CA Unpub Decisions

Javier Aguilar appeals from a judgment after a jury convicted him of numerous sexual offenses against three young family members. Aguilar contends the trial court erred by excluding evidence that one of the victims accused her stepfather of offering her money in return for sexual favors. He also argues there is a mistake in the abstract of judgment. None of his contentions have merit, and we affirm the judgment.

Appellant Shalabh Rastogi strangled his wife several weeks after finding out she was having an affair with another man. At trial, he claimed he acted in the heat of passion brought on by his wife’s deceitful and adulterous behavior, but the jury found him guilty of first degree premeditated murder. He now contends: 1) There is insufficient evidence to support that finding; 2) his statements to the police were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); 3) the trial court erred in allowing expert testimony on how long it takes a person to lose consciousness and die from strangulation; 4) the exclusion of certain evidence about the victim infringed his right to a fair trial; and 5) cumulative error compels reversal. Finding no basis to reverse, we affirm the judgment.

A jury convicted Leobardo Valladares of premediated and deliberate first degree murder (Pen. Code, § 187, subd. (a); all statutory citations are to the Penal Code), and found he personally discharged a firearm causing death (§ 12022.53, subd. (d)). Valladares challenges the sufficiency of the evidence to support his first degree murder conviction. He also contends the trial court erred by instructing the jury with CALCRIM Nos. 3472 and 3474, erred by failing to provide a unanimity instruction, erred by refusing to allow the jury to test fire the firearm, and the cumulative effect of the errors rendered his trial unfair. We conclude these contentions lack merit and therefore affirm the judgment.

Robert Wayne Perrone appeals from the trial court’s denial of his petition to recall under Proposition 36 his Three Strikes 25-years-to-life sentence imposed in 1997 and to resentence him to time served. Perrone argues the unambiguous statutory definition of “unreasonable risk of danger to public safety” as “used throughout this code” (Pen. Code, § 1170.18, subd. (c); all further statutory references are to this code) limited the trial court’s discretion to deny recall and resentencing unless he posed a risk of committing certain enumerated serious or violent felonies (see ibid.), colloquially known as “super strike” offenses. He contends that applying a broader standard for the risk of dangerousness, i.e., one in which the court could find Perrone posed an unreasonable risk of danger even if it was unlikely he posed the precise danger of committing a super strike offense, violates equal protection principles and the electorate’s command at the ballot box. Specifi

A surety on a bail bond appeals from an order denying its motion to vacate forfeiture of bail and from a summary judgment on forfeiture of bail bond. The surety contends the summary judgment should be reversed because Penal Code section 1306, subdivision (a) allows a summary judgment to be entered only after the statutory exoneration period has elapsed and here the trial court entered the summary judgment a day too early. The surety also contends that exoneration of the bail bond is required by section 1306, subdivision (c) and cites this court’s decision in People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991 (U.S. Fire) as support.

Defendant Adalberto Macias Gomez was convicted of multiple counts of child molestation against A.C. and given both an indeterminate and a lengthy determinate prison sentence. On appeal, he contends his confession to investigators was improperly admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) because although he was told of his rights to remain silent and to counsel, he was not expressly advised of his right to have counsel present before and during interrogation. Defendant further argues his confession was involuntary because the detectives who questioned him overcame his will in their interrogation methods. Defendant contends the trial court improperly excluded his cross-examination of the victim’s mother, Claudia L., about the property she was acquiring from him as a result of his arrest. Defendant argues this line of questioning was necessary to establish Claudia’s improper motive in testifying against him.

On December 19, 1997, the People filed a felony complaint alleging that on December 17, 1997, defendant received stolen property (Pen. Code, former § 496), a 1990 Pontiac, dealer license number 31056A.
On January 5, 1998, defendant pled guilty to the single count of receiving stolen property. The court sentenced defendant to 30 days’ time served and placed him on probation for 36 months.
On April 9, 1998, defendant admitted to violating his probation and the court sentenced him to two years in prison, to run concurrent with the sentence in another case.
On November 8, 2016, the public defender filed a Superior Court of Riverside County Forms, form RI-CR039, petition for resentencing—application for reduction to misdemeanor, pursuant to section 1170.18 on defendant’s behalf. On the form, the box was checked stating: “Defendant believes the value of the check or property does not exceed $950.”

