P. v. Ulloa CA4/3

Filed 4/19/13 P. v. Ulloa CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046365

v. (Super. Ct. No. 11CF1868)

GERMAN ULLOA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed in part and reversed in part. Sachi Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of, inter alia, assaulting, battering and stealing from his former girlfriend Margarita Velasco. It is undisputed one of his convictions must be reversed under the lesser included offense doctrine and the amount of his restitution fine must be reduced $40. The only remaining issue is whether the trial court erred in failing to stay appellant’s sentence for theft pursuant to Penal Code section 654. Finding no error in this regard, we affirm the judgment in all other respects. FACTS On November 13, 2010, appellant grabbed Velasco’s cell phone from her and broke it because he thought she was talking to another man. Velasco tried to defuse the situation, but appellant got so worked up, he head-butted her, and she ended up calling the police. In the wake of this incident, Velasco moved to a separate residence. Although she considered her relationship with appellant to be over, she still stayed in touch with him regarding their two children. In fact, on the night of December 11, 2010, she had appellant baby-sit the children while she was at work. Velasco worked through the night, and the following day, appellant called her and asked when she was coming home. Velasco said she would be home in a while, but appellant was suspicious. After he hung up, he called Velasco’s boss and learned she wasn’t at work. He then called Velasco back and accused her of lying to him. Velasco told appellant she was on her way to get gas and would be home soon. When Velasco arrived home, appellant questioned her about her whereabouts, and they began to argue in Velasco’s bedroom. During this contretemps, Velasco received a phone call from her friend Joel Madrid. She told Madrid she would call him back and ended the call, but this only fueled appellant’s suspicions. He grabbed the phone from Velasco, went into the bathroom and closed the door. Velasco opened the door and discovered that appellant, as he was wont to do, was going through her phone to find out who had just called her. Velasco tried to