People v. Ortega CA2/1

Filed 7/28/16 P. v. Ortega CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B265550

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA065013) v.

VICTOR S. ORTEGA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Reversed. Emily Lowther Brough, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________________

Appellant Victor S. Ortega appeals his conviction on one count of assault by 1 means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), one count of taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), one count of criminal threat (§ 422, subd. (a)), and one count of corporal injury to a spouse or girlfriend (§ 273, subd. (a)). He contends that with respect to his criminal threat conviction, jurors should have been instructed on the lesser included offense of attempted criminal threats. He also argues, and the Attorney General agrees, that he is entitled to eight additional days of presentence custody credit. We modify the judgment to add eight days of presentence custody credit, and we reverse and remand the criminal threat count in order for the People to either retry that count or reduce the charge to attempted criminal threat. BACKGROUND On December 28, 2014, appellant and his sometime-girlfriend, Rose Escobar, 2 were traveling in Rose’s Honda Accord in Palmdale, Los Angeles. Rose drove as appellant talked on Rose’s phone. Rose suspected that appellant was receiving calls from a romantic rival named Vanessa, and she became upset with appellant. She told him to get out of her car and attempted to take her phone from him. Appellant would not release the phone and the two pulled it back and forth. Rose eventually retrieved the phone, and appellant hit her in the face several times. Rose stopped the car, got out, and left, telling appellant not to follow her. Appellant then drove away in Rose’s car. Rose was approached by a man named Armando Mejia, who offered assistance. Rose, screaming and crying, called her mother, Elvia Escobar. Rose told Elvia, who knew appellant and that appellant and Rose had dated, she felt appellant was going to kill her. Mejia gave Elvia directions to their location and Elvia, along with Rose’s father, Robert, and her brothers, Robert, Jr., and Henry, arrived several minutes later. Rose told