P. v. Hernandez CA5

Filed 7/15/13 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE, F063465 Plaintiff and Respondent, (Super. Ct. No. F11902241) v.

JUAN CARLOS HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Peña, J.

Juan Carlos Hernandez appeals from a conviction for domestic abuse and resisting arrest. He was sentenced to a term of 11 years because he had prior convictions for domestic abuse, had served a prior prison term, and had a prior conviction that constituted a strike. The only issue is whether he received ineffective assistance of counsel when trial counsel intended to exercise a preemptory challenge on a juror, but inadvertently failed to do so. We conclude, even if we were to assume trial counsel‟s performance was deficient, Hernandez cannot establish he suffered any prejudice from the omission. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY The charges Hernandez was charged with two counts of inflicting corporeal injury on a spouse, in violation of Penal Code section 273.5, subdivisions (a), (e)(1)1 and one count of misdemeanor resisting arrest, in violation of section 148, subdivision (a)(1). In addition, the information alleged that because Hernandez had suffered prior convictions for violating section 273.5, subdivision (a) within the preceding seven years, he was subject to increased punishment pursuant to section 273.5, subdivision (e). Finally, the information alleged that Hernandez had suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b)-(i).

1All further statutory references are to the Penal Code unless otherwise stated. The information charged Hernandez with violating section 273.5, subdivision (e)(1), and the abstract of judgment reflects Hernandez was convicted of violating section 273.5, subdivision (e)(1). Both documents are incorrect. The crime of domestic abuse is codified in section 273.5, subdivision (a). Subdivision (e) is not a substantive crime. The information should have charged Hernandez with violating subdivision (a), and also alleged he was subject to increased punished pursuant to subdivision (e)(1). We will order the trial court to correct the abstract of judgment to indicate that Hernandez was convicted of violating subdivision (a) and found to have met the increased punishment criteria of subdivision (e)(1).