>P. v. Lomax

















Filed
10/5/10 P. v. Lomax CA5













NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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



FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Appellant, v. CARL LAFAYETTE LOMAX, Defendant and Appellant.

F058346 (Super. Ct. No. BF123002A) >OPINION

APPEAL from
a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.

Edmund G.
Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Appellant.

James M.
Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.

>STATEMENT OF THE CASE

On
June 17, 2008, the Kern County District Attorney filed an information in
superior court charging defendant Carl Lafayette Lomax as follows:

Count
1--unlawful possession of a firearm by a felon previously convicted of a
violent felony (voluntary manslaughter) (Pen. Code, § 12021.1, subd. (a));^[1]

Count 2--unlawful possession of a firearm by a
felon (§ 12021, subd. (a)(1);^[2]

Count
3--unlawful possession of a loaded firearm by an active member of a criminal
street gang (§ 12031, subd. (a)(2)(C)); and

Count 4--unlawful carrying of a loaded firearm,
not registered to him, in a public place or street (§ 12031, subd.
(a)(2)(F)).^[3]

As to all
four counts, the district attorney specially alleged defendant had sustained
two felony convictions (§ 667, subds. (a)-(e)). As to count 3, the district attorney alleged
defendant's two prior convictions were for serious felonies (§ 667, subd.
(a)).

That same
day, defendant pleaded not guilty to the substantive counts and denied the
truth of the special allegations.

On August
8, 2008, defendant filed a motion to set aside the information
(§ 995). On August 15, 2008,
the People filed written opposition. On
August 18, 2008, the court granted the motion as to count 3 only.

On
October 31, 2008, defendant rejected an offer of six years in state prison
even though his maximum exposure was 50 years to life.

On
November 13, 2008, the court dismissed count 4 on motion of the district
attorney.

On
November 18, 2008, after impanelment of the jury and commencement of
testimony, the court declared a mistrial as to counts 1 and 2 due to delayed
discovery.

On
December 23, 2008, the court denied defendant's motion to dismiss the case
and reset the matter for a readiness conference.

On
December 30, 2008, defendant rejected plea offers from the court and the
prosecution. On January 9, 2009, a
new jury was impaneled to retry the case.


On
January 15, 2009, the jury found defendant guilty of counts 1 and 2 and,
after defendant's waiver of a jury trial, the court found the special
allegations true as to counts 1 and 2.

On
February 25, 2009, defendant filed a motion
for new trial (§ 1181, subd. (5)) or for dismissal. On March 3, 2009, the prosecution filed
written opposition to the motion.

On
July 28, 2009, defendant filed a request to dismiss his strike priors.

On
July 31, 2009, the court denied defendant's motion for new trial but
granted his motion to strike his 1992^[4] prior felony conviction â€