CA Unpub Decisions

A jury found defendant Montrell Woods guilty of second degree murder and of being a felon in possession of a firearm. It also found he personally discharged a firearm causing death. On appeal, he argues the trial court erred by failing to bifurcate the possession of a firearm charge from the murder charge, the court erroneously excluded evidence of the victim’s propensity for violence, the prosecutor committed two acts of misconduct, the court committed multiple instances of instructional error, and cumulative error resulted. Defendant also argues that his case must be remanded to the trial court so that he can make an adequate record for a future youth parole hearing. Finding no merit in defendant’s claims, we affirm.

Defendant Damen Winston was convicted of transporting marijuana and possessing it for sale. He contends the possession for sale conviction must be reversed because, in instructing the jury on this charge, the court did not instruct on his affirmative defense that he possessed the marijuana legally under the Compassionate Use Act of 1996 (CUA) and Medical Marijuana Program Act (MMPA). He argues that the transportation conviction also must be reversed, because the jury instructions omitted the “for sale” element retroactively added to the crime subsequent to his trial. Defendant further contends that the trial court improperly denied portions of his Pitchess motion, and withheld discoverable materials from him. He requests that we independently review the confidential records and trial court’s ruling on his Pitchess motion and correct a clerical error in the minute order documenting his sentence. The Attorney General does not oppose these requests, which we grant.

Appellant Amy Renae Wilson appeals from the denial of her petition for resentencing, filed pursuant to Proposition 47. Appellant contends she was eligible for resentencing on two prior convictions, one for identity theft (Pen. Code, § 530.5, subd. (a)) and one for second degree burglary (§§ 459, 460, subd. (b)). Appellant contends her identity theft conviction qualifies as petty theft under Proposition 47. She contends her second degree commercial burglary conviction is eligible because attempting to cash a fraudulent check constitutes shoplifting. For the reasons set forth below, we affirm in part and reverse in part.

Following a combined suitability hearing under the Three Strikes Reform Act of 2012, enacted by the voters as Proposition 36 (Pen. Code, § 1170.126), and the Safe Neighborhoods and Schools Act, passed by the voters as Proposition 47 (§ 1170.18), the trial court found resentencing Michael Curtis Robertson would pose an unreasonable risk of danger to public safety and denied his petitions for recall of his prison sentence. On appeal Robertson contends the trial court’s finding was not supported by substantial evidence. Robertson also argues the People were required to prove his dangerousness to a jury beyond a reasonable doubt and his right to equal protection of the law was violated by Proposition 47. We affirm the trial court’s orders denying Robertson’s Proposition 36 and Proposition 47 petitions.

In 2013, three separate shootings occurred in Bakersfield, California: (1) a “drive-by” in the parking lot of Roy’s Market on February 6; (2) the homicide of Floyd Beam, Jr. outside Roy’s Market on February 10; and (3) an incident at a family gathering on March 3 about a mile from Roy’s Market at a residence located at 420 Whitlock.

A jury convicted appellant Ariosto Lira Osorio of sexual intercourse with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); count 1) and two counts of lewd or lascivious acts with a child 14 years old or younger (§ 288, subd. (a); counts 2 & 3). The victims were two girls, one of whom was his daughter. He was sentenced to 25 years to life on count 1, plus two consecutive terms of 15 years to life on counts 2 and 3.
On appeal, appellant claims the trial court erred in not instructing the jury in count 1 with the allegedly lesser included offenses of battery and/or statutory rape. He further argues insufficient evidence supports his conviction in count 3. We affirm.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We modify the judgment and affirm as modified.

A jury convicted Tyrus Ford Love of one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1) and one count of assault with a firearm (§ 245, subd. (a)(2); count 2). The jury also found true several allegations as to the two counts. The jury found as to count 1 that Love (1) inflicted great bodily injury (§ 12022.7, subd. (a)); (2) Love personally and intentionally discharged a handgun causing great bodily injury (§ 12022.53, subds. (b)-(d)); and (3) Love committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). With regard to count 2, the jury found (1) Love personally used a handgun (§ 12022.5, subd. (a)); (2) personally inflicted great bodily injury under section 12022.55; and (3) committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court found true two serious/violent felony prior convictions (§ 667, subds. (b)-(i)).

Defendant appeals from his conviction of identity theft, conspiracy to commit identity theft, and second degree commercial burglary. He contends substantial evidence did not support the convictions, the corpus delicti rule (which requires independent evidence of the corpus delicti of the offense in addition to any extrajudicial admissions or inculpatory statements by the defendant) was not satisfied, and the trial court failed to instruct the jury sua sponte on the corpus delicti rule. We conclude the evidence was sufficient and, in light of the nature of defendant’s statements, the corpus delicti rule did not apply and no instruction on it was necessary. We affirm the judgment.

Marc Gitelman appeals from his conviction for three sex crimes, contending the trial court made numerous prejudicial evidentiary errors and the prosecutor committed misconduct. We disagree, and therefore affirm the judgment with a slight modification.

A jury convicted defendant Josue Funez of one count of residential burglary and found true allegations regarding defendant’s prior convictions at a bifurcated proceeding. The trial court sentenced defendant to a total term of 17 years in state prison. We have conducted an independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and conclude that no arguable issues exist. We therefore affirm.

Russell Eugene Dunbar appeals from his criminal conviction on 48 counts of embezzlement, forgery, and falsifying records. The prosecution presented evidence that Dunbar had, over a period of several years, diverted more than $5 million from his employer, Fields Piano, Inc., into his own bank account. The diversion was discovered several years after Dunbar had left his job at Fields Piano.
Dunbar challenges his conviction and sentencing on several grounds. He first claims that he received ineffective assistance of counsel because his lawyer did not request a jury instruction on the claim of right defense. He also contends his prior felony conviction for insurance fraud was improperly allowed as impeachment after he chose to take the stand. Finally, he asserts that he should have received only one sentence for all the embezzlement counts and that the court abused its discretion by imposing a restitution fine of $10,000 without inquiring about his ability to pay.

Defendant Jahmari Selvam Butler was accused of carjacking and leading the police on a high-speed chase when he was seen hours later driving the stolen car. A jury convicted him of carjacking (Pen. Code, § 215, subd. (a)), second degree robbery (§ 211), driving recklessly while evading the police (Veh. Code, § 2800.2, subd. (a), driving in the opposite direction of traffic while evading the police (Veh. Code, § 2800.4), and unlawfully driving or taking a vehicle (§ 10851, subd. (a)). The jury also found a principal was armed during commission of the carjacking and robbery. (§ 12022, subd. (a)(1).) The court found defendant has a prior serious felony conviction for robbery (§§ 667, subd. (a), 1170.12) and served two separate prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate prison term of 27 years.

In this appeal, defendant Tauna May Bayoneta contends the trial court erred in denying her petition to reduce her conviction for transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) from a felony to a misdemeanor under the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). Defendant further contends the trial court erred in failing to reduce her conviction for failure to appear (Pen. Code, § 1320, subd. (b)) from a felony to a misdemeanor. We affirm.