People v. Munoz CA3

Filed 3/29/21 P. v. Munoz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C091754, C091789

Plaintiff and Respondent, (Super. Ct. Nos. 18CF04566, 18CF06228, 19CF01936) v.

JULIO ZAMORA MUNOZ,

Defendant and Appellant.

Defendant Julio Zamora Munoz appeals a judgment and sentence entered upon convictions arising in three different criminal prosecutions.1 For ease of reference, we will refer to these actions as the “Transfer Case,” the “Assault Case,” and the “Weapon Possession Case,” as more fully defined below. Defendant complains the trial court erred in (1) failing to give a unanimity instruction in the Weapon Possession Case; (2) using a conviction from the Assault Case as a prior serious felony conviction for purposes of the three strikes law in the Weapon Possession Case; and (3) failing to have the sentence for

1 Because there is substantial overlap in their respective records, an identity of counsel, and attack judgments entered at the same time, we consolidate on our own motion, for purposes of argument and disposition, defendant’s appeals in case numbers C091754 and C091789.

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the Assault Case imposed by the same judge who took defendant’s no contest plea resolving that action. Finding no error, we will affirm. BACKGROUND On January 31, 2018, in what would become Butte County case No. 18CF06228 (the Transfer Case), defendant was sentenced to three years of felony probation in Stanislaus County for committing an assault likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)2 This matter was transferred to Butte County. On August 3, 2018, the People filed a complaint in case No. 18CF04566 (the Assault Case) charging defendant with two counts of felony assault with a deadly weapon (§ 245, subd. (a)(1); counts 1 & 2); criminal threats (§ 422, subd. (a); count 3); cruelty to an animal (§ 597, subd. (b); count 4); battery upon a peace officer (§ 243, subd. (b); count 5); and vandalism (§ 594, subd. (a); count 6). The complaint became the information on November 30, 2018. On February 14, 2019, defendant resolved the Assault Case by pleading no contest to counts 1, 4, and 5 (felony assault with a deadly weapon, cruelty to an animal, and battery on a peace officer) in a proceeding presided over by Judge Deems. The remaining counts were dismissed with a Harvey3 waiver. He also was found to have violated his probation in the Transfer Case as a result of his Assault Case plea. There was no discussion at this hearing of defendant waiving his right under People v. Arbuckle (1978) 22 Cal.3d 749 to be sentenced by the same judge accepting his plea, and defendant did not initial the Arbuckle waiver on his plea form. The matter was continued for sentencing on April 4, 2019. This hearing was later continued as a result of new charges against defendant in a third case.