CA Unpub Decisions

Raymond Noriega appeals from the judgment after his jury conviction of carrying a loaded unregistered handgun for the benefit of a criminal street gang. Since the gang enhancement is premised on case-specific hearsay testimony regarding appellant’s gang membership, it must be reversed.

Fernando Niebla, Jr. admitted violating the terms and conditions of the postrelease community supervision imposed on him as a result of his 2010 conviction for transporting a controlled substance. (Former Health & Saf. Code, § 11352, subd. (a).) The trial court revoked and reinstated his community supervision with the condition that he serve 13 days in jail and enroll in a year-long rehabilitation program. (Pen. Code, § 3455, subd. (a).)
Niebla appeals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) and has not raised any specific issues on appeal. Niebla's counsel asks this court to review the record independently for error as required by Wende. We granted Niebla the opportunity to file a supplemental brief on his own behalf. He has not responded. We have independently reviewed the record under Wende and found no reasonably arguable issues for reversal on appeal. W

Appointed counsel for defendant Charles Monteleone has filed an opening brief that sets forth the facts of the case and 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 (Wende).) After reviewing the entire record, we have found two sentencing errors that must be corrected. We will modify the judgment (order of probation) to correct these errors and direct the trial court to prepare an amended order of probation. Finding no other arguable error that would result in a disposition more favorable to defendant, we affirm the judgment as modified.

Salomon Montejano subjected the niece of his girlfriend to routine sexual molestation for seven years, from the time she was five years old until she was 12. He was convicted of a total of 11 counts and received a sentence of 145 years to life. In this appeal, he argues the evidence was insufficient to support five of the counts. He also maintains there were several errors in the jury instructions and a fine and penalty assessments, totaling $1,650, were unauthorized.
The People do not address the fine issue in their brief. We agree with Montejano that the fine in question was inapplicable, but striking that fine brings the correctness of the trial court’s calculation of other fines into question. It will be necessary to remand to allow the trial court to recalculate those other fines. We reject the remainder of Montejano’s arguments.

Defendant Efrain Amed Martinez-Vasquez appeals following conviction of two counts of lewd and lascivious acts on a child under age 14 (Pen. Code, § 288, subd. (a)), one count of oral copulation on a child age 10 or younger (§ 288.7, subd. (b)), and one count of first degree burglary (§ 459) with specific intent to commit an enumerated sex offense (§ 667.61, subd. (a)). The trial court sentenced defendant to 31 years to life.
Defendant contends: (1) the trial court erroneously admitted into evidence as a “ ‘fresh complaint’ ” a statement the victim made to her mother shortly after defendant was discovered in her bedroom wearing only his underwear; (2) the evidence was insufficient as to oral copulation, burglary, and specific intent to commit a sex offense at time of entry; (3) trial counsel was deficient in failing to object to admission of the videotaped interview of the victim by the Multidisciplinary Interview Center (MDIC); and (4) the trial court erred in sentencin

After being told to leave a convenience store in the afternoon, defendant, Semaj Amme Martin, grabbed a 12-pack and a few other packs of beer and left. Later, in the evening of the same day, defendant re-entered the same convenience store with a gun, and robbed the two clerks in the presence of a customer. He was charged, tried, and convicted of two counts of robbery with use of a firearm (Pen. Code, §§ 211, 12022.53, subd. (b)), four counts of assault with a firearm (§§ 245, subd. (a)(2), 12022.5, subd. (a)), and one count of commercial burglary (§ 459), along with an allegation that he had suffered a prior felony conviction for which he had served a prison term, “prison prior” (§ 667.5, subd. (b)), one serious felony prior, “nickel prior” (§ 667, subd. (a)), and one strike prior. (§ 667, subds. (c), (e)(1).) Defendant was sentenced to an aggregate term of 33 years in prison and appealed.

Defendant and appellant Juan Bravo Lopez raises contentions of trial error following his conviction, by jury trial, of first degree murder (Pen. Code, § 187). For the reasons discussed below, the judgment is affirmed in part, reversed in part, and modified.

Defendant Adolph Lee Hardwick appeals from a second-strike sentence imposed after a jury convicted him of abducting Mayra Zevallos at gunpoint, forcing her to drive him around aimlessly, and threatening to kill her. On appeal, defendant contends that the court failed to instruct the jury on the semiautomatic firearm element of assault with a semiautomatic firearm; that there is insufficient evidence of the asportation required for carjacking; that his carjacking conviction is unauthorized because it is a lesser-included offense of kidnap for carjacking; that his conviction for possessing a firearm as an ex-felon should have been stayed under section 654; and that his sentence is cruel and/or unusual punishment.
We conclude the court’s instructional error was not harmless beyond a reasonable doubt and modify count 1 to the lesser-included offense of assault with a firearm. The People concede, and we agree, that carjacking is a lesser-included offense of kidnap for carjacking; we th

A jury convicted defendant Omar Escamilla Guillen of a drive-by, special-circumstance murder, which defendant committed without provocation in an apparent effort to defend his brother, Leonel G., from a perceived gang threat. (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(21); 1192.7, subd. (c)(8); 12022.53, subd. (d).) The court sentenced defendant to life without parole (LWOP) and a consecutive term of 25 years to life.
On appeal, defendant contends: (1) the court erroneously instructed the jury on an initial aggressor’s right to self-defense; and (2) the special circumstance was unconstitutional as applied in light of the prosecutor’s argument that the jury should reach a true finding by default if it convicted defendant of murder. We reject defendant’s contentions and affirm the judgment.

Otis Fitzgerald Ervin purportedly appeals from an order denying his motion to vacate a void judgment for lack of subject matter jurisdiction. We dismiss the appeal.

Defendant and appellant, John Francisco Carrasco, filed a petition for resentencing pursuant to Penal Code sections 1170.18 and 1170.126, which the court granted in part and denied in part. On appeal, defendant contends the court erred in denying his petition for relief pursuant to section 1170.126. We affirm.

After hearing evidence defendant Kevin Bravo held down his girlfriend’s 18-month-old daughter and sprayed her genitals with scalding water for several seconds causing deep second degree burns, a jury convicted him of torture (Pen. Code, § 206; count 1) and child abuse likely to cause great bodily harm (Pen. Code, § 273a, subd. (a); count 2). The jury also found true the special allegation he personally inflicted great bodily harm during the commission of count 2, child abuse. (Pen. Code, § 12022.7, subd. (d).) The trial court sentenced him to seven years to life in prison.

We appointed counsel to represent defendant Brandon James Berch on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record. We provided defendant 30 days to file written argument on his own behalf; no supplemental response has been received.
We have examined the entire record and appointed appellate counsel’s Wende/Anders brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.

Defendant James Richard Banfill has a long criminal history, and has served multiple prison terms for some of those offenses, including prison terms in 2005, 2009, and 2010. Several months before defendant was convicted and sentenced for threatening a witness (Pen. Code, § 140, subd. (a)) and disobeying a domestic relations order (§ 273.6, subd.(a)) in this case, another trial court reduced defendant’s 2010 felony conviction to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act). (§ 1170.18.) While the court below did not impose a prior prison term enhancement under section 667.5, subdivision (b) for the 2010 felony that had been reduced to a misdemeanor, the court did impose two prior prison term enhancements for defendant’s 2005 and 2009 felony offenses when sentencing defendant to six years in state prison.