CA Unpub Decisions

Defendant Robert Ignacio Marcos was looking for his wife; he believed that victim Nicanor Hernandez Duran knew where she was. Defendant therefore made Duran get in his car and guide him to where his wife was. Meanwhile, defendant punched Duran repeatedly; defendant also took his identification cards and seven dollars in cash. When Duran could not find the location, defendant took Duran back to his own home and tied him up overnight before making him try again in the morning.

Defendant Diolinda Machado was charged with multiple counts of making false financial statements (Pen. Code, § 532a, subd. (1)), inter alia. On June 3, 2010, pursuant to a plea agreement, she pled no contest to one of these counts. The remaining charges were dismissed with a Harvey waiver. The trial court placed defendant on formal probation for three years and ordered her to pay victim restitution in an amount to be determined. Later, with defendant’s consent, the court extended the probationary period to June 3, 2014.

David Wayne Kappler appeals a trial court order denying his application to resentence him on a one-year prison term enhancement related to a prior felony conviction. (Pen. Code, §§ 667.5, subd. (b); 1170.18.) He contends that, because his prior felony conviction was reduced to a misdemeanor under section 1170.18, the conviction can no longer support the enhancement. We disagree and therefore affirm.

Convicted by jury of pandering, defendant Gerald Johnson contends the trial court should have instructed sua sponte on the lesser included offense of attempted pandering. We conclude he was not entitled to such instruction because there was no substantial evidence from which a reasonable jury could have concluded he committed only the lesser offense. Therefore, we affirm the judgment. However, we remand for a correction of the record to show the disposition of certain other counts.

Defendant and appellant Javier Hernandez was convicted of four offenses related to his harassment and stalking of his former girlfriend, including one misdemeanor count of violating a protective order, in violation of Penal Code section 166, subdivision (c)(1). With respect to that count, on appeal he argues the trial court erred in admitting an uncertified copy of the underlying protective order, although the original order was in the court's file in the criminal proceeding. We find no error and affirm the judgment of conviction in its entirety.

In 2007, defendant, Giovanni Tirey Gladden, was convicted of felony drunk driving causing bodily injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol level of 0.08 percent or more, and hit and run with injury. He was sentenced under the Three Strikes law to concurrent terms of 25 years to life, with concurrent determinate terms for felony hit and run (Veh. Code, § 20001, subd. (a)) and misdemeanor driving on a suspended license (Veh. Code, § 14601, subd. (a)). Upon passage of Proposition 36, defendant petitioned to have his Three Strikes sentence recalled, pursuant to Penal Code section 1170.126. That petition was denied upon the court’s finding that because of his alcoholism, defendant posed an unreasonable risk of danger to public safety, and defendant appealed.

This case arises from the gang-related murder of Troy Morris on February 16, 2006. Following a prolonged investigation, defendants Vernon Lenzelle Evans and Nessane Tereso Cacho were jointly charged with one count of murder (Pen. Code, § 187, subd. (a)) including several firearm and gang enhancement allegations (§§ 12022.53, subds. (b)-(e), 186.22, subd. (b)(1)(C)). Defendants’ first and second trials both ended in mistrials as a result of hung juries. On November 6, 2014, following their third jury trial, defendants were convicted of first degree murder with true findings as to the firearm and gang enhancement allegations. The trial court sentenced each defendant to a total term of 50 years to life in state prison

We appointed counsel to represent Christian Esteban Espinoza on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. We gave Espinoza 30 days to file written argument on his own behalf. That time has passed, and Espinoza has not filed any written argument.

Defendant Joshua Cobb challenges his judgment of conviction for robbery on two grounds. First, Cobb contends that he cannot be convicted of a robbery because the facts demonstrate that he did not use force or fear in taking items from a grocery store and, under the common law, the offense of robbery requires the application of force or fear at the time the pilfered items are taken. Cobb asserts that long-held California case authority has improperly expanded the meaning of robbery beyond the Legislature's intent, and asks this court to reexamine the issue. Second, Cobb contends that there is insufficient evidence to support the jury's finding that he committed a robbery.
We conclude that both of Cobb's contentions are without merit. We therefore affirm the judgment.

A jury convicted defendants Jorge Camarena and Jose Ibanez Matamoros of kidnapping for ransom. (Pen. Code, § 209, subd. (a).) The jury found true allegations that Camarena personally used a handgun and, as to Matamoros, a principal was armed with a handgun. (§§ 12022, subd. (a)(1); 12022.53, subd. (b).) Camarena was sentenced to life with the possibility of parole plus 10 years. Matamoros was sentenced to life with the possibility of parole plus one year.

In 2011, pursuant to a negotiated plea agreement, defendant Shane Christopher Angrisani pleaded guilty to a violation of former Health and Safety Code section 11352 for transporting a controlled substance, namely heroin, with a stipulation that the offense involved transportation for personal use. He was initially placed on Proposition 36 probation, and later he was placed on three years of formal probation. In 2014, the Legislature decriminalized transportation of heroin for personal use by amending Health and Safety Code section 11352 to define “transports” to mean “transport for sale.” (Health & Saf. Code, § 11352, subd. (c); Stats. 2013, ch. 504, § 1, p. 4151.) In 2015, after many violations of probation, defendant was sentenced to a so-called split sentence pursuant to section 1170, subdivision (h)(5)(B), consisting of a three-year term with execution of the concluding 12-month portion of the term suspended and deemed a period of mandatory supervision.

A jury convicted defendant and appellant, Joel Alatorre, of victim intimidation by force or threats. (Pen. Code, § 136.1, subd. (c)(1); count 4.) The jury acquitted defendant on all the remaining charges. The court found true allegations defendant had suffered two prior prison terms (§ 667.5, subd. (b)), had suffered one prior serious felony (§ 667, subd. (a)), and had suffered two prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).

In this appeal, we consider whether the trial court erred in granting a petition for writ of administrative mandate ordering the Department of Motor Vehicles (the Department) to rescind an order suspending the driver's license of a person arrested for driving under the influence (Veh. Code, § 23152, subd. (a)) and awarding attorney fees and costs to the person. We reverse the trial court's order granting the writ petition and awarding attorney fees and costs and remand the matter to the trial court with directions to deny the petition in its entirety.

Lillian M. Lelito challenges an order denying her request for a permanent restraining order against her neighbor James Mauritz. She contends the trial court violated her constitutional rights to petition and to a fair trial by failing to permit her to present evidence or argument at the hearing. However, Lelito failed to provide an adequate record on appeal. Because her failure to do so precludes appellate review, we affirm the order. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 ["It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial court's determination"].)