People v. Ponce CA2/8

Filed 10/16/13 P. v. Ponce CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B240885

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA351149) v.

ISIDRO PONCE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed as modified.

Jeralyn Keller, under appointment by the Court Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Isidro Ponce appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder (Pen. Code, § 187, subd. (a)).1 The trial court sentenced him to prison to 25 years to life and imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and stayed a $200 parole revocation fine (§ 1202.45), imposed a $40 court security assessment and a $30 criminal conviction assessment. He was awarded presentence credit in the amount of 1,178 days of actual custody. Defendant contends the trial court abused its discretion and violated his constitutional rights to a fair trial and to counsel by denying his standby counsel’s motion for a continuance. He contends, and respondent concedes, the $200 parole revocation fine must be stricken under the ex post facto clauses of the United States and California Constitutions, because section 1202.45 was enacted and became effective after the date of his offense. He further contends, and respondent agrees, he must be awarded presentence conduct credit in addition to his actual custody credit, because he committed the murder in 1990, which was before the effective date of section 2933.2, the statutory provision that prohibits a convicted murderer from accruing conduct credit. We conclude the trial court acted well within its broad discretion in denying the motion for a continuance at trial. We modify the judgment, however, by striking the $200 parole revocation fine and by adding 588 conduct credit days to his award of 1,178 actual custody days for a total presentence credit award of 1,766 days. As so modified, we affirm the judgment. BACKGROUND On February 26, 1990, the body of Alma Harvey, age 83, was discovered on her bed in her Los Angeles duplex. She had died from asphyxia caused by manual strangulation. What appeared to be dried semen was located on the bedspread near her thigh, and her pajama bottoms and an adult diaper were down around her ankles. During a cold case investigation 12 years later, in February 2002, sperm cells were found on the bedspread. Their DNA profile matched the DNA profile on defendant’s reference swab.