In 2015, a jury convicted defendant Alfred Woods of first degree murder and personal use of a firearm, offenses he committed in 1991. (Pen. Code, §§ 187, subd. (a); 1203.06, subd. (a)(1); and 12022.5.) The trial court sentenced defendant to a 25-year-to-life indeterminate term for murder and a consecutive five-year determinate term for the firearm enhancement. On appeal, defendant makes one claim, that the court erred when it denied his Batson/Wheeler motion. We have reviewed defendant’s contentions in light of the recent California Supreme Court case of People v. Gutierrez (2017) 2 Cal.5th 1150 (Gutierrez). We hold the trial court did not abuse its discretion and affirm the judgment.

In April 2013, Charles Michael Roe entered a guilty plea to one count of commercial burglary (Pen. Code, § 459). The remaining allegations were dismissed. Roe was sentenced to a midterm of two years in prison. The sentence was ordered to run consecutively to a prison term in another case, for a total term of seven years eight months.
In 2015, Roe filed a petition under Proposition 47 (§ 1170.18) to recall the sentence for commercial burglary and resentence it as a misdemeanor (§ 459.5). Initially the prosecution agreed the offense qualified for Proposition 47 relief. The petition was granted and the matter set for sentencing.
In the interim, the prosecution discovered Roe had previously been convicted of vehicular manslaughter. (§ 192.) Based on the new information, the court granted the prosecution's request to reconsider the petition and requested briefing.

Dion E. Din pleaded guilty to two counts of committing a lewd act against a minor in violation of Penal Code section 288, subdivision (a). The superior court sentenced him to the middle term of six years in prison for the first count and added a consecutive term of two years—one-third of the middle term—for the second count, for an aggregate term of eight years in prison. On appeal, Din contends the court abused its discretion in issuing the sentence because it incorrectly concluded the following two aggravating factors applied: (1) Din took advantage of a position of trust in committing the crimes and (2) Din was not remorseful for his actions. The People assert Din forfeited these arguments by failing to object to the court's reliance on these factors at the sentencing hearing. We conclude Din did not forfeit these arguments, but that the superior court did not abuse its discretion in sentencing Din. We therefore affirm the judgment.

Laura Holmes (Laura) appeals an order denying her motion to vacate under Code of Civil Procedure section 473, subdivision (b). The underlying order surcharged Laura for personal legal fees she improperly paid from the estate of her father, Alden V. Holmes, Sr. (Alden Sr.), while she was acting as his agent pursuant to a limited springing power of attorney. Alden Sr. has since died. Laura contends the probate court erred under section 473, subdivision (b) because she established excusable neglect, i.e., a debilitating illness, for her failure to appear at the surcharge hearing that resulted in the adverse order against her. We conclude the court did not abuse its discretion by denying the motion to vacate and therefore affirm.

A jury convicted Skyler Ryan Johnson of one count of robbery (Pen. Code, § 211). Johnson admitted a prison prior (§ 667.5, subd. (b)) and a serious/violent felony prior conviction (§ 667, subds. (b)-(i)).
The trial court struck the prison prior and sentenced Johnson to the middle term of three years doubled because of the serious/violent felony prior conviction.
Johnson appeals contending the trial court erred in failing to rewrite his proposed jury instruction on use of force to include instructions on a theory that he had abandoned the stolen property before he used force. We will conclude there was no instructional error. Johnson does not contend the trial court had a duty to instruct on abandonment without request, the court had no duty to totally rewrite a proposed defense instruction, and there is no substantial evidence to support an instruction that Johnson abandoned the property before he used force.

A petition was filed in the juvenile court alleging 17-year-old David H. (1) committed petty theft, (2) possessed marking tools with the intent to commit vandalism or graffiti, and (3) possessed drug/tobacco paraphernalia. (Pen. Code, §§ 484, 594.2, subd. (a), 308, subd. (b).) At the close of the prosecution's case, the court (Judge Ronald Johnson) denied a defense motion to dismiss the charges. (Welf. & Inst. Code, § 701.1 (§ 701.1).) At the end of the adjudication hearing, Judge Johnson made true findings on each of the counts. At the disposition hearing, Judge Robert Trentacosta declared David a ward and placed him on probation at home under the Probation Department's supervision.

Defendant and appellant Tyrone Yancy was charged by first amended information with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The amended information also alleged that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); that defendant had two prior strikes (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)); and that he had four prison priors (§ 667.5, subd. (b)).
A jury found defendant guilty of the charged offense and made a true finding on the great bodily injury enhancement. In a bifurcated proceeding, defendant admitted the truth of the two prior strikes and the four prison priors. The court sentenced defendant to 25 years to life on the charged offense, plus consecutive sentences of three years for the great bodily injury enhancement and four years for the prior prison convictions, for a total term of 32 years to life.