CA Unpub Decisions

Defendant Stephen Phillip Collins appeals from an order denying his Penal Code section 17, subdivision (b) motion to reduce his felony convictions to misdemeanors. As set forth below, we find no error in the denial of the section 17(b) motion, and we affirm.

Defendant Gustavo Lua challenges the superior court’s denial of his Penal Code section 1170.18 petition. The superior court ruled that he was ineligible for resentencing of his conviction for possession of stolen property (§ 496) because he had suffered a “Three Strikes” conviction for which he was serving a life sentence. We recently rejected the superior court’s rationale in People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez). Consequently, we reverse the superior court’s order and remand for the court to reconsider defendant’s petition.

An information, filed on August 1, 2013, charged defendant Mark Alexander Flores with one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). On May 28, 2014, defendant pleaded no contest to that charge.
At the sentencing hearing on November 21, 2014, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years. The trial court imposed various terms and conditions of probation.

D.S., Sr., (father), in propria persona, filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) and challenges the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)) terminating his reunification services and setting a section 366.26 hearing as to his now one-year-old son, D.S., Jr., (D.S.). Father contends the juvenile court applied the wrong legal standard in finding there was not a substantial probability D.S. could be returned to his custody. We deny the petition.

Minor Cheyenne B. contends on appeal (1) the juvenile court erred in setting a maximum term of confinement and (2) the dispositional order requires correction. The People concede and we agree. We modify the dispositional minute order and affirm as modified.

After defendant David Isaac Jimenez pled no contest to unlawfully driving or taking a vehicle with a prior (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5), the trial court sentenced him to a three-year split term—two years to be served in jail and one year on mandatory supervision with various conditions. On appeal, he contends the gang probation conditions are unconstitutionally overbroad because they lack an express knowledge element. We modify the conditions and affirm the judgment as modified.

Defendant Amber Alese Harrington contends on appeal that the trial court erred in refusing to designate her felony conviction for second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) as a misdemeanor pursuant to Proposition 47 (§ 1170.18). Since defendant filed her appeal, this issue has been resolved in her favor by People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). We reverse and remand.

Appellant Isaac Jonathan Sanders stands convicted of multiple offenses, including two counts of carjacking, one count of assault with a semiautomatic weapon, and one count of evading a peace officer. He contends his convictions must be reversed because the prosecutor in rebuttal argument made one misstatement of the evidence and defense counsel failed to object, thus rendering ineffective assistance of counsel. We affirm.

On July 22, 2015, an information charged defendant and appellant Alan Ray Vizcarra with transportation of methamphetamine for the purpose of sale under Health and Safety Code section 11379, subdivision (a) (count 1); possession of methamphetamine for purpose of sale under section 11378 (count 2); and being under the influence of a controlled substance, a misdemeanor, under section 11550, subdivision (a) (count 3). As to counts 1 and 2, the information alleged that defendant possessed and transported for sale 28.5 grams or more of methamphetamine, or 57 grams or more of a substance containing methamphetamine under section 1203.073.

Defendant Aaron Gene Davis broke into the victim’s house in the middle of the night through a kitchen window. The victim and his fiancée were asleep when defendant made his entry and awoke to find him standing in their bedroom doorway. Retrieving a handgun from the right side of the bed, the victim fired a round as defendant fled down the hallway towards the kitchen. He then followed in pursuit and fired another round in the kitchen before defendant escaped through the same window.

In a case dating back 10 years, plaintiff MacKay & Somps Civil Engineers, Inc. (MacKay), sought to recover its contractual fees for civil engineering and other services provided for a real estate development project that an entwined set of defendant entities had undertaken; in addition to these defendant entities, MacKay proceeded against individual defendant Sidney B. Dunmore as their alter ego. In its statement of decision, the trial court found that defendant Dunmore was personally liable for the defaults of his various entities on their obligations to MacKay, as well as for quantum meruit and deceit.

Defendants Juan Carlos Fuentes and Justin Matthew Gonzalez (collectively, defendants) and two other codefendants, each a Norteño gang member, attacked the victim outside of a convenience store in Woodland, took his bicycle and various items he purchased at the store, and then fled from the scene, Fuentes on the bicycle. Apprehended a short time later, the four were tried together for robbery (Pen. Code, § 211) , assault by means likely to produce great bodily injury (§ 245), and gang participation (§ 186.22, subd. (a)), with gang enhancements attached to the first two counts (§ 186.22, subd. (b)); Fuentes was additionally charged with resisting a peace officer (§ 148).

Defendant Louis Estrada Vasquez appeals from multiple assault convictions and the jury’s finding two of his assaults were for the benefit of a street gang. He contends (1) the gang expert’s testimony was based on testimonial hearsay and was insufficient to support the gang enhancement; (2) the trial court erred by denying his motion to bifurcate trial of the gang enhancement; (3) the court erred by admitting evidence of an unduly suggestive field showup; (4) the court erred by finding the prosecution used due diligence attempting to locate a missing witness; (5) ineffective assistance of counsel; and (6) cumulative error. We conclude insufficient evidence supports the gang enhancements, and we reverse and remand for resentencing. In all other respects, we affirm.

Nancy R. (Mother) appeals from an order granting her and Juan V. (Father) joint legal custody of their child, 18-month-old Jamie V. The trial court granted Mother a one-year domestic violence restraining order against Father. But the trial court granted the parents joint legal custody because it found Father rebutted the presumption in Family Code section 3044, subdivision (a) that an award of legal custody to a parent who has committed domestic violence is detrimental to a child’s best interest.