CA Unpub Decisions

A jury convicted defendants James Patterson and Michael Cain of multiple counts of simple kidnapping and robbery (Pen. Code, §§ 207, 211 ). Together they challenge the sufficiency of the evidence to support the asportation element of the kidnapping convictions. Cain alone asserts error under section 654 in the imposition of consecutive subordinate terms for the robberies. We affirm.

Appellant Jesus Melendez pled no contest to one count of second degree burglary after his motion to suppress was denied. He contends the trial court erred in denying his suppression motion. We affirm.

Following two jury trials, Ismael Marquez was found guilty of first-degree murder, battery upon a spouse, and criminal threats. He contends the prosecutors in both trials committed Batson/Wheeler error. He also raises numerous challenges to the trial court’s rulings in the second trial, and contends the evidence was insufficient to show the murder was gang related. For the reasons set forth below, we find no error and accordingly, affirm.

Appellant Fabian Mansanalez stands convicted of receiving a stolen vehicle, a violation of Penal Code section 496d, subdivision (a), and being a felon in possession of a firearm, in violation of section 29800, subdivision (a)(1). He also admitted two prior prison term enhancements pursuant to section 667.5, subdivision (b). Mansanalez contends his conviction for violating section 496d should be reduced to a misdemeanor, pursuant to section 1170.18. We disagree and affirm.

Appointed counsel for defendant Trevell Labrie Delaney Jones asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A jury convicted Dougvone Jackson (defendant) of conspiracy to commit robbery (Pen. Code, §§ 182, subd. (a)(1), 212.5, subd. (c) (count 1)) and possession of a firearm by a felon (§ 29800, subd. (a)(1) (count 2)) and found two enhancements to be true (principal armed with a .22 revolver (count 1); prior serious felony conviction (counts 1 and 2)). On appeal, defendant contends the trial court abused its discretion in refusing to remove and replace a juror and denying his Romero motion. He also challenges the sufficiency of the evidence to justify the imposition of a concurrent sentence for count 2. (§ 654.) We affirm.

A prosecutor’s reasons for exercising a peremptory challenge to excuse a prospective juror must be race-neutral. In this case, the prosecutor asked the trial court to excuse a prospective juror because the prosecutor’s notes indicated the prospective juror could not be fair and impartial and because the prospective juror had previously served on a civil jury. The trial court accepted both reasons and denied the defendant’s motion to dismiss the panel of prospective jurors under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler motion). Deferring to the trial court’s evaluation of the prosecutor’s second explanation, we conclude substantial evidence supports the court’s ruling. We also conclude, after independently reviewing the sealed record of an in camera hearing under Pitchess v. Superior Court (1974) 11 Cal.3d 531, the trial court did not improperly withhold any discoverable information. Therefore, we affirm.

Skyy DeAnthony Fisher and his friend, Steven S., celebrated spring break in San Diego. They shared a hotel room with separate beds and went bar-hopping. Returning to the room, Steven eventually fell asleep in his own bed. He awakened to find Fisher performing oral sex on him. Laboratory analysis showed "a large quantity" of Fisher's DNA on Steven's penis.
After a four-day trial, the jury returned a guilty verdict in 43 minutes, finding Fisher orally copulated an unconscious person, violating Penal Code section 288a, subdivision (f).

One member of a gang’s clique gunned down another member of the clique, and was aided by two others. A few days later, they called the victim’s friend to take credit for the killing and to threaten him. Then two of them committed two armed robberies. All three were convicted of murder, two were convicted of robbery, and one was convicted of making criminal threats. All of them appeal, challenging the sufficiency of the evidence as to several counts, arguing that the trial court erred in instructing the jury and admitting certain items of evidence, asserting that the prosecutor engaged in misconduct, and contending that the trial court made several sentencing errors.

A jury convicted appellant Jesus Delacruz of seven counts of committing a lewd act upon a child (Pen. Code § 288, subd. (a)) involving alleged offenses against his two step daughters, J. and M. The jury also found true the special allegations that, as to counts 1, 2, 3, 4, and 7, Delacruz had substantial sexual conduct with a child under the age of fourteen. (§ 1203.006, subd. (a)(8).) The jury also found true the special allegations appended to all counts; that he committed the crimes against more than one victim. (§§ 1203.066, subd. (a)(7), 667.61, subds. (b)(c) & (e).) Delacruz was sentenced to an indeterminate term of fifteen years to life on each count and the court ordered the sentences to run concurrently.

Vinh Q. Chung pleaded guilty to sodomy by acting in concert with force (Pen. Code, § 286, subd. (d)(1)), and to oral copulation by acting in concert with force (§ 288a, subd. (d)(1)). The trial court sentenced Chung to the agreed-upon term of 18 years in prison.
Chung appeals. He contends he was denied his constitutional right to a Vietnamese interpreter at the sentencing hearing. We dismiss Chung’s appeal because it can only be construed as a challenge to the validity of his plea, which required a certificate of probable cause. (§ 1237.5.)

The trial court denied Carolina Barrientos’s Proposition 47 petition because the court concluded a defendant convicted of theft of access card or account information is not eligible for resentencing under Proposition 47. In light of the Supreme Court’s recent holding to the contrary in People v. Romanowski (2017) 2 Cal.5th 903, we reverse and remand with directions.

On April 8, 2016, this court affirmed the convictions of defendant and appellant Daniel Avila on multiple counts, but remanded with directions to resentence defendant on several counts and special allegations, as well as for preparation of a new abstract of judgment. (People v. Avila (Apr. 8, 2016, B257654) [nonpub. opn.].) The trial court held a sentencing hearing in compliance with our opinion on September 23, 2016. The hearing was held in defendant’s absence after the court concluded defendant had refused to cooperate in transportation from state prison to court. Defendant filed a timely notice of appeal.

In June 2015 Richard Dale Austin pleaded guilty to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) arising out of a domestic violence incident. He admitted a strike prior conviction in exchange for dismissal of the remaining charges. Austin's change of plea form indicated that he faced a maximum of eight years in prison, which is double the four-year upper term based on his strike prior conviction. (§ 667, subds. (e)(1).) Before he could be sentenced Austin tested positive for methamphetamine, which the prosecutor described as a Cruz violation.