Opinion
D059087 Super. Ct. No. SCE303817 D060524
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM L FULLER, Defendant and Appellant. In re WILLIAM L. FULLER on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment and a petition for writ of habeas corpus of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Judgment affirmed; petition denied.
William Fuller appeals a prison sentence of two years for assault likely to produce great bodily injury plus three additional years for a great bodily injury enhancement. Fuller urges the trial court abused its sentencing discretion. We disagree and affirm the judgment. We also deny the relief requested in Fuller's petition for writ of habeas corpus, In re William L. Fuller, D060524, which is consolidated with this appeal.
BACKGROUND
On August 14, 2010, as he attempted to back his vehicle into his apartment parking spot, Fuller's vehicle struck a parked vehicle belonging to Suzanne Meyer. A witness, Susan Kanarvogel, saw Fuller leave his vehicle and make no attempt to leave his information on Meyer's car. Kanarvogel observed Fuller to be stumbling and he appeared to have poor balance, as if he was drunk. Following her observations, Kanarvogel looked at Meyer's car and saw black scratch marks on the passenger rear bumper. She went to Meyer's apartment and told her what she observed.
Meyer looked at the damage to her car and went to Fuller's apartment. She asked him to come with her to the parking lot. Because Fuller was yelling and upset, Meyer went to Kanarvogel's apartment and asked if Kanarvogel and Kanarvogel's brother Michael could stand with her in the parking lot while she collected insurance information. Meyer told them she was concerned for her safety.
In the parking lot, Fuller again began yelling. He denied that he hit Meyer's car. Meyer told him she did not want to call the police to report a drunk driver but only gather insurance information. Fuller continued yelling and assumed a combat stance. Fuller told Kanarvogel, "I love trouble." Then he got into his vehicle and started the engine. Meyer called 911 for assistance. When Michael stood in front of Fuller's vehicle to prevent him from leaving, Fuller got out of his vehicle and ran toward Michael. Fuller threw punches at Michael, hitting him several times. When Michael punched Fuller in the face, Fuller's face started bleeding.
Meyer and Kanarvogel tried to keep Fuller from attacking Michael. During the fighting, he spit blood at the witnesses and made statements like "I'm the devil. I'm going to kill you all." Sometime during this attempt, Fuller pushed Kanarvogel to the ground. She fell, using both hands to break the fall. Her right wrist was fractured and required surgery including the placement of two metal plates and eight screws in her arm.
Several neighbors broke up the fight. When police arrived, they noticed the smell of alcohol coming from Fuller's mouth. They observed his eyes were droopy and bloodshot. His speech was slurred. However, Fuller denied he had been driving or drinking alcohol before the fight. Of the blood on his face, he told officers he had been "sucker punched." Taken to a hospital, Fuller repeatedly stated he was going to kill all the witnesses. He told a police officer that if he was going to get locked up, then, "Fuck it, that's what you do when you get out. I'm going to kill them all." He also stated that he was going to kill the police officers who helped arrest him.
An information was filed by the San Diego County District Attorney's Office charging Fuller with assault likely to produce great bodily injury (count 1; Pen. Code,§ 245, subd. (a)(1)); making a criminal threat (count 2; § 422); driving under the influence (count 3; Veh. Code, § 23152, subd.(a), a misdemeanor); hit and run driving (count 4; Veh. Code, § 20002, subd. (a), a misdemeanor); battery (count 5; § 242), a misdemeanor; and battery (count 6; § 242). In connection with count 1, it was further alleged Fuller personally inflicted great bodily injury on Susan Kanarvogel within the meaning of sections 1192.7, subdivision (c)(8) and 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless otherwise specified.
Pursuant to a plea agreement, Fuller pled guilty to counts 1 and 3, and admitted the great bodily injury allegation. A waiver was also taken pursuant to People v. Harvey (1979) 25 Cal. 3d 754. In return, the People dismissed the remaining counts. The maximum punishment agreed to was seven years.
