CA Unpub Decisions

Appellant Juan Carlos Vasquez appeals from judgments entered following negotiated plea bargains in two cases. He contends the trial court committed error by imposing sentences that varied from the original terms of the plea bargains. We find no error and affirm.

Ernesto Vargas appeals from a judgment after a jury convicted him of two counts of grand theft, second degree commercial burglary, and forgery. Vargas argues the trial court erred by admitting photographic evidence and he should have been convicted of only one count of grand theft. Neither of his contentions have merit, and we affirm the judgment.

Based on two incidents, a jury convicted Joseph Taylor of felony assault with intent to commit forcible sodomy or forcible oral copulation (Pen. Code, § 220, subd. (a)(1)), felony false imprisonment (§ 236), misdemeanor false imprisonment (§ 236), and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The jury could not reach a verdict on count 4, a second felony count of assault with intent to commit forcible sodomy or forcible oral copulation (§ 220, subd. (a)(1)), and the court declared a mistrial as to count 4. The court sentenced Taylor to 17 years in state prison and one year in county jail to run consecutive to his state prison sentence.

A jury convicted Donald Simpson of first degree felony murder, burglary, several counts of robbery, committing a lewd act on a child and being a felon in possession of a firearm and ammunition. The jury also found true multiple firearm and gang enhancement allegations and a special circumstance allegation the murder occurred during the commission of a robbery. On appeal Simpson contends insufficient evidence supported the jury’s gang enhancement findings, and the court erred in imposing a parole revocation fine. We affirm the convictions but remand for resentencing in light of multiple sentencing errors.

After a joint trial before separate juries, the jury found Juan Carlos Herrera-Romero guilty of conspiracy to commit forcible rape (count 1; Pen. Code, § 182, subd. (a)(1) ), forcible rape while acting in concert (count 2; § 264.1), forcible rape (count 3; § 261, subd. (a)(2)), and forcible oral copulation while acting in concert (count 4; § 288a, subd. (d)). The jury also found that he personally used a knife in the commission of counts 2, 3 and 4. (§ 12022.3, subd. (a).)

Appellant/defendant Keith Edward Mytton was convicted of multiple felony offenses based on the sexual molestation of his daughter (C.M.), and the sexual relationship he had with a minor (S.H.). He was sentenced to 15 years to life, plus 14 years.
On appeal, defendant contends the court erroneously admitted propensity evidence pursuant to Evidence Code section 1108, and the jury was improperly instructed on this evidence. Defendant concedes his attorney did not object on either point and raises alternative claims of ineffective assistance. We affirm.

Rashad McNeely pleaded guilty to burglary (Pen. Code, § 459) and admitted allegations that the dwelling was inhabited (§ 460) and another person was present in it during the burglary (§ 667.5, subd. (c)(21)). The trial court sentenced McNeely to six years in state prison under his plea agreement. It also ordered McNeely to register as a sex offender under section 290.006.
McNeely's sole contention on appeal is that the court abused its discretion in ordering registration because his offense was not a result of sexual compulsion or for the purpose of sexual gratification, and the court did not consider all the relevant information in concluding registration was appropriate. We conclude the record contains sufficient evidence to support the trial court's reasons for requiring registration. Accordingly, we affirm the judgment.

Defendant John Anthony Martone appeals from a judgment sentencing him to six years in state prison after a jury found him guilty on two counts of first degree burglary. (Pen. Code, § 459.) He contends the trial court erred in denying his motion to suppress pretrial identifications that he asserts were the result of impermissibly suggestive identification procedures. He also contends the trial court erred in denying his section 1118.1 motion on the ground that substantial evidence did not support the charges against him. We conclude that the identification procedures used were not impermissibly suggestive under the circumstances, and that there was sufficient evidence to support an inference that defendant intended to commit larceny when he entered the victims’ homes. Accordingly, we affirm the judgment.

Darrell Lopez appeals a judgment committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO) (Pen. Code, § 2962) following his conviction of one count of assault by means likely to cause great bodily injury (former § 245, subd. (a)(1), now § 245, subd. (a)(4)) and two counts of resisting an executive officer (§ 69). We conclude that substantial evidence supports the finding that appellant’s severe mental disorder was a cause or an aggravating factor in the commission of his commitment offenses. (§ 2962, subd. (d)(1).) We affirm.

Defendant and appellant Andre Johnson, Jr. raises a claim of sentencing error following his conviction of selling methamphetamine and possessing methamphetamine for sale, with prior drug offense, prior prison term, and prior serious felony conviction enhancements (Health & Saf. Code, §§ 11359, 11358, 11370.2; Pen. Code, §§ 667.5, 667, subds. (b)-(i)).
For the reasons discussed below, the judgment is affirmed; however, the court should address an apparent error in the abstract of judgment.

Appellant/defendant Redfan Abdullah Hussain, a taxi driver, was charged and convicted of count I, battery with serious bodily injury on his dispatcher (Pen. Code, § 243, subd. (d)), and count II, assault with a deadly weapon, a vehicle, after a fare dispute with the victim’s uncle (Pen. Code, § 245, subd. (a)(1)). He was sentenced to four years in prison.
On appeal, defendant argues the court erroneously introduced evidence of a prior and unrelated incident, where he argued with his brother and then drove his car at him, as relevant to his intent and absence of mistake for count II, pursuant to Evidence Code section 1101, subdivision (b). Defendant further argues the court should have admitted evidence about his family’s alleged negotiations with the taxi dispatcher for a financial settlement. We affirm.

Defendant Paul Daniel Hurtado appeals after the trial court denied his Proposition 47 petition for resentencing (Pen. Code, § 1170.18, subd. (a)) as to four forgery convictions (§ 470, subd. (d)) he suffered in 2003. The trial court found that defendant was disqualified from Proposition 47 relief because he has a prior conviction of first degree residential burglary for which he received an indeterminate life sentence under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court relied on section 1170.18, subdivision (i), which precludes resentencing for a person with one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv). The specified disqualifying offenses include “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv)(VIII).)

On February 24, 2015, a complaint charged appellant Leslie James Gaines, Jr., with one count of possession of a sharpened instrument in prison, a violation of Penal Code section 4502, subdivision (a) after an inmate manufactured weapon was found on his person during a clothed body search. The complaint further alleged appellant had suffered three prior strikes: two section 288.5 convictions and one section 459 conviction.
On June 4, 2015, appellant waived his right to a preliminary hearing and entered a plea of no contest to count 1 and admitted one strike allegation. The parties reached a plea agreement pursuant to People v. West (1970) 3 Cal.3d 595. The parties stipulated to the aggravated term of four years doubled to a term of eight years and the People agreed to dismiss the remaining allegations.

After a jury convicted defendant Juan Diaz of unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), the trial court placed defendant on probation for three years and ordered him to pay victim restitution of $4,925.82.
On appeal, defendant raises three instructional errors and contends his trial counsel was ineffective for failing to object to the trial court’s calculation of the restitution order. For reasons that we shall explain, we find no merit to defendant’s claims of instructional error, but we will reverse the order of probation and remand the matter to the trial court for a recalculation of victim restitution.