(Super. Ct. Nos. SF111111A, SF111111B)
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants Jeffrey Lynn Moore and Steven Eugene Moore of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c); statutory references that follow are to the Penal Code unless otherwise stated.) Jeffrey Moore admitted that he previously had served three prison terms. (§ 667.5, subd. (b).) The trial court sentenced him to state prison for four years, assessing the low term of two years for the robbery plus two enhancements of one year each for prior prison terms; the remaining prior prison term enhancement was dismissed. Steven Moore was sentenced to state prison for the upper term of five years. Sentence was imposed in July 2009.
On appeal, both defendants contend the trial court erred by denying their motions to dismiss the complaint and information on the ground that the court previously had dismissed two other actions charging them with the same robbery at issue in the present case. Steven Moore further contends the prosecutor committed misconduct in connection with the motion to dismiss the complaint and in his closing summation. We find the first contention dispositive and have no occasion to consider the remaining contentions.
In August 2008, Santiago Macias spent a day working in the fields near Galt and was planning to eat a meal with his friend Emilio Jauregui in Stockton. Macias used a $20 bill to buy take-out food at a restaurant and beer at a liquor store. He placed the change, approximately $15, in his pants pocket and walked toward the market where Jauregui worked. He sat down by himself in front of an abandoned building across the street from the market.
While Macias was seated, three people later identified as Vida Gray, defendant Jeffrey Moore, and defendant Steven Moore approached Macias and surrounded him. Gray took Macias's beer, drank some of it, and asked him to give her some of his food. He complied. Afraid that the group was going to rob him, Macias stood up and started walking toward the market. Jeffrey Moore grabbed Macias and held him while Steven Moore hit him and stole the change from his pocket. Jeffrey Moore released Macias and hit him before leaving the place of the robbery with Steven Moore.
Macias got up, ran to the market, and told Jauregui to call the police. Jauregui did that and then Macias led him out outside and identified defendants, who were walking away shirtless, as being the assailants. Jauregui got in his pickup truck and followed defendants until they stopped under a shady tree several blocks away. Jauregui parked approximately half a block away, telephoned his daughter, and asked her to tell the police where defendants were located. After police arrived and detained defendants, Jauregui went back to the market.
The police brought Macias and Jauregui to the place where defendants were being detained and Macias identified defendants as being the assailants. Jauregui similarly identified defendants as being the people whom Macias had earlier identified as being the assailants.
The police searched Steven Moore and found six $1 bills in his possession. There was no evidence that police searched Jeffrey Moore or found any money in his possession.
Neither defendant testified at trial.
Defendants contend the trial court erred when it found that section 1387.1 allowed the prosecution to file the robbery charges a third time. Thus, they claim the court erred in denying their motions to dismiss the charges pursuant to section 1387. Specifically, they argue the court erred in finding that at least one of the two prior dismissals was due solely to excusable neglect within the meaning of section 1387.1, such that the ...