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People v. Borba

California Court of Appeals, Sixth District
Mar 14, 2011
No. H035641 (Cal. Ct. App. Mar. 14, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CHESTER JOHN BORBA, Defendant and Appellant. H035641 California Court of Appeal, Sixth District March 14, 2011

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. SS092096.

PREMO, J.

Defendant Chester John Borba was convicted by a jury of one felony count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 1); one felony count of aggravated elder abuse (§ 368, subd. (b)(1), count 2); one misdemeanor count of terrorist threats (§ 422, count 3); and one misdemeanor count of exhibiting a deadly weapon (a knife) (§ 417, subd. (a)(1), count 4). At a bifurcated court trial, the court found true the allegation that Borba had suffered a prior strike conviction pursuant to section 1170.12, subdivision (c)(1). He was subsequently sentenced to a total term of six years in prison.

Further unspecified statutory references are to the Penal Code.

We appointed counsel to represent Borba in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Borba of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Borba.

I. Factual and Procedural Background

On July 14, 2009, Borba attacked 69-year-old Frank Morales, whom he had known for a number of years, at the home of a mutual friend, Stan Peden.

About three months prior to the assault, Peden had offered Borba an inoperative Ford Ranger truck that was sitting on his property. When Borba failed to pick up the vehicle, Peden offered it to Morales about a week before the incident as Peden was afraid he would be cited for a code violation. A couple of days later, Borba comes by and tells Peden he is taking the truck, but Peden tells him he needs to clear it with Morales first. A day or two after that, Borba returned to Peden’s house with a trailer and, after telling Peden he had cleared it with Morales, hauled the Ranger away. Morales arrived about an hour later with a trailer to pick up the Ranger, and denied that Borba had ever checked with him about taking it.

On the day of the assault, Morales was sitting in a chair on Peden’s front porch, visiting with Peden, who was suffering from a stomach flu and would periodically move to the other side of the porch to vomit. Borba arrived on his motorcycle, which he parked approximately 25 feet from the porch. Peden was again off to the side, trying to throw up, as Borba walked towards the porch. As he reached the porch, Morales asked Borba what he had done “with my Ranger?” At that point, Borba “went ballistic, ” pulling Morales’s chair over and, as Morales was lying on the ground, kicking him repeatedly in the head. Morales was able to grab Borba by the neck and pin him to the ground, telling him to settle down, which Borba eventually did. Morales released him, and Borba walked inside and grabbed a can of soda from Peden’s refrigerator, which he then drank on the porch. After finishing his soda, Borba walked back to his motorcycle. He pulled out a knife and said, “This is for you [Morales]. Next time I see you I’ll slit your throat.” Borba got on his motorcycle and rode off.

After Morales returned home, his 22-year-old grandson contacted the police and then went out looking for Borba, armed with a baseball bat. Morales’s grandson did not find Borba and when he returned home, Morales told him to “[l]et the law take care of it.”

Monterey County Sheriff’s Deputy Jose Cancino responded and took Morales’s statement. Cancino called Borba to talk to him about the incident, but Borba said he could not do so because he was on the road. The call then disconnected.

Morales suffered some dizziness, pain and a “big ol’ bump, ” which he treated with an ice pack. He initially said he did not think that Borba would actually follow through on his threat, but Morales had trouble sleeping for a couple of weeks afterwards and kept a dog in front of his motorhome so “if the dog starts barking I could do something about it.”

Several months later, in September 2009, Borba was arrested for an unrelated incident. Cancino advised him of his Miranda rights and questioned him about his fight with Morales. Borba told Cancino that he had apologized to Morales and his family and that “he was wrong.” Borba then said he did not want to talk about it anymore. However, when Cancino spoke to Morales that same evening, Morales denied having had any contact with Borba since the assault.

This testimony violated a pretrial in limine ruling precluding the arresting officer from referencing Borba’s arrest on an unrelated incident. However, defense counsel made no contemporaneous objection.

Miranda v. Arizona (1966) 384 U.S. 436.

Following the close of evidence, defense counsel moved for a mistrial based on the testimony by Cancino that Borba was under arrest for an unrelated incident when he was questioned about the fight with Morales. Prior to the trial, the court had granted the defense’s in limine motion precluding testimony about Borba’s unrelated arrest. Defense counsel declined the court’s offer to instruct the jury to disregard the officer’s testimony on this matter, as it would simply reinforce the testimony to the jury. The court denied the mistrial motion, finding that “in the context it [i.e., the improper testimony] sort of gets lost, frankly, the context of what was going on with the interview, the arrest, and then how the--how the testimony actually was delivered to the jury. I just don’t think there was any emphasis on it.”

The jury convicted Borba on all counts. After the court denied his Romero motion, Borba was sentenced to six years in prison on count 1, consisting of the middle term of three years doubled for the strike prior. The court imposed the middle term of three years for count 2, but stayed that sentence pursuant to section 654, and sentenced him to time served on counts 3 and 4. Borba was awarded 255 days of credit consisting of 213 days of custody credits and 42 days of conduct credits. The court further imposed a restitution fine of $2,400 pursuant to section 1202.4, subdivision (b), and an additional fine of $2,400 pursuant to section 1202.45, to be stayed unless parole is revoked. Victim restitution, in an amount to be determined, was ordered pursuant to section 1202.4, subdivision (f). Finally, the court imposed a court security fee of $120 ($30 per conviction) pursuant to section 1465.8 and a conviction assessment fee of $120 pursuant to Government Code section 70373.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Pursuant to an ex parte motion, Borba sought and was awarded an additional 64 days of conduct credits and the abstract of judgment was amended accordingly.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.

II. Disposition

The judgment is affirmed.

WE CONCUR: Rushing, P.J. Elia, J.


Summaries of

People v. Borba

California Court of Appeals, Sixth District
Mar 14, 2011
No. H035641 (Cal. Ct. App. Mar. 14, 2011)
Case details for

People v. Borba

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHESTER JOHN BORBA, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Mar 14, 2011

Citations

No. H035641 (Cal. Ct. App. Mar. 14, 2011)