People v. Fischer CA3

Filed 5/2/14 P. v. Fischer CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C070860

Plaintiff and Respondent, (Super. Ct. Nos. 11F01383 & 11F02970) v.

JAMES DAVID FISCHER,

Defendant and Appellant.

In a bifurcated trial, a jury convicted defendant James David Fischer of seven counts of first degree residential burglary. Defendant waived a jury trial regarding an allegation that he had a prior juvenile adjudication that qualified as a strike. Following a bench trial, the trial court found the allegation true, making defendant eligible for

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enhanced punishment under the three strikes law. (Pen. Code, §§ 667, subds. (b)(i), 1170.12).1 Defendant now contends: (1) in deciding that defendant was the person identified in certain juvenile court records, the trial court improperly relied on a document that was not in evidence; and (2) defendant’s trial counsel rendered ineffective assistance by failing to object to the trial court’s reliance on the document that was not in evidence. We conclude (1) defendant forfeited his first contention because he did not object on that basis in the trial court; and (2) defendant has not demonstrated deficient representation by his trial counsel or resulting prejudice. Accordingly, we will affirm the judgment. BACKGROUND Our recitation of the background is limited to the circumstances relevant to defendant’s appellate contentions. An amended information alleged that defendant had been adjudicated of violating section 245, subdivision (a)(1)2 (assault with a deadly weapon) with a great bodily injury enhancement (§ 12022.7, subd.(a))3 on April 15, 2002, in Orange County Juvenile Court

1 Undesignated statutory references are to the Penal Code.

2 Section 245, subdivision (a)(1) provided that any person who committed an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding $10,000, or by both the fine and imprisonment. (Stats. 1999, ch. 129, § 1, p. 1781.) 3 At the time of the offense, section 12022.7, subdivision (a) provided that any person who personally inflicted great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of three years, unless infliction of great