People v. Fonseca CA4/1

Filed 9/20/23 P. v. Fonseca CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081116

Plaintiff and Respondent,

v. (Super. Ct. No. SCN435492)

JOSE MANUEL FONSECA,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed as modified. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION1 Jose Manuel Fonseca walked into a market, put a three-pack of beer inside a bag, and went to check out to pay for only a single beer. When a loss prevention employee approached Fonseca about leaving without paying for the three-pack, Fonseca refused to cooperate and began “swinging” at the employee. Once at the door, Fonseca lunged at the employee two to three times with a knife and left the store, telling the employee, “I’ll be back, motherfucker.” Fonseca then went inside another market and tried to take another pack of beer and threatened to “fuck . . . up” the manager who confronted him. A knife was found on Fonseca when he was arrested. Following a bench trial, the trial court convicted Fonseca of assault

with a deadly weapon (Pen. Code,2 § 245, subd. (a)(1); count 1) and misdemeanor shoplifting (§ 459.5; count 4). The court also found true that Fonseca used a knife in the commission of the assault offense (§ 1192.7, subd. (c)(23)). He was acquitted of a second count of assault with a deadly weapon (§ 245, subd. (a)(1); count 2), the lesser included offense of battery (§ 240), and attempted robbery (§§ 664/211; count 3). Fonseca admitted he suffered three prior convictions which made him presumptively ineligible for probation (Pen. Code, § 1203, subd. (e)(4): (1) in 2010 for felony driving under the influence of alcohol (DUI) within 10 years of a prior felony DUI (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a)); (2) in 2019 for making a criminal threat (Pen. Code, § 422, subd. (a)); and (3) in 2021 for grand theft (Pen. Code, § 487, subd. (a)). The 2019 conviction for