People v. Lomeli CA2/8

Filed 6/2/14 P. v. Lomeli CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B248573

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA080299) v.

MARCOS DAVILA LOMELI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. David Sotelo, Judge. Affirmed.

Edward Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

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Marcos Davila Lomeli appeals from a judgment which sentences him to state prison for a crime spree that began with the murders of James and Gabriela (Gabby) Stein.1 Lomeli contends the trial court erred in imposing a consecutive sentence on count 18, for dissuading a witness, as it should have been stayed under Penal Code2 section 654. Lomeli further contends the trial court erred when it imposed a $10,000 parole revocation fine under section 1202.45. We affirm the judgment. FACTS Lomeli and his girlfriend, Jenny Salazar, lived with Gabby and James in a property owned by James’s mother, Gladys. On December 8, 2010, Gabby’s daughter heard Lomeli threaten to kill James “like a dog” while she was visiting. When James visited his mother the following day, she noticed he looked like he had been in a fight. That was the last time Gladys saw James. On December 16, 2010, Gladys asked her two other sons to check on James. They were unable to find him at the property. Gladys reported James missing on December 17, 2010. The police conducted three welfare checks at the property to investigate James’s disappearance, but were unable to determine James’s whereabouts. They observed Gabby on two of these visits and last saw her on December 28, 2010. In January 2011, Lomeli approached Richard Hugh, an acquaintance of Salazar’s, for financial assistance. He told Hugh he had inherited a sum of money and wanted help investing it. Hugh set up a time to meet with him, but Lomeli did not show up. Later that night, Salazar went to Hugh’s home and told him Lomeli was outside, down the block. After they got into Hugh’s truck and had driven a short distance, Salazar demanded Hugh’s iPhone. She slashed him across the throat with a knife and stabbed him in the buttocks during the ensuing struggle. When Salazar got out of the truck, Hugh followed her. Lomeli then approached the vehicle. Hugh told Lomeli what had