P. v. Fernandez CA3

Filed 5/1/13 P. v. Fernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C070130

Plaintiff and Respondent, (Super. Ct. No. CRF10-256)

v.

CORY WALLACE FERNANDEZ,

Defendant and Appellant.

Following a bench trial, the trial court found defendant Cory Wallace Fernandez guilty of attempting to murder one housemate and assaulting another with a firearm, along with another offense and two firearm enhancements.1 (Pen. Code, §§ 664/187,

1 In a footnote in his statement of the case, defendant asserts the court’s minute orders reflect the sustaining of lesser-included firearm enhancements that were not part of the trial court’s oral pronouncement of its verdicts, and asks us to modify the judgment to delete any reference to these findings. This manifestly improper way to raise an issue forfeits our plenary consideration of it. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) We thus confine ourselves to observing that the judgment is the trial court’s oral

1

subd. (a), 245, subd. (a)(2), & former § 12021, subd. (a)(1).) It sentenced him to state prison.

On appeal, defendant contends there is insufficient evidence of his intent to kill the attempted murder victim. He also maintains that he is entitled to additional custody and conduct credit, a point the People concede. We shall affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

The parties provide lengthy summaries of the evidence at trial. We limit our account, however, to the facts relevant to defendant’s argument.

The assault victim had multiple people living with him in itinerate fashion in bedrooms and sleeping on couches in the four-bedroom house. Neighbors described the atmosphere at the residence as being obnoxious, rowdy, and loud; drinking, drug ingestion, and fighting all took place. Defendant had been living there for about six months. The assault victim testified that he and defendant were “pretty good friends most of the time,” though defendant’s roommate testified that she heard them argue “quite a bit” and a neighbor also had heard the assault victim yelling at defendant. The attempted murder victim had known defendant for about six to eight months, and had thought that they were good friends.