Fuller was sentenced on January 21, 2011. Probation was denied. For count 1, Fuller was sentenced to the low term, two years in prison. He was in addition sentenced to an additional three years for the great bodily enhancement. On count 3, Fuller was sentenced to serve 180 days concurrent to count 1. A restitution fine of $1,000 was ordered paid to the Restitution Fund pursuant to section 1202.4, subdivision (b). Fuller was also ordered to pay $32,000 to the victim (§ 2085.5).
Fuller received credits in the amount of 185 days. He filed a timely notice of appeal.
Probation
Even without the plea agreement and understanding the court did not abuse its discretion in denying probation. Probation is generally reserved for convicted criminals whose conditional release into society poses no risk to public safety and promotes rehabilitation. A sentencing court has broad discretion to determine whether a defendant is suitable for probation. (People v. Welch (1993) 5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683; § 1203.1; Cal. Rules of Court, rule 4.414(b).) We will not disturb the order of the sentencing court unless there is a showing that the denial of probation was arbitrary or capricious, or otherwise exceeded the bounds of reason. (People v. Buttram (2003) 30 Cal.4th 773, 788-789; People v. Golliver (1990) 219 Cal.App.3d 1612, 1620.)
All further rule references are to the California Rules of Court.
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The sentencing court is not required to state reasons for denial of probation.. Moreover, because denial of probation is not considered a sentencing choice, a trial court is not required to state the reasons for denial of probation when the court has properly stated reasons for imposing a prison term. (People v. Martinez (1985) 175 Cal.App.3d 881, 896; People v. Villanueva (1991) 230 Cal.App.3d 1157, 1160.)
The record reflects the trial court reviewed and considered the probation officer's November 3, 2010 report. The report concludes Fuller is a danger to the community because of his strong potential for committing violent acts when he consumes alcohol. The report notes that Fuller explained the current offenses as resulting from a marital breakup and also minimized the history of substance abuse and his prior arrest for resisting and obstructing of a peace officer. A report prepared by Dr. Katherine DiFrancesca concluded Fuller might have a bipolar disorder that he declined to acknowledge. He did not see himself through the eyes of others and could not relate to the effect his actions had on others.
The sentencing court found that despite Fuller having no prior prison record, his conduct was "really violent, serious and dangerous." It concluded Fuller's behavior was so out of control and so bizarre, and the injuries to the victim so severe, that the granting of probation was inappropriate. Although the court was well aware the circumstances surrounding Fuller's crimes involved his use of alcohol, it clearly chose not to accept this condition as a mitigating factor that was so strong as to require a different sentence, or a factor that occurred under circumstances relegating it to an excuse for his conduct. (Rule 4.423(a)(4); People v. Regalado (1980) 108 Cal.App.3d 531, 538-539).
Given the broad discretion of sentencing courts in selecting the punishment to be imposed on a defendant, unless we can conclude the court abused this discretion we must uphold the sentence. (In re Cortez (1971) 6 Cal. 3d 78, 85-86.) We conclude that the court properly considered the objectives involved in imposing a sentence, which includes punishment, deterrence, the protection of society, crime prevention and uniformity of sentencing. (See § 1202.7; rule 4.410.) Under these circumstances, we may not substitute our judgment for that of the trial judge.
The Great Bodily Injury Enhancement
Fuller also argues that the trial court improperly imposed a consecutive prison term for the great bodily injury enhancement under section 12022.7, subdivision (a), which provides in pertinent part that a person who inflicts great bodily injury while committing a felony, "shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
As both Fuller and the People acknowledge, the trial court has the power to strike the great bodily injury enhancement pursuant to section 1385. However, we note Fuller never requested the court strike the enhancement. This lack of objection or request to strike the great bodily injury enhancement was no doubt because, as part of his plea bargain, he admitted the enhancement and agreed to it being a part of his sentence; a sentence which was ultimately less than the seven-year maximum agreed upon in the plea bargain. Under these circumstances, Fuller cannot argue the enhancement resulted in an abuse of discretion. (See People v. Buttram, supra, 30 Cal.4th at pp. 788-789.)
DISPOSITION
Judgment affirmed. The petition for writ of habeas corpus is denied.
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BENKE, Acting P.J.
WE CONCUR:
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NARES, J.
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McDONALD, J.