P. v. Ballard 12/17/10 CA4/2

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State: California

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

Docket No: E050584

Case Date: 03/03/2011

Preview:Filed 12/17/10 P. v. Ballard CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, v. DANIEL LANCE BALLARD, JR., Defendant and Appellant. E050584 (Super.Ct.No. RIF147039) OPINION

APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed as modified. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent. Defendant and appellant Daniel Lance Ballard, Jr., appeals after he was convicted of robbery, attempted robbery, and street gang terrorism. He contends that the trial court 1

erred in imposing sentence on the street gang offense; he argues that the term for that offense should have been stayed under Penal Code section 654.1 Following this court's precedent in People v. Sanchez (2009) 179 Cal.App.4th 1297 (Fourth Dist., Div. Two), we agree with defendant that the term on count 3 should have been stayed. We therefore order the sentence modified, and we affirm the judgment as modified. FACTS AND PROCEDURAL HISTORY On November 12, 2008, Juan Ortiz, an employee of a liquor store in Perris, was taking a break outside the store, sitting on the curb. Defendant approached and demanded that Ortiz give him a dollar. Ortiz refused; defendant responded by jerking Ortiz to his feet, shoving him around the corner and pushing him up against the wall. Defendant aggressively searched Ortiz's pockets, looking for money. Ortiz tried to push defendant away. Defendant punched and kicked Ortiz. Francisco Garza, another employee, saw defendant with his hands in Ortiz's pockets. He ran over to help Ortiz. Garza told defendant to leave Ortiz alone, and then started to walk away, telling defendant that he would call the police. Defendant grabbed Garza by the slack of his jacket and threw him to the ground. Ortiz saw defendant punching Garza (Garza testified that defendant did not hit him in the face, but that Garza struck his face on the ground when defendant threw him down). Ortiz escaped, ran into the store, and used the store owner's mobile telephone to call the police. Ortiz and Garza

1

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

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saw defendant jump into the passenger seat of a silver car, which then left the area. Garza later realized that his mobile telephone was missing from the holster on his belt. A block or so away from the liquor store, sheriff's deputies found defendant in an apartment complex. Ortiz identified defendant as his assailant. He also identified another man as the driver of the silver car. Garza's mobile telephone was recovered from defendant's pocket. A gang expert testified at trial. The liquor store where the attacks occurred was in the territory of a local gang, the P-Loc Crips. Defendant claimed membership in the PLoc Crips when he was apprehended. Defendant had claimed the same affiliation in past police contacts; defendant's gang moniker was "Gangster." The gang expert opined that both defendant and the driver of the silver car, as well as other men found in the apartment with them, were gang members. A jury found defendant guilty of the robbery of Garza (

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