CA Unpub Decisions

Austin Acosta entered a negotiated guilty plea to one count of carjacking (Pen. Code, § 215, subd. (a)).[1] He also admitted he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and one prior strike conviction within the meaning of section 667, subdivisions (b)-(i).
The court sentenced him to a stipulated prison term of 15 years, consisting of the five-year midterm for carjacking (§ 215, subd. (b)), doubled because of the prior strike (§ 667, subd. (e)(1)), plus a consecutive five years because of the prior serious felony conviction (§ 667, subd. (a)(1)).
The court denied Acosta's motion to withdraw his plea and his application for a certificate of probable cause.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not identified any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the recor

On remand, defendant petitioned the trial court to resentence him under section 1170.126. The trial court held a hearing on the matter and also considered whether defendant should be ordered to register as a sex offender. The court denied defendant’s resentencing petition and ordered him to register as a sex offender. Defendant appeals, contending the court abused its discretion in denying his petition and imposing lifetime registration as a sex offender. We shall direct the trial court to amend the abstract of judgment to reflect the disposition in our prior opinion, and in all other respects we shall affirm the judgment.

On appeal, defendant’s primary contentions are that there was insufficient evidence to support his convictions for kidnapping to commit robbery and attempting to dissuade a victim. He also claims that the trial court erred in instructing the jury with respect to the attempting to dissuade a victim offense, refusing to stay his sentence for the same pursuant to 654, and denying his motion to suppress. We shall conclude that there is insufficient evidence to support the asportation element of kidnapping to commit robbery, reverse defendant’s conviction for that offense, and remand the matter to the trial court for resentencing. We shall affirm the judgment in all other respects.

On appeal, defendant asserts (1) insufficient evidence supports his assault with a deadly weapon convictions, (2) the court erroneously instructed the jury on both the assault and stalking charges, (3) the court failed to instruct on simple assault as a lesser included offense of assault with a deadly weapon, (4) the court erred in excluding certain experimental evidence concerning his vehicle’s rate of speed and stopping ability, (5) the court improperly lowered the burden of proof on the stalking charge by failing to give a unanimity instruction, and (6) that the alleged errors were cumulatively prejudicial. Defendant also claims the court abused its discretion in denying his motion to review certain police personnel files under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the judgment.

S.G. appeals an order extending his involuntary commitment because he represents “a substantial danger of physical harm to others” because of a mental disorder (Pen. Code, §§ 1026, 1026.5[1]), after having been found not guilty by reason of insanity for attempted murder (§§ 664, 187, 1026). We conclude, among other things, that S.G. has not shown that the trial court erred in making its evidentiary rulings. We affirm.

After taking out a loan for a rental property, defaulting on the loan, obtaining a loan modification, and defaulting again, the borrower submitted five further loan modification applications, all of which were rejected by the lender. The borrower then sued the lender and its loan servicer, seeking compensatory, treble, and punitive damages. The trial court granted summary judgment and dismissed the borrower’s case. The borrower appeals. We conclude the trial court’s ruling was correct and affirm.

Danny Simonian appeals from an order denying his petition seeking to recall his sentence for false imprisonment and resentence him under the Three Strikes Reform Act of 2012, enacted by the voters as Proposition 36. The trial court summarily found Simonian ineligible for resentencing without stating any reason for its decision. Because Simonian sought resentencing for a qualified three-strike sentence and his petition listed only nondisqualifying prior offenses, we reverse and remand for the trial court to reconsider Simonian’s petition.

Two gang members brutally beat a rival gang member to unconsciousness and rolled him in a trash can to an empty lot where their fellow gang members hang out. A third gang member at the lot “finished the job” by swinging a t-shirt full of cinderblock shards at the rival’s head, moving the rival’s body to a park, and setting it ablaze. A jury convicted the first two gang members of kidnapping and second degree murder and the third of first degree murder. They all appeal. We conclude the trial court properly admitted the jailhouse confessions of two of the three gang members, properly instructed the jury, and properly imposed separate sentences for the kidnapping and murder. We further conclude that the convictions are supported by substantial evidence. Thus, we affirm the convictions and sentences, except to direct that clerical errors in two of the sentences be corrected.

In this juvenile dependency case, the juvenile court gave notice to the Bureau of Indian Affairs when one parent reported her possible Indian ancestry with an “unknown tribe”; however, when that parent later identified a specific Indian tribe, the court did not give notice to that specific tribe. The other parent argues in this appeal that this was error under the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The Los Angeles County Department of Children and Family Services (Department) concedes this was error. We agree. Accordingly, we conditionally remand this matter to the juvenile court to give the appropriate notice.

Defendant Alain Stefflre was convicted in 1994 of unlawfully driving or taking a vehicle, recklessly evading an officer, and several related crimes. Based on his prior convictions, he was sentenced to multiple terms of 25 years to life in prison as a third strike offender. He now appeals from the postjudgment order denying his petition for resentencing under Penal Code section 1170.126,[1] enacted by Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36). The trial court found defendant was “armed” during the commission of his underlying crimes and therefore was ineligible for resentencing under Proposition 36. We reject his challenges to that ruling and affirm the order.

Appellant and executor Mary Bock appeals from the probate court’s orders awarding compensation for ordinary services to (i) Bock, as personal representative of decedent, pursuant to Probate Code section 10800,[1] and (ii) her attorney, pursuant to section 10810. Bock contends the court miscalculated the compensation that she and her attorney were statutorily entitled to receive.
Sections 10800 and 10810 set forth identical formulas for calculating ordinary compensation for personal representatives and their attorneys based on “the value of the estate.”[2] In simple terms, the larger the value of the estate, the greater the amount of ordinary compensation awarded. In this matter, the probate court determined that Bock and her attorney were entitled to receive a lesser amount than Bock requested, finding that Bock’s request inflated the value of the estate by double counting what was effectively a single asset. We agree and accordingly affirm.

Amanda McGinty, in propria persona, appeals from a child custody order entered in her dissolution proceeding. She contends the trial court abused its discretion in denying her request to move to Texas with her two children and awarding sole custody of the children to their father, respondent Patrick McGinty, in the event she moves out of state. We agree that the court erred in several respects and therefore reverse.

Denise and Ralph Randolph continued to live in the family residence for several years after dissolution of their marriage. During that time Denise used her separate property to make monthly payments on the home loan and pay property taxes. After the sale of the residence and distribution of the proceeds, Denise sought reimbursement from Ralph. The trial court ordered reimbursement. We reverse.

Marcial Garcia appeals a judgment following conviction of second degree robbery, false imprisonment by violence, and street terrorism, with findings that he committed the criminal offenses for the benefit of a criminal street gang, suffered one prior serious felony strike conviction, suffered three prior serious felony convictions, served three prior prison terms, and committed the offenses while on bail for pending criminal charges. (Pen. Code, §§ 211, 236, 186.22, subds. (a) & (b), 667, subd. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a)(1), 667.5, subds. (a) & (b), 12022.1, subd. (b).)[1] We modify the judgment to strike one of the three five-year sentence enhancements imposed pursuant to section 667, subdivision (a), but otherwise affirm.
Christian Botello appeals a judgment following conviction of second degree robbery, false imprisonment by violence, and street terrorism, with findings that he committed the criminal offenses for the benefit of a crimina