CA Unpub Decisions

A jury convicted Jason Andrew Gutermuth of attempted second degree robbery. (Pen. Code, §§ 664, subd. (a), 211, 212.5, subd. (c); all further statutory references are to the Penal Code) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The court found he had a prior serious felony conviction (§ 667, subd. (a)(1).)
Gutermuth asserts the court misdirected the jury on the mens rea required for attempted robbery, and his attorney rendered ineffective assistance of counsel by failing to request a pinpoint instruction on the defense of accident or mistake. He does not challenge his conviction for resisting a peace officer. We affirm.

Dustin Robert Gran (defendant) stands convicted, following a jury trial, of first degree murder in which he intentionally killed the victim by means of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15); count 1), conspiracy to commit murder (§ 182, subd. (a)(1); count 2), first degree burglary committed when someone other than an accomplice was in the home (§ 459; count 3), and grand theft of a firearm (§ 487, subd. (d)(2); counts 4-6). The jury further found he was sane at the time of the crimes. The prosecution having elected not to seek the death penalty, defendant was sentenced to a total unstayed term of two years plus life in prison without the possibility of parole, and ordered to pay various fees, fines, and assessments.

Defendant Samael Gomez purports to appeal from the denial of his motion to modify his criminal judgment entered in 2006. The order is not appealable, and the appeal therefore is dismissed.
Defendant was convicted of willful, deliberate, and premeditated attempted murder. Jurors found that he personally used a deadly and dangerous weapon and that he personally inflicted great bodily injury on the victim in circumstances involving domestic violence. Defendant also was convicted of aggravated mayhem with a personal use of a deadly weapon enhancement. Judgment was imposed June 19, 2006.

Defendant Joseph Paul Garlington appeals a judgment entered upon a jury verdict finding him guilty of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and misdemeanor violation of a protective order (Pen. Code, § 273.6, subd. (a)). He contends the trial court improperly admitted evidence of prior convictions involving domestic violence and that his counsel rendered ineffective assistance. We shall affirm the judgment.

A jury convicted defendant Ryan Eric Galliher of attempted lewd conduct on a child under the age of 14 (Pen. Code, §§ 288, subd. (a), 664, subd. (a); count one), contacting a child with the intent to commit a lewd act (§ 288.3, subd. (a); count two), six misdemeanor counts of indecent exposure (§ 314, subd. (1); counts three through seven, nine), and one count of misdemeanor engaging in lewd conduct (§ 647, subd. (a); count eight). He was placed on probation for five years and sentenced to one year in county jail.

Defendant was sentenced to concurrent 32-month prison terms for two offenses involving unlawful possession of a firearm. He argues on appeal that the trial court erred by failing to stay imposition of sentence for one of those offenses under Penal Code section 654. The Attorney General counters that defendant has abandoned his claim under California Rules of Court, rule 4.412(b) because he agreed to a specific prison term and he did not object to the imposition of concurrent sentences in the trial court. We will dismiss this appeal as moot because defendant has fully served his sentence, and resolution of the issue presented will have no practical effect on him.

Appointed counsel for defendant Ricky Clayton Ely-Kirkham, Jr., asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
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While conducting surveillance of an apartment building, Roseville Police Officer Michael Ryland detained defendant after he attempted to leave when officers approached. Defendant was placed in handcuffs when another officer noticed the tip of a knife under defendant’s sweatshirt. A search of defendant revealed a concealed knife with a six-inch fixed blade.

Appellant Robyn Devereaux appeals from an order denying her motion to recall her sentence. Her appellate attorney has asked this court for an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues, and Devereaux has filed a supplemental letter brief.
Devereaux pleaded guilty in January 2012 under a negotiated disposition to one count of attempted extortion (Pen. Code, § 524), and she was placed on probation for three years. She was later found to be in violation of her probation and was sentenced to three years, to be served in the county jail. She filed a notice of appeal, but the appeal was later abandoned. (No. A148316.)

In two separate cases (Fresno County Superior Court case Nos. F15900221 and F15901929), Brandon Lee Collier entered into plea agreements that resulted in two separate convictions for violating Vehicle Code section 10851, subdivision (a). He appeals from the trial court’s denial of his petition to have the conviction in case No. F15900221 reduced to a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. We affirm the order denying his petition.

Defendant Anthony Nicholas Capurro appeals a judgment entered upon his plea of no contest to driving with a blood alcohol level of .08 percent or greater and driving with a suspended license. He contends he is entitled to presentence credits for time spent in a residential treatment program. Because defendant waived those custody credits as a condition of probation, we affirm the judgment.

Defendant Jennifer Burke appeals from a judgment imposing a previously suspended four-year sentence. On appeal, defendant’s counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, stating that no arguable issue exists and requesting that this court independently review the record. We have reviewed the entire record and find no arguable issue. We affirm the judgment.

A jury convicted David Franklin Ayala of lewd acts on a child (Pen. Code, § 288, subd. (a) [counts 1-5]; all statutory citations are to the Penal Code unless otherwise specified), sodomy by force (§ 286, subd. (c)(2) [count 6]), possession of child pornography (§ 311.11, subd. (a) [count 7]), and using a minor to produce obscene matter (§ 311.4, subd. (c) [count 8]). Ayala contends the trial court erred by admitting evidence of his sexual orientation, and by refusing to instruct the jury on attempted sodomy as a lesser included offense of the lewd act offenses charged in counts 3 and 4. As we explain below, these contentions fail. The parties agree the court minutes and abstract of judgment must be amended to accurately reflect Ayala’s sentence. We therefore direct the trial court to correct its minutes and to prepare an amended abstract of judgment. As modified, we affirm the judgment.

Defendant Gary Alton Asberry, Jr., was convicted of first-degree special-circumstance gang murder of Christopher Gonzales, attempted murder of Andrew Gonzales, and being an active member of a criminal street gang; he was sentenced to life without the possibility of parole. The surviving victim testified that Asberry’s older brother and fellow gang member handed Asberry the gun with which Asberry shot the victims. Asberry is mentally retarded and was 18 years old when the crimes were committed in 2012.

There is not much here to discuss. Appellant Dylan Michael Aber entered into a plea agreement whereby he pled guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) in February of 2015. He was placed on probation for three years with typical terms and conditions.
Eight months later he was accused of violating probation. He admitted the violation and his probation was revoked and reinstated; he was ordered to serve 80 days in the county jail. Two months later he was again accused of violating probation. Again he admitted the violation and was incarcerated as a result. Five months later the same thing happened, with the same result. Two months after that, it happened again. This time the court revoked and terminated probation and he was sentenced to prison. He appealed.