People v. Arraiga CA2/2

Filed 2/13/14 P. v. Arraiga CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, B248001

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA096683) v.

KRISTOPHER JESUS ARRAIGA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Juan Carlos Dominguez, Judge. Affirmed as modified.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Kristopher Jesus Arraiga (defendant) appeals from his felony convictions, challenging the amount of the restitution fine and parole revocation fine as an unauthorized ex post facto imposition of punishment, and claiming ineffective assistance of counsel. Defendant also seeks correction of the award of presentence custody credits. We modify the award of presentence custody credits, but finding no merit to defendant’s remaining contentions, we affirm the judgment. BACKGROUND Defendant was charged in count 1 with attempted willful, deliberate murder with premeditation, in violation of Penal Code sections 187, subdivision (a), and 664, subdivision (a);1 and in count 2 with aggravated mayhem in violation of section 205. The information also alleged that defendant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a); that defendant had a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a), and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and that defendant had served five prior prison terms within the meaning of section 667.5, subdivision (b). The evidence presented at defendant’s jury trial showed that he struck Juan Ramirez multiple times in the face, head, and hands with a crowbar, inflicting lacerations, a broken finger, and a ruptured eyeball. Ramirez required surgery, seven days of hospitalization, stitches, and a cast, and was left with scars and permanent blindness in one eye. The jury found defendant guilty of attempted murder and found true the allegations of premeditation and great bodily injury, but acquitted defendant of aggravated mayhem, convicting him instead of the lesser included offense of simple mayhem, in violation of section 203. Defendant waived a jury trial on the prior conviction allegations and admitted them all. On January 31, 2013, after denying defendant’s motions for new trial and to dismiss the strike conviction, the trial court sentenced defendant to a total of 26 years to