CA Unpub Decisions

Jose Antonio Osorno, Jr. appeals his conviction by jury of two counts of sexual intercourse with a child 10 years of age or younger (counts 1 & 3; Pen. Code, § 288.7, subd. (a)) and three counts of lewd or lascivious act on a child under 14 years of age (counts 2, 4, & 5; § 288, subd. (a)). Appellant admitted two prior strike convictions (§§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d)) and two prior serious felony convictions (§ 667, subd. (a)(1)), and was sentenced to 385 years to life state prison. Appellant contends that the admission of uncharged acts of sexual misconduct pursuant to Evidence Code section 1108 denied him a fair trial and violated his right to due process and equal protection. We affirm.

Defendant Edward Ortiz pleaded no contest to assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)), and was placed on felony probation. Upon defendant’s timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no arguable issues. We notified defendant of his right to submit written argument on his own behalf, and received no response.
We have reviewed the entire record to determine if there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440–441.) We include here a brief description of the facts and procedural history of the case, and the conviction and punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123–124.) Finding no arguable issue, we will affirm the judgment.

In our first opinion in this case, we held the crime of unlawfully acquiring or retaining access card information (Pen. Code, § 484e, subd. (d)) is outside the scope of Proposition 47, and therefore the trial court properly denied appellant’s petition to reduce her convictions for that offense from felonies to misdemeanors. (People v. McCutchan (June 7, 2016, G051920) [nonpub. opn.].) However, the Supreme Court granted review and then transferred the case back to us for reconsideration in light of its decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski).

A jury convicted Chellyn Jones of multiple counts of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1); counts 3-8, 11-20) and grand theft (Pen. Code, § 487, subd. (a); count 21). Jones waived a jury trial and admitted she had served three prior prison terms (Pen. Code, §§ 667.5, subd. (b), 668) and suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 and 668). She thereafter pleaded guilty to failing to appear at her sentencing hearing (Pen. Code, § 1320, subd. (b)), and admitted an allegation that she had committed the crime while out on bail (Pen. Code, § 12022.1, subd. (b)). On Jones's motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the trial court struck her strike prior conviction. It exercised its discretion to also strike her prior prison terms and the on-bail enhancement. The court sentenced Jones to a five-year prison term on count 3, concurrent three-year midterms on counts 4 through 8 and 11 through 20, and concu

Defendant and appellant Tony Leon Gray contends that this case must be remanded for resentencing because the trial court imposed an unauthorized sentence. The People agree with defendant. For the reasons set forth below, we remand this case to the trial court.

On July 21, 2016, defendant and appellant Tiffany Lane Ellis entered a plea of no contest to child stealing, in violation of Penal Code section 278. Imposition of sentence was suspended. Defendant was placed on probation for a period of five years, with the understanding that the conviction would be reduced to a misdemeanor if she was in full compliance with the conditions of probation after three years. The probation conditions included participation in a one-year outpatient mental health treatment program.
Defendant filed a motion for dismissal on March 2, 2017. She argued that child stealing is an alternate felony/misdemeanor under Penal Code section 17, subdivision (b). According to defendant’s motion, her offense became a misdemeanor as a matter of law when the court imposed a probationary sentence.

Appointed counsel for defendant DeShawn Dekkerrio Dean asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

Defendant Cuong Huy Dao appeals from a judgment of conviction entered after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also found that defendant personally inflicted great bodily injury on the victim and that he personally used a dangerous and deadly weapon in the commission the offense (§§ 12022.7, subd. (a), 667, 1192.7). In a bifurcated proceeding, the trial court found that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced defendant to state prison for a total term of 16 years. On appeal, defendant contends: there was insufficient evidence to support his conviction for assault with a deadly weapon; and trial counsel rendered ineffective assistance by failing to request an instruction regarding the antecedent assaults doctrine. The judgment is affirmed.

The trial court found defendant and appellant Manuel Burruel III, is a sexually violent predator (SVP) and is likely to engage in sexually violent predatory behavior if released. (Welf. & Inst. Code, § 6600.) The court ordered defendant be committed to a secure facility.
Defendant raises four issues on appeal. First, defendant contends substantial evidence does not support the finding that he is likely to engage in predatory conduct if released. Second, defendant asserts the testimony of the prosecution’s expert included unreliable hearsay. Third, defendant asserts the trial court erred by allowing the courtroom deputy to decide that defendant would be shackled during the proceedings. Fourth, defendant contends his right of equal protection was violated when he was required to testify as a witness for the People. We affirm the judgment.

Defendant Percy Levon Brown was convicted by jury of second degree murder (Pen. Code, § 187) , vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)), and failure to stop at the scene of an accident resulting in death or serious injury (Veh. Code, § 20001, subd. (b)(2)). With respect to the manslaughter count, the jury also found defendant fled the scene of the crime (id., subd. (c)). After denying defendant’s new trial motion, the trial court sentenced him to serve an aggregate state prison term of 16 years to life.

Oksana Leslie discovered that her Honda minivan was missing from her garage. Her friends canvassed the nearby area and came upon the minivan, which was being driven by defendant and appellant Brandi Colyn Birdzell. An unidentified male was in the passenger’s seat. When Oksana’s friends pulled in front of the minivan to block its path, defendant sped away, running several stop signs. Defendant pulled onto a friend’s property, got out and the male passenger drove away in the minivan. Oksana’s friends followed the minivan, lost it for a few moments, and then found it abandoned on the street with the key in it.

The jury found defendant and appellant Nancy Marie Besenty guilty in count 1 of the first degree murder of Yesenia Quintanilla (Pen. Code, § 187, subd. (a)) and in count 2 of the attempted willful, deliberate, and premeditated murder of Carlos Quintanilla (§§ 664, 187, subd. (a)). As to both counts, the jury also found the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)), and that a principal personally and intentionally discharged a firearm, causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1)).

Defendant Erik Rene Bello appeals from the judgment of conviction entered after a jury found him guilty of assault with a deadly weapon. The jury also found that Bello personally inflicted great bodily injury in the commission of the offense and that he committed the offense for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). (All further statutory references are to the Penal Code.) Bello contends insufficient evidence supported the jury’s true finding as to the gang sentencing enhancement. He also argues, even if sufficient evidence supported that enhancement, the trial court violated section 1170.1, subdivision (g) by failing to stay the three-year term imposed for the personal infliction of great bodily injury sentencing enhancement.

After a jury convicted appellant Ismael Arias of drug-related felony offenses and misdemeanor resisting arrest, his counsel stipulated that he had suffered a prior conviction and had been released on bail or on his own recognizance at the time he committed one of the felonies. He contends these stipulations were invalid because they subjected him to a longer sentence and were not preceded by advisements regarding his constitutional rights as required by Boykin v. Alabama (1969) 395 U.S. 238, 243–244 (Boykin), In re Tahl (1969) 1 Cal.3d 122, 130–133 (Tahl), and In re Yurko (1974) 10 Cal.3d 857, 860 (Yurko).) We agree.