People v. Borjas CA2/6

Filed 5/18/16 P. v. Borjas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B263232 (Super. Ct. No. 2014023872) Plaintiff and Respondent, (Ventura County)

v.

TONY CASTANEDA BORJAS,

Defendant and Appellant.

Tony Castaneda Borjas appeals a judgment and claims sentencing error. In 2014, he was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) with a jury finding that he inflicted great bodily injury. (§ 12022.7, subd. (a).) The trial court found he fell within the purview of the "Three Strikes" law and sentenced him to an aggregate term of 16 years. Borjas had a prior 2010 felony conviction for inflicting corporal injury on a cohabitant (§ 273.5) with a great bodily injury enhancement (§ 12022.7, subd. (a)). The court in the 2010 case struck the enhancement "in the interest of justice." We conclude that the trial court did not err by finding that the 2010 prior conviction and enhancement constituted a prior serious felony strike conviction. (§§ 667, subds. (a)(1), (b)-(i); 1170.12, subd. (a)-(d).) We affirm.

1 All statutory references are to the Penal Code.

FACTS In 2010, Borjas pled guilty to inflicting corporal injury to a cohabitant (§ 273.5, subd. (a)) and he admitted the truth of a great bodily injury enhancement for that offense (§ 12022.7). During sentencing, the trial court struck the enhancement. It said, "The Court does find based on the factual findings of the injuries that are not slighted or discounted but on the lower level side of injuries; therefore, the Court finds it is in the interest of justice to strike the great bodily injury allegation . . . therefore, imposing a total aggregate term of three years in the Department of Corrections." On May 4, 2014, Borjas had an argument with Enrique Cordova. During the altercation, Borjas hit Cordova with "an aluminum bat." Cordova sustained multiple injuries and "was admitted to the emergency room" of a hospital "with facial trauma." He had a "hemorrhage and bruising over the left side of the lower jaw" and multiple nasal fractures. He had fractures inside his "eye socket." Borjas was charged with assaulting Cordova with "a deadly weapon"--the baseball bat. After a jury trial, Borjas was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) (count 1), assault with force likely to cause great bodily injury (§245, subd. (a)(4)) (count 2), with a jury finding that he had inflicted great bodily injury (§ 12022.7, subd. (a)). The People alleged that Borjas had a prior 2010 serious felony strike conviction under the Three Strikes law (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subd. (a)-(d)) and that he served one prior prison term (§ 667.5, subd. (b)). Borjas waived a jury trial on the prior conviction and prior prison term allegations. The trial court found those allegations were true. Before the trial court sentenced Borjas, his counsel argued that the court could not consider the 2010 conviction as a serious felony strike under the Three Strikes law. He noted that in that 2010 case the trial court struck the great bodily injury enhancement and consequently Borjas must be treated as if he "never suffered a conviction in the initial instance." The court disagreed.