CA Unpub Decisions

Defendant Terence Bowman’s trial attorney employed an unusual strategy during defendant’s jury trial on the charge of rape. After the prosecution introduced defendant’s statement to the police that he had not had sex with the victim at all, defense counsel moved to introduce a prior inconsistent statement by defendant that sex had been consensual. Defense counsel did not introduce the prior inconsistent statement to prove the truth of the statement, i.e., sex had been consensual, but to undermine the believability of defendant’s other statement that sex had not occurred at all. In other words, defense counsel sought to make defendant’s prior statements so unreliable the jury could not rely on his prior statement to the police even to establish consciousness of guilt. The trial court excluded the prior inconsistent statement offered by the defense, and the jury convicted defendant of forcible rape. (Pen. Code, § 261, subd. (a)(2).) The trial court found defendant had s

Defendants Kevin Alexander Ventura and Maynor Diaz were convicted by jury of several counts of armed robbery and attempted armed robbery. They contend that the court erred in denying a motion to bifurcate the trial to have the gang enhancements tried separately, and in denying a motion for mistrial after a police officer witness revealed that Ventura stated that he and Diaz lived in the same residence. We affirm.

Following a jury trial, defendant was convicted of residential burglary and grand theft. He contends the trial court committed prejudicial error when it instructed the jury with CALCRIM No. 371 that it could consider an accomplice’s attempted suppression of evidence as a circumstance tending to show defendant’s consciousness of guilt. Defendant also contends the abstract of judgment should be modified to accurately reflect the sentence imposed. We conclude the trial court properly instructed the jury, but the abstract of judgment must be modified to indicate the sentence actually imposed by the trial court.

In 2015 defendant Armando Sanchez Perez moved under Penal Code section 1016.5 to vacate a 1993 guilty plea to assault with a deadly weapon, based on his assertion that he had not been advised of the immigration consequences of the plea. The trial court denied the motion, based on its finding that defendant had shown no prejudice from the absence of the required advisements. On appeal, defendant contends that the trial court abused its discretion in denying his motion, by relying on an erroneous assumption that there actually were no adverse immigration consequences to the plea. We find no abuse and therefore must affirm the order.

Michael Paster appeals from a judgment following his guilty plea to two counts of robbery, with admissions regarding knife-use and certain priors. The trial court sentenced him to 14 years. Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

Appellant Richard Michael Kelso appeals his conviction of three counts of communicating with a minor with the intent to commit a sexual offense, two counts of committing a lewd and lascivious act on a minor, and one count of inducing a minor to engage in a lewd act. Appellant contends: (1) the court lacked territorial jurisdiction over the latter three offenses because they occurred in Oregon; (2) the court erred in admitting into evidence a recording surreptitiously made by the minor’s father; (3) the court erred in failing to redact inadmissible or irrelevant matter from the recording; (4) a document containing a printout of the text messages between appellant and the minor was not properly authenticated; and (5) the sentence imposed was excessive. Finding no reversible error, we affirm.

On July 1, 2016, defendant Jimmy Lee Jones filed a motion seeking resentencing of his 2008 convictions and requesting appointment of counsel. Defendant’s convictions were for assault with a firearm and shooting at an occupied vehicle, with findings he was personally armed and discharged a firearm and committed the offenses for the benefit of or in association with a criminal street gang, and for unlawful possession of a firearm. (People v. Deloney (Aug. 4, 2011, C060503) [nonpub. opn.], pp. 1-3.) As authority for his motion, defendant cited Johnson v. United States (2015) ___ U.S. ___ [192 L.Ed.2d 569], which held that the residual clause of the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)), defining the statutory term “violent felony” as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was void for vagueness. Defendant purports to appeal from the trial court’s denial of his motion.
Counsel was a

