P. v. Lomas CA6

Filed 3/20/13 P. v. Lomas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038068 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. BB945131)

v.

FRANCISCO JAVIER LOMAS,

Defendant and Appellant.

I. INTRODUCTION In March 2011, defendant Francisco Javier Lomas pleaded no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)),1 and possession for sale of methamphetamine (former Health & Saf. Code, § 11378). He also admitted that he had a prior conviction involving a controlled substance (Health & Saf. Code, § 11370.2), and that he had two prior strikes (former §§ 667, subds. (b)-(i), 1170.12). In August 2011, after the trial court struck one of defendant’s two strikes, the court sentenced him to 12 years four months in prison. The court granted defendant 804 days of custody credits, consisting of 536 actual days plus 268 days conduct credit under section 4019. On appeal, defendant contends that he is entitled to additional conduct credit under the October 2011 version of section 4019. For reasons that we will explain, we conclude that defendant is not entitled to additional conduct credit.

1 All further statutory references are to the Penal Code unless otherwise indicated.

II. FACTUAL AND PROCEDURAL BACKGROUND In December 2009, the victim reported to police that defendant had kicked her, stomped on her, punched her on the mouth, and slapped her before leaving the residence that night.2 The victim, who was the mother of defendant’s child and who had been living with defendant for two years, had a cut on her lip. The victim consented to a search of the residence, where the police found two plastic bags containing 146 grams of a substance later determined to be crystal methamphetamine. The police also found more than $54,000 in cash, including $4,875 on defendant when he was located and arrested a few hours later. Further, the police found a cell phone containing a picture of a motorcycle and a text message reading, “ ‘give me 2 ozs and it’s yours.’ ” In March 2010, defendant was charged by first amended complaint with assault with a deadly weapon or by means of force likely to produce great bodily injury (former § 245, subd. (a)(1); count 1), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count 2), and possession for sale of methamphetamine (former Health & Saf. Code, § 11378; count 3). The complaint further alleged that he personally inflicted great bodily injury on the victim (§ 12022.7), that he had a prior conviction for violating Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2), that he had two prior serious felony convictions and two prior strikes (former §§ 667, subds. (a), (b)-(i), 1170.12), and that he had served two prior prison terms (§ 667.5, subd. (b)). In March 2011, defendant pleaded no contest to count 2, inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), and to count 3, possession for sale of methamphetamine (former Health & Saf. Code, § 11378). He also admitted that he had a prior conviction for violating Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2), and that he had two prior strikes (former §§ 667, subds. (b)-(i), 1170.12).