CA Unpub Decisions

Appointed counsel for defendant Pedro Lopez, Jr., has filed an opening brief that sets forth the facts of the case and asks 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 affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A jury found defendant Emanuel Lee Looney guilty of first and second degree robbery, unlawful driving and taking of a vehicle, and fleeing a pursuing patrol vehicle. The jury also found defendant’s prior conviction and serious felony allegations to be true. On appeal, defendant contends that: (1) the trial court’s denial of the motion to sever was error and resulted in prejudice; (2) there was insufficient evidence to support a conviction for robbery of Pardeep Kumar; and (3) he was deprived of his rights to due process and a jury trial when the jury was instructed that it had already been determined he was the person who had the alleged prior convictions. Finding no merit in these contentions, we affirm.

After his motion to suppress was denied, defendant Michael Theodore Lewis entered a negotiated plea of no contest to being a convicted felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)—count one) in exchange for a grant of probation and dismissal of the remaining count (possession of a short-barreled shotgun). Granted probation, defendant appeals. He challenges the denial of his suppression motion. We will affirm the judgment.

In 1998, the Los Angeles County District Attorney charged defendant Earvin Jones (defendant) with (1) attempted willful, deliberate, premeditated murder (Pen. Code, §§ 664, 187(a)), (2) conspiracy (§ 182(a)(1)), and (3) possession of a firearm after sustaining two prior convictions (§ 12021(a)(1)). The charges were predicated on evidence that defendant was one of two men who drove up to a house, got out of a car, and started shooting at a man who had been standing in front of the house. During the car chase that followed the shooting, police officers observed three guns being tossed from the car.
The charges were tried to a jury, which found defendant guilty of the felon in possession of a firearm charge but did not reach a verdict on the attempted murder or the conspiracy charges (those were later dismissed). Defendant waived his right to have the jury determine the truth of associated allegations that he had sustained two prior felony convictions within the meaning of the

Brandon Houston appeals from an order denying his motion to modify the terms of his probation so that he could use medical marijuana. We apply the test set out in People v. Leal (2012) 210 Cal.App.4th 829 and conclude the refusal to modify the terms of Houston’s probation was within the court’s discretion. We affirm.

A jury found defendant Anthony Wayne Goodson, Jr., guilty on two counts of selling marijuana and a single count of selling oxycodone. The trial court placed defendant on formal probation for three years with a condition that he serve 90 days in county jail.
On appeal, defendant contends the trial court erred in refusing his request to instruct the jury on simple possession as a lesser included offense of selling controlled substances. Defendant also contends the trial court erred by speaking to a single juror about defendant’s potential punishment outside the presence of the remaining jurors and imposed conditions of probation that were unlawful.

Following the trial court’s denial of his motion to suppress evidence, defendant Christopher Robert Garcia pleaded guilty to second degree robbery and identity theft, and admitted he had a prior strike conviction. On appeal, defendant contends it was reversible error for the trial court to deny his motion to suppress evidence obtained pursuant to a warrantless and suspicionless search of his cell phone. We will affirm the judgment.

A jury found defendant and appellant David Dion Garcia guilty of grossly negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a), count 1), possession of a controlled substance (methamphetamine) while possessing a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 2), being a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a), count 3), felony child abuse under circumstances likely to cause great bodily injury or death (Pen. Code, § 273a, subd. (a), count 4), and possession of a controlled substance (Health & Saf. Code, § 11377, count 5). The jury also found true the allegations that defendant personally used a firearm in the commission of all the offenses (Pen. Code, § 12022.5, subd. (a)), that he had suffered one prior serious or violent felony conviction (Pen. Code, § 667, subd. (a)), and that he had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

Defendant Marius Alexander Dunn pleaded guilty to felony possession of marijuana for sale (Health & Saf. Code, § 11359). Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d. 436 (Wende) on behalf of defendant. Defendant was notified of his right to submit written argument on his own behalf, but he has failed to avail himself of the opportunity. We affirm the judgment.

Robert Drawn IV was convicted of the first degree murder of Waleed Wheatfall, the attempted murder of K. Robinson and related firearms charges. His defense at trial was that he was not the shooter. Drawn contends it was error to admit hearsay evidence that police had information about the direction the shooter fled, and that the error was prejudicial because it tied the shooter to a hat that contained DNA consistent with his own. Not so. The testimony was properly admitted for a relevant nonhearsay purpose and, in any event, it was not prejudicial, so we affirm. But we correct two sentencing errors properly conceded by the People.

Defendant Donya Shannon Conner pleaded no contest to burglary and admitted a prior Nevada burglary conviction was a serious or violent felony under California law. On appeal, he contends there was insufficient evidence to support the true finding that the Nevada conviction is a serious felony under California law. While taking the plea, the trial court incorrectly indicated that defendant would retain the right to challenge this issue on appeal. Because defendant’s plea was improperly induced by the trial court’s assertion that he could challenge on appeal whether his foreign conviction was a strike, defendant must be given an opportunity to withdraw his plea. We reverse the judgment and remand with directions to give defendant an opportunity to withdraw his plea.

Defendant Ernest Jim Choi appeals from a judgment after he pleaded no contest to felony stalking (Pen. Code, § 646.9, subd. (a)) and admitted three prior convictions alleged under Penal Code section 667.5, subdivision (b), receiving a sentence of three years in exchange for his plea. Choi contends he did not enter into the plea agreement following an intelligent and knowing evaluation of the plea, because the trial court misadvised him about the maximum potential punishment that he faced from the charges.
We conclude Choi was misadvised when the trial court and prosecutor told him his maximum exposure was six years. The record indicates he served only one separate prior prison term, and was therefore subject to only a one-year sentence enhancement, not three years, and his maximum exposure was thus only four years. We further conclude Choi was prejudiced, because the misadvisement made the plea offer appear more attractive than it was in reality, and he agreed to the offer only

A jury convicted defendant, Jeffrey Cole Brooks, of implied malice second degree murder following a fatal automobile collision caused by defendant’s extreme intoxication. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to 15 years to life in state prison. We modify defendant’s presentence custody credit and affirm the judgment as modified.

Appellant Anthony Bosch pled no contest to one count of possession for sale
of methamphetamine (Health & Saf. Code, § 11378) and admitted to a prior controlled substances conviction (§ 11370.2, subd. (c)). The trial court imposed a six-year sentence, with the last two years to be served on “Mandatory Community Supervision.” Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable sentencing or other post-plea issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplemental brief. We correct the trial court’s laboratory fee assessment and otherwise affirm.