Defendant Yatee Her was at a marijuana operation with several cameras in place. After he shot three people there, recordings and still photographs were shown to the jury, facilitating his convictions for one count of first degree murder, two counts of attempted murder, and related charges. (Pen. Code, §§ 187 [murder], 664/187 [two counts of attempted murder], 245, subd. (b) [two counts of assault with a semiautomatic firearm]; 29800, subd. (a)(1) [felon possessing a firearm], 186.22, subd. (b)(1) [crimes committed for the benefit of a criminal street gang], 12022.5, subd. (a) [personal use of a firearm]; 12022.7, subd. (a) [personal infliction of great bodily injury], 12022.53, subd. (d) [intentional discharge of a firearm causing death or great bodily injury].) The trial court found defendant had a prior strike and serious felony (a prior assault with a semiautomatic firearm). (§§ 667, subds. (a) & (b)-(i); 1170.12, subd. (b).) The court sentenced defendant to 125 years to

Under a negotiated plea agreement, appellant Jerry Ray Espinosa pled guilty to felony possession of tear gas (count 1; Pen. Code, § 22810, subd. (a)) and felony receiving stolen property with a value exceeding $950 (count 2; § 496, subd. (a)). Further, Espinosa admitted he had suffered a prior strike (§§ 667, subd (d); 1170.12, subd. (b)) and four prior felony convictions with a prison term (§ 667.5, subd. (b)). Pursuant to the plea agreement, the trial court reduced count 1 to a misdemeanor (§ 17, subd. (b)), and sentenced Espinosa to serve a total term of 32 months in state prison on count 2, comprised of the low term of 16 months, doubled for the strike. The court recommended a fire camp placement. Espinosa was sentenced to serve 30 days in county jail on the tear gas conviction, with credit for time served. The court ordered regular restitution, fines and assessments. Espinosa’s appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436

On November 2, 2015, an information charged defendant and appellant Orlando Daniel Chavez with felony theft of a vehicle with a prior conviction of theft involving a vehicle (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851) (count 1); and willfully destroying property with a value exceeding $400 (Pen. Code, § 594, subd. (b)(1)) (count 2). The information also alleged that defendant suffered a prior strike conviction (Pen. Code, §§ 459, 667, subds. (d) & (e)(1), 1170.12, subd. (c)(1)), and served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On December 10, 2015, defendant pled guilty to count 1 and admitted the prior strike allegation. Count 2 was dismissed subject to a Harvey waiver, which consisted of defendant agreeing to allow the trial court to consider the dismissed charge in ordering victim restitution.
On January 22, 2016, the trial court sentenced defendant to four years in prison, calculated as follows: two years for count 1, doubled to four years for t

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 Luis Julian Aleman appeals from his jury conviction of corporal injury of the mother of his child. (Pen. Code, § 273.5, subd. (a).) He raises a single issue on appeal—that the jury was improperly instructed on an amended version of section 273.5, subdivision (a), not in effect at the time of the crime. The Attorney General acknowledges the error, but maintains it was harmless. We agree, and affirm.

An information charged David Xavier Gonzalez with assault with a deadly weapon, namely a metal pipe (count 1); assault by means of force likely to produce great bodily injury (count 2); and active participation in a criminal street gang (count 3). Sentencing enhancements were alleged for committing the assault for the benefit of a criminal street gang, personally inflicting great bodily injury, having a prior strike conviction under the “Three Strikes” law and a prior serious felony conviction, and serving a prior prison term.
A jury found Gonzalez not guilty of assault with a deadly weapon as charged in count 1, but instead convicted him of the lesser included offense of simple assault. The jury also convicted Gonzalez of assault by means of force likely to produce great bodily injury as charged in count 2, active participation in a criminal street gang as charged in count 3, and found true all sentence enhancements. The court dismissed the strike prior, gang enhancement, an

In 2009, during the midst of the Great Recession, Glenn Olilang (Olilang), like so many others, found himself in economic difficulty following the collapse of the real estate market. His house in Lakewood, California (the Property), was “upside down”—that is, he owed more to his lenders than the house was worth. As a result, he entered into a “principal reduction” program for distressed homeowners administered by Michael Herrera and Juan Herrera (collectively, the Herrera brothers or the defendants).
The defendants, or so they promised Olilang, would purchase the Property through a short sale and then resell the house back to Olilang at a lower price than he originally paid and help finance the repurchase. The defendants, however, never mentioned to Olilang that prior to repurchasing his home he would have to lease the Property back from the defendants for a period of time.