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The People v. James Archie Eugene Moore

October 17, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES ARCHIE EUGENE MOORE, JR., DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF10184)

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

P. v. Moore

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant James Archie Eugene Moore, Jr., hit his victim in the head with a wooden board and then kicked him after the victim fell to the ground. In the days following the attack, the victim went to the emergency room with migraines, left, and then returned to the hospital where doctors diagnosed him with a cranial bleed. The victim stayed in the hospital for two weeks and ran up a bill that totaled $13,777.38, which Medi-Cal*fn1 covered, plus a $90 share of medical costs that the victim owed.

A jury found defendant guilty of assault with a deadly weapon and assault by means of force likely to produce great bodily injury. The court sentenced him separately on the two convictions, for an aggregate term of 12 years in prison. The court additionally ordered defendant to pay $90 in restitution to the victim for his share of his medical costs and $13,777.38 in restitution to Medi-Cal for the amount of the victim's medical costs Medi-Cal covered. The court ordered that both amounts would accrue 10 percent interest starting March 28, 2010, the day of the crime.

Defendant appeals, contending substantial evidence did not support the conviction of assault by means of force likely to cause great bodily injury and, alternatively, Penal Code*fn2 section 654 applies and requires the sentence for that assault to be stayed. Additionally, defendant asserts the trial court improperly ordered $13,777.38 in restitution to Medi-Cal, that restitution in this amount should not be ordered to the victim, and March 28, 2010, is an improper date for interest to begin accruing on both the restitution amounts.

Although we conclude that substantial evidence supports the conviction of assault by means of force likely to produce great bodily injury, we agree with defendant that section 654 applies and the sentence on the second assault conviction must be stayed. With regard to his contentions pertaining to restitution and interest, we conclude the trial court's orders were improper because defendant should have been ordered to pay all restitution to the victim, not Medi-Cal, and interest could not begin accruing until a financial loss occurred because of defendant's crimes. Accordingly, we will affirm the convictions but remand for resentencing and modification of the restitution order.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are rather simple: On March 28, 2010, defendant and Christopher Payne were at Lonnie Johnson's house where defendant hit Payne in the head with a wooden board and then kicked him after he fell to the ground. After the attack, defendant said Payne "'deserved it'" as Payne was "out cold" on the ground. Defendant got in a pickup driven by his father and departed.

The only witnesses to defendant's attack on Payne were Cheryl Welch, who saw both the blow to the head and the kick, and Johnson, who saw only the kick.

A few days before the attack, defendant explained to Michael Price that he intended to ...


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