [D.S.] with all my heart. I want you to know that I never intentionally, purposefully or consciously intended to hurt you or our family. . . . I will go to any lengths to prove to you that, Mom and society that I will never let alcohol allow me to lose my internal controls ever again."
Appellant, who at the time of his arrest was 39 years of age, had been diagnosed with depression and attention deficit disorder when in the third grade, but only began addressing these afflictions when he was 19. He began drinking alcohol at the age of seven, and started using marijuana when he was 19. At the time of his arrest, appellant was only one semester short of receiving his B.A. degree from Sonoma State College and was attempting to obtain a teaching credential. B.J. told the probation department that appellant had been a good father to his sons, but "is in need of serious psychological counseling" and help with his alcoholism.
The probation report noted that because he had suffered more than two prior felony convictions (for driving while intoxicated with an injury, being a felon in possession of a firearm, being a felon in possession of ammunition, and cultivating marijuana), appellant was ineligible for probation unless the present offense could be deemed unusual. (§ 1203, subd. (e)(4).) The probation department felt the case could not be considered unusual for many reasons, including that appellants crime was not provoked nor committed as a result of a mental defect, and appellant was neither youthful nor aged. Noting that there were many factors in aggravation (the vulnerability of the victim, the planning involved, the taking advantage of a position of trust, that appellants prior convictions are of increasing seriousness, that he had served two prior prison terms, and appellants prior violations of probation and parole) and only one factor in mitigation (that he voluntarily acknowledged wrongdoing early in the process), the probation department recommended that appellant be sentenced to the six-year midterm for his offense.
On July 11, the trial court found this was not an unusual case warranting probation. Relying on the numerous aggravating factors, appellants long-standing inability to effectively address his admitted alcoholism, and also the planning involved in the commission of his offense (i.e., the "medical cocktail" appellant prepared for his victim), the court sentenced appellant to the eight-year upper term.
DISCUSSION
During the periods of time his plea was negotiated and entered, and his sentence considered and imposed, appellant was represented by able counsel. The court fully informed appellant of the consequences of his plea and the rights he would be giving up by his plea before it was entered, and the record shows appellants plea was fully informed and freely made. There is also no reason to question appellants mental competence to participate in the proceedings and enter his plea.
There was no sentencing error.
There are no legal issues that require further briefing.
The judgment and sentence imposed are affirmed.
We concur:
Haerle, J.
Lambden, J.