People v. Lynch CA3

Filed 12/8/15 P. v. Lynch CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C077867

Plaintiff and Respondent, (Super. Ct. No. 62121515)

v.

DAMON JAMAL LYNCH, JR.,

Defendant and Appellant.

Defendant Damon Jamal Lynch, Jr., entered a negotiated plea of no contest to the charge of violating Vehicle Code section 10851 and admitted personally using a firearm during commission of the crime. His request to be released on his own recognizance pending sentencing pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz) was denied. The trial court denied probation and sentenced defendant to an aggregate term of five years in state prison.

1

On appeal, defendant contends the trial court abused its discretion when it denied his Cruz waiver. He acknowledges the issue is “technically moot,” but nonetheless urges us to exercise our inherent discretion to resolve the issue because it is “a broad public interest [issue] that is likely to recur.” (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1088.) We dismiss the appeal as moot.

FACTS AND PROCEEDINGS

Given the issue raised in this appeal, a recitation of the facts underlying defendant’s conviction is unnecessary. Defendant was charged by amended information with robbery (Pen. Code, § 211 -- count 1), carjacking (Pen. Code, § 215, subd. (a) -- count 2), and dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1) -- count 3). The information alleged defendant personally used a firearm in the commission of the crimes (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subd. (b); unless otherwise stated, statutory references that follow are to the Penal Code). At the conclusion of a jury trial, the court granted defendant’s motion for directed verdict of acquittal as to count 1. The jury found defendant not guilty of count 3, but was unable to reach a verdict on count 2, and the court declared a mistrial as to that count. The amended information was again amended to allege an additional charge of driving or taking a vehicle without the owner’s consent and with the intent to permanently or temporarily deprive the owner of title to or possession of the automobile (Veh. Code, § 10851 -- count 4). The People dismissed counts 1 and 3. Pursuant to a negotiated plea agreement, defendant pleaded no contest to violating Vehicle Code section 10851, subdivision (a), and admitted personally using a firearm in the commission of that offense (§ 12022.5, subd. (a)(1)) in exchange for a five-year state prison sentence. Defendant also requested a Cruz waiver, as follows: