People v. Burnette CA3

Filed 11/21/22 P. v. Burnette CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Trinity) ----

THE PEOPLE, C095741

Plaintiff and Respondent, (Super. Ct. No. 21F164)

v.

DEREK CHRISTOPHER BURNETTE,

Defendant and Appellant.

After defendant Derek Christopher Burnette pled no contest to inflicting corporal injury on a cohabitant (his girlfriend), the trial court denied probation and imposed a sentence of three years of imprisonment. On appeal, defendant contends the trial court violated his due process rights at sentencing by considering “facts that were excluded under the plea agreement,” denying probation based on improper aggravating factors, and failing to consider material facts supporting a grant of probation. We conclude these contentions are forfeited for failure to object in the trial court, and defendant has not

1

established ineffective assistance. Defendant also contends we should strike a $500 fee the trial court ordered defendant to pay, as that fee is applicable only when a trial court grants probation to a defendant. The People agree, and so do we. Accordingly, we will strike the $500 fee and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND In November 2021, a complaint was filed accusing defendant of four offenses against his girlfriend: count one—making a criminal threat (Pen. Code, § 422, subd. (a)),1 count two—assault with a deadly weapon (a knife) (§ 245, subd. (a)(1)), count three—battery of a cohabitant (§ 243, subd. (e)(1)), and count four—corporal injury to a cohabitant (§ 273.5, subd. (a)). Defendant pled no contest to count four in exchange for dismissal of the other counts. The parties stipulated to a report by the county sheriff’s office as providing the factual basis for the plea. The sheriff’s report detailed events on the evening of November 2, 2021, when sheriff deputies responded to defendant’s residence because of a report defendant was breaking things and making death threats against his girlfriend. Defendant told the deputies: “ ‘You guys can leave. I don’t even know why you’re here.’ ” Another man present replied to defendant: “ ‘Yes they should be here. You . . . hit her . . . . And you tried to burn the house down.’ ” Defendant’s visibly distressed girlfriend had apparent cuts on her face, which were bleeding. She said defendant “struck her in the face,” and “held a knife to her stomach and said that he was going to stab her.” The report explained how defendant’s girlfriend “lifted her shirt and said, ‘Well he said that he was going to stab me. And he held [the knife] like this, well there isn’t any marks or anything. Well that. But he didn’t really push anything in.’ [The girlfriend] pointed to a red mark on the center of her