Lopez v. Super. Ct. 4/23/09 CA 4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G040679

Case Date: 07/30/2009

Preview:Filed 4/23/09

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

DANIEL LOPEZ, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. G040679 (Super. Ct. No. FVAFS700968) OPINION

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of San Bernardino County, Gilbert G. Ochoa, Judge. Petition denied. Doreen Boxer, Public Defender, Lyly Brantley and Pamela P. King, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Michael A. Ramos, District Attorney, Grover D. Merritt and Grace B. Parsons, Deputy District Attorneys, for Real Party in Interest.

Petitioner Daniel Lopez seeks a writ of mandate directing the superior court (1) to vacate its order denying his motion to dismiss the Peoples petition under Penal Code section 2970, and (2) to address the merits of his motion to dismiss.1 The Peoples section 2970 petition sought to extend Lopezs commitment to a state hospital as a mentally disordered offender MDO for an additional year. Lopezs motion to dismiss the petition argued he was not an MDO because his underlying crime did not involve force or violence as required under section 2962. We deny Lopezs petition for a writ of mandate because his challenge to his original certification as an MDO is untimely.

FACTS

On December 26, 2002, Lopez attempted to rob a laundromat patron. As the victim attempted to enter the laundry, Lopez approached him demanding "whatever change he had in his pocket." When the victim said he had no change "and to leave him alone," Lopez stated, "I know you got some change for me, give me your change." The victim replied, "I dont have change for you, Im going to do my laundry." Lopez stepped back. The victim entered the laundromat and prepared to wash his laundry. The victim then went out to his vehicle to get more laundry and his detergent. When the victim reentered the laundromat, Lopez approached him "in a more threatening manner, standing very close to him, and demanded that he give him any money that he had in his pocket." The victim told Lopez to move out of the way and "leave him alone." Lopez said, "Give me your fucking money. I know you have money. Give me your chump change." The victim went back out to his vehicle to pick up other "necessities . . . , as well as his steering column locking device (,,The Club)" for protection if necessary.

1

All statutory references are to the Penal Code. 2

After the victim had been in the laundromat for several minutes, Lopez approached him from behind and entered into a "fighting stance directly in front of him within six inches of his face." Lopez demanded, "Give me all your money. I know you have money. Give me whatever money you have." Lopez "reached down into his front pocket." The victim, afraid that Lopez "might have a knife or a gun," hit him across the head with the Club. Lopez ran outside. He was apprehended shortly thereafter, and police found a knife located in his right front pocket. Lopez was read his rights under Miranda v. Arizona (1966) 384 U.S. 436. He stated, inter alia, the victims "mere presence was offensive to him" and the victim had invaded his space and privacy. Lopez stated "he was a very spiritual person, and he could read thoughts and could get into [the victims] mind, and he knew that [the victim] was just invading his privacy . . . ." Lopez was charged with attempted second-degree robbery (

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