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The People v. Juan Jose Morales

December 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUAN JOSE MORALES, DEFENDANT AND APPELLANT.



(Sonoma County Super. Ct. No. SCR451243)

The opinion of the court was delivered by: Rivera, J.

P. v. Morales

CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case returns to us after we reversed the conviction on one of the counts of which defendant Juan Jose Morales was found guilty and remanded for resentencing. (People v. Morales (2008) 168 Cal.App.4th 1075, 1085 (Morales I).) Defendant contends that the trial court erred in not staying sentence on one of the remaining counts; that it misunderstood the scope of its discretion in imposing two enhancements; and that he was deprived of effective assistance of counsel. We affirm.

I. BACKGROUND*fn1

A jury found defendant guilty of "possession of a firearm by a felon (Pen. Code,*fn2 § 12021, subd. (a)(1)) (counts I, V, and XII); possession of ammunition by a felon (§ 12316, subd. (b)(1)) (counts II and VI); attempting to evade a police officer (Veh. Code, § 2800.2, subd. (a)) (count III); misdemeanor resisting and obstructing a police officer (§ 148, subd. (a)(1)) (count IV); child abuse likely to create great bodily harm (§ 273a, subd. (a)) (count VII); assault with a firearm (§ 245, subd. (a)(2)) (count IX); shooting at an inhabited dwelling (§ 246) (count X); and first degree burglary (§ 459) (count XI). Various enhancement allegations were also found true. Defendant was [originally] sentenced to 10 years plus 25 years to life in prison." (Morales I, supra, 168 Cal.App.4th at p. 1078.)

The charges arose out of three incidents. The first took place on August 4, 2004, the day after Rhonda Oliva had given birth to his son.*fn3 Defendant was visiting Oliva at the hospital, and the two had a "big fight." A security officer was called, and found the room in disarray, with a food tray table and other furniture knocked over and bed sheets thrown to the floor. The officer escorted defendant out of the hospital, and defendant told him he wanted to retrieve a gun from Oliva's car, saying it belonged to a friend. A police officer searched the car and found a loaded semiautomatic pistol under the driver's seat.

The second incident took place on November 17, 2004, when "defendant was driving a car with 16-year-old Kayla in the passenger seat. Police Officer Richard Celli of the Santa Rosa Police Department saw that the car had expired registration tags. He put on his overhead lights and siren to signal defendant's car to pull over. The car signaled to the right but continued on the road. Celli pursued defendant, who evaded him and sped through a stop sign without stopping. After going through a red light, defendant's car collided with a telephone pole, spun around, and hit a metal post." (Morales I, supra, 168 Cal.App.4th at p. 1078, fn. omitted.) A loaded .380 caliber pistol magazine was found in the driver's door pocket, and a loaded .380 semi-automatic pistol and magazine were found nearby.

The third incident occurred on November 23, 2004. "Rhonda Oliva and Sebastian Fent were at Oliva's home, along with Oliva's three-month-old baby, defendant's son. In the middle of the night, defendant began banging on the front door, tearing off the screen door. He moved to the bedroom window and tore at the window screen while yelling. Fent called 911[, and Oliva took him to the garage to get something to protect himself. Fent got a bat from the garage], then went into the kitchen and locked the door between the kitchen and the garage. Fent heard a crash or bang in the garage, and defendant began pounding on the door leading from the garage to the kitchen. He fired three or four shots through the kitchen door. Two of the shots hit Fent's legs." (Morales I, supra, 168 Cal.App.4th at pp. 1078-1079, fns. omitted.) Defendant later told a police officer that he was concerned that Oliva was not feeding his son, went into the garage to find a bat, and found a gun there. He said that after the incident, he threw it into a field.*fn4

In Morales I, we concluded defendant's actions in the November 23, 2004, incident did not meet the elements of section 246, shooting at an inhabited dwelling, reversed count X, and remanded the matter for resentencing. (Morales I, supra, 168 Cal.App.4th at pp. 1079-1082, 1085.)

On remand, the trial court sentenced defendant to a total prison sentence of 24 years and eight months. On count IX, assault with a firearm (§ 245, subd. (a)(2)), it imposed the upper term of four years, with a three-year enhancement for infliction of great bodily injury (§ 12022.7, subd. (a)), a 10-year enhancement for personal use of a firearm (§ 12022.5, subds. (a)-(d)), and a two-year out-on-bail enhancement (§ 12022.1). The court imposed an eight-month sentence (one-third the midterm) on count I; a concurrent three-year term on count V; a consecutive sentence of one year and four months (one-third the midterm) on count VII, with a two-year out-on-bail enhancement (§ 12022.1); a consecutive eight-month sentence (one-third ...


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