People v. Rocha CA5

Filed 1/27/14 P. v. Rocha 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065527 Plaintiff and Respondent, (Super. Ct. No. F11600973) v.

ARTHUR BENITO ROCHA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Jr., Judge. Jean M. Marinovich, 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, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Detjen, J. and Franson, J.

After defendant Arthur Benito Rocha pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), the court granted probation and ordered $400 in victim restitution (§ 1202.4, subd. (f)). On appeal, defendant contends (1) the $400 victim restitution award is unauthorized and (2) a probation condition is unconstitutionally vague. We will modify the probation condition and affirm in all other respects. FACTS2 On June 13, 2011, at approximately 9:21 p.m., defendant arrived at his 37-year-old female cousin’s house. He was intoxicated and he told her he needed to talk to someone. They visited for a few hours and the cousin realized defendant was depressed because his father had died a few weeks earlier. Defendant left but returned a short time later with someone named Richard. Defendant sat at the cousin’s kitchen table with a laptop computer, talking to himself. He was “acting very scary” and he became very upset with the cousin. He got up and removed the battery from her cell phone. He gave it to Richard, who left shortly thereafter. Defendant approached the cousin in an aggressive manner. He picked up a kitchen knife from the counter and broke the blade off. He approached the cousin, wrapped his fingers around her neck, and put the blade against her cheek. While he choked her, he said, “Don’t think I won’t do it.” As they struggled, the cousin received a scratch to her chest. Defendant took his fingers off her neck and walked to the garage. She ran to a neighbor’s house and called the police. As she waited outside her house for the police, defendant came out and pushed her to the ground. She was able to get up, enter her house, and lock the door.