People v. Moore CA5

Filed 9/5/14 P. v. Moore CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F065440 Plaintiff and Respondent, (Super. Ct. No. F12901227) v.

DUAL ESCO MOORE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Donna J. Hooper, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J., and Franson, J.

INTRODUCTION Appellant, Dual Esco Moore, was convicted on June 4, 2012, at the conclusion of a jury trial of attempted second degree robbery (Pen. Code, §§ 211 & 664, count 1)1 and acquitted of second degree commercial burglary (§§ 459 & 460, count 2). In a bifurcated proceeding, appellant waived his right to a trial and admitted a prior prison term enhancement (§ 667.5, subd. (b)). On July 2, 2012, the trial court sentenced appellant to prison for two years plus a consecutive term of one year for the prior prison term enhancement. Appellant received actual custody credits of 49 days and conduct credits of 7 days, for total custody credits of 56 days. Appellant contends the trial court erred in failing to instruct the jury on self- defense. Appellant also argues that the trial court erred in limiting his conduct credits pursuant to section 2933.1 rather than awarding him two days of custody credits for every two days he was in jail pursuant to section 4019. We order a correction be made to appellant’s conduct credits but otherwise affirm the judgment. FACTS Christopher Montoya was working on February 18, 2012, as a loss prevention agent at the CVS pharmacy at Shields and West in Fresno, California. One of Montoya’s duties was to prevent shoplifting. Montoya saw appellant in the store with two others. Appellant had a backpack and was standing by the photo kiosk in the front of the store. It is against store policy to stay in the store with a backpack unless it is left at the register. Appellant left the store with the backpack for a few minutes and then returned still wearing the backpack. The other two men were still in the store. Appellant made his way to the liquor aisle. Montoya was watching appellant. A video monitor recorded appellant taking three bottles of vodka. The video recording was