People v. Delacruz CA6

Filed 12/11/14 P. v. Delacruz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039109 & H039282 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS120582 & SS120567) v.

WILLIAM DELACRUZ,

Defendant and Appellant.

Defendant William Delacruz brings two appeals to this court. In case number H039109, defendant asserts there was insufficient evidence to support the jury’s finding that his prior conviction for battery with serious bodily injury, pursuant to Penal Code section 243, subdivision (d),1 was a serious felony pursuant to section 1170.2, subdivision (c)(1). In H039282, defendant argues he was denied effective assistance of counsel because his counsel advised him to admit that his prior conviction for battery with serious bodily injury was a serious felony pursuant to section 1170.2, subdivision (c)(1). Defendant asserts he was prejudiced by the admission, because there was insufficient evidence that his prior was a serious felony.

1 All further unspecified statutory references are to the Penal Code.

In conjunction with two appeals, defendant filed a petition for writ of habeas corpus in case number H040287. In the petition, defendant argued his prior conviction did not constitute a serious felony. We issued an order to show cause, returnable to the trial court. We stayed the two appeals pending the outcome of the hearing in superior court. The Monterey Superior Court held a hearing on the petition for habeas corpus on July 2, 2014, and found defendant’s 1993 prior conviction for battery with serious bodily injury was not a serious felony within the meaning of section 1170.12, subdivision (c)(1). STATEMENT OF THE CASE2 Case Number H039282 On March 21, 2012, defendant was charged by information with possession of heroin for sale, in violation of Health and Safety Code section 11351. The information also alleged defendant had a prior conviction of a serious felony (§ 1170.12, subd. (c)(1).) In September 2012, defendant filed a Romero motion to strike the prior serious felony allegation. The court denied the motion. In October 2012, defendant pleaded no contest to possession for sale of heroin and admitted that his prior conviction for battery with serious bodily injury constituted a strike. Case Number H039109 On March 30, 2012, defendant was charged by information with possession of heroin for sale in violation of Health and Safety Code section 11351. The information also alleged defendant was on probation when he committed the offense (§ 12022.1), and that he had a prior conviction of a serious felony (§ 1170.12, subd. (c)(1)). Defendant filed a motion pursuant to section 1385 requesting that the court dismiss his prior serious felony conviction, which the court denied.