People v. Golonka CA1/2

Filed 11/27/13 P. v. Golonka CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A135691 v. JAMISON GOLONKA, (Contra Costa County Super. Ct. No. 51111699) Defendant and Appellant.

Jamison Golonka was charged with two counts of committing a lewd or lascivious act with a child (Pen. Code1, § 288, subd. (a)) and one count of possession of child pornography (§ 311.11, subd. (a)). The case went to trial and a jury found Golonka guilty on the child pornography count; not guilty on one child molestation count; and guilty of the lesser included offense of simple battery on the other child molestation count. Before trial, the court denied Golonka’s motion to sever the child molestation counts from the child pornography count. Golonka asserts that the trial court abused its discretion when it denied his motion because the evidence was not cross-admissible and the court impermissibly allowed a weaker case to be joined with a stronger one. He claims that the alleged abuse of discretion resulted in gross unfairness that deprived him of a fair trial, requiring us to reverse his conviction for simple battery.

1 Statutory references are to the Penal Code, unless otherwise indicated.

1

We find no abuse of discretion in the trial court’s denial of Golonka’s severance motion, nor do we find that the joinder of the counts resulted in gross unfairness to Golonka. Accordingly, we affirm the judgment. BACKGROUND I. Procedural Background On August 1, 2011, the People filed an information alleging two counts of committing a lewd or lascivious act with a child under the age of 14 (§ 288, subd. (a)) (counts one and two) and one count of possession of child pornography (§ 311.11, subd. (a)) (count three). Counts one and two included the allegation that Golonka was ineligible for probation because he had had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)). On January 12, 2012, Golonka moved to sever counts one and two from count three. The court considered and denied the motion the next day, determining that evidence on the charges was cross-admissible and that gross unfairness to Golonka would not result. Following selection of a jury, presentation of evidence began on January 23, 2012. The case was submitted to the jury on January 30, 2012, and the jury returned a verdict the next day. On count one, the jury found Golonka guilty of the lesser included offense of simple battery (§§ 242, 243, subd. (a)). The jury found Golonka not guilty on count two and guilty on count three. The jury also found the parole ineligibility allegations attached to counts one and two to be not true. At a sentencing hearing on April 20, 2012, the court placed Golonka on probation for five years, conditioned on serving 400 days in county jail and registration as a sex offender. Golonka filed a timely notice of appeal on June 7, 2012. II. Factual Background A. Prosecution Case On May 4, 2010, David Mathers, a detective with the Martinez Police Department, was monitoring internet file sharing activity and found a user who was sharing five files