CA Unpub Decisions

Francisco Enrique Gonzalez appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest to a charge of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

Appellant J.R. appeals from the juvenile court’s finding that he violated the terms and conditions of his juvenile probation by not following the rules and regulations of the Youth Services Center (Center),and imposing an increase of one year to his custodial time in the Center. He contends: (1) the condition allegedly breached was not proven to have been imposed as a condition of his probation; (2) even if imposed, there was not substantial evidence that he violated that condition; (3) the condition of probation did not include “attempts” to violate that condition; (4) the condition he allegedly violated was unconstitutionally vague; and (5) the court abused its discretion in extending his custodial time by an additional year. Further, appellant asserts that his due process rights were violated because the probation violation notice did not advise him that the prosecution would seek to increase his custodial time as a result of the alleged violations.[1]
We reject

In 2007, appellant Santiago Cardenas Morelos was convicted of multiple counts of various offenses, including numerous counts of forgery and receiving stolen property. A prison term of 21 years 4 months was imposed.On November 21, 2014, Morelos filed a motion for resentencing pursuant to Proposition 47.On August 5, 2015, the superior court recalled the sentence and resentenced Morelos in accordance with Penal Code[1] section 1170.18, reducing his total sentence to 12 years and awarding custody and conduct credits, which exceeded the sentence.Morelos appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm, but direct the preparation of a corrected abstract of judgment.

This case presents the following question: When a defendant petitions to have a prior felony conviction redesignated as a misdemeanor (Pen. Code, § 1170.18, subd. (f)),[1] who bears the burden of proof as to whether the crime in question “would have been … a misdemeanor” (ibid.) if Proposition 47 had been in effect at the time? We conclude the petitioning defendant bears the burden of proof on that issue. (See Evid. Code, § 500.)

While fleeing from a police officer, appellant, Federico Sanchez Anguiano, drove 85 miles per hour on city streets at night with the lights off, wove in and out of traffic, and crashed his vehicle into a parked flatbed trailer. The impact killed appellant’s girlfriend. At the time of the crash, appellant was under the influence of methamphetamine.
On appeal, appellant challenges his conviction for second degree murder. (Pen. Code[1], § 187, subd. (a).) According to appellant, the evidence was insufficient to establish that he acted with implied malice.
Implied malice requires a finding that the defendant was subjectively aware that his conduct was dangerous to human life. Appellant argues the evidence does not prove beyond a reasonable doubt that he knew that driving under the influence of methamphetamine was dangerous to human life and thus this subjective component of implied malice was not satisfied. Appellant further contends the evidence regarding the effects of meth

P. v. Superior Court



Filed 3/16/17 P. v. Superior Court CA4/2







NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Petitioner,

v.

THE SUPERIOR COURT OF
RIVERSIDE COUNTY,

Respondent;

MORRELL JAMOUR OWENS,

Real Party in Interest.



E067010

(Super.Ct.No. RIF1602132)

OPINION


ORIGINAL PROCEEDINGS; petition for writ of mandate. Becky Dugan, Judge. Petition granted.
Michael A. Hestrin, District A

On November 4, 2014, the voters approved Proposition 47, The Safe Neighborhoods and Schools Act (Proposition 47) which is set forth in former Penal Code section 1170.18.[1]Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It provided for a procedure that “[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” (§ 1170.18, subd. (a).)

A jury convicted defendant and appellant, Jonathan Foreman, of three counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) The court sentenced him to a total of five years in prison. Defendant contends the court violated his Fourteenth Amendment right to due process of law when it instructed the jury with CALCRIM No. 315 to consider an eyewitness’s certainty when making an identification. We reject this contention and affirm the judgment.

A jury found defendant and appellant Marcus Cole Carpenter, guilty of (1) conspiring to transport marijuana (Pen. Code, § 182, subd. (a)(1);Health & Saf. Code, § 11360, subd. (b)); (2) conspiring to possess marijuana for sale (Pen. Code, § 182, subd. (a)(1);Health & Saf. Code, § 11359); (3) possessing marijuana for sale (Health & Saf. Code, § 11359); (4) bringing a controlled substance into a prison (Pen. Code, § 4573); and (5) possessing marijuana in a prison (Pen. Code, § 4573.6).Defendant admitted suffering two prior strike convictions (Pen. Code, §§ 667, subds. (c)&(e)(1), 1170.12, subd. (c)(1)) and two prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)).The trial court sentenced defendant to prison for a term of six years, to be served consecutive to a prison term defendant was serving for a prior case.

This criminal matter arises out of an incident of petty vandalism that escalated into a physical struggle between defendant and appellant James Mickael Arch and several responding deputies from the San Bernardino County Sherriff’s Department. A jury convicted defendant of making criminal threats (Pen. Code,[1] § 422, subd. (a); count 1), resisting an executive officer (§ 69; count 2, Deputy Shaunna Ables), battery on a peace officer (§ 243, subd. (b); count 3, Deputy Ables), and vandalism (§ 594, subd. (a); count 6). The jury acquitted defendant of two additional charged counts of resisting an executive officer (§ 69, counts 4 (Deputy Ramon Lomeli) and 5 (Deputy Jesse Moon)), but in each case found defendant guilty of the lesser included charge of resisting a peace officer (§ 148, subd. (a)(1)). The trial court sentenced defendant to an aggregate term of three years eight months in prison.

On March 13, 2014, a first amended information charged defendant and appellant Michael Anthony Aleman with carjacking under Penal Code section 215, subdivision (a) (count 1); assault with a deadly weapon under Penal Code section 245, subdivision (a)(1) (count 2); and assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(4) (count 3). The information also alleged that defendant committed the offenses for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (b)(1). The information further alleged that defendant suffered two prior serious felonies under Penal Code sections 1170.12 and 667, and served three prior prison terms under Penal Code section 667.5, subdivision (b).

Defendant Ed Corrente appeals a judgment entered against him and in favor of plaintiffs Fedor Frastacky and Frastacky & Associates, Inc. (jointly, Frastacky or the plaintiffs) for $385,000. Frastacky sued Dermacia, a medical cosmetic company, as well as Corrente and other individuals who worked for the company, after Frastacky made loans to Dermacia that Dermacia failed to pay back prior to the company's failure. Corrente was the Chief Financial Officer for Dermacia during the relevant time period. Frastacky alleged that the defendants made material misrepresentations, concealed material facts, negligently misrepresented facts, conspired to misrepresent or conceal material facts, fraudulently transferred company assets, and/or breached fiduciary duties to Frastacky in their handling of Dermacia's business over the time period during which Frastacky made the loans and the loans came due.

Jimmy D. Smithwasaggressive, angry, and agitated while inside a public library. When the librarian escorted him out the door and told him to go home (Smith lived across the street from the library), Smith replied, "Fuck you, bitch. I'm going to go home and get a gun and come back and kill you" or "You're siding with them now, bitch? I'm going to go get my gun and shoot you."Fearing Smith would carry out his threat, the librarian locked the door and calledthe police.
Smith appeals his conviction of making a criminal threat in violation of Penal Code[1] section 422, asserting there was insufficient evidence to support his conviction. He also contends aprobation condition limiting his residence to one approved by his probation officer violates his constitutional right to travel and freedom of association. Neither contention has merit, and we affirm the judgment.

Defendant Thomas Garrett appeals his sentence, imposed after he pled guilty to two counts of committing a lewd act on a victim under the age of 14. Each count relates to a different victim. The trial court imposed a term of 10 years in prison on Garrett, comprised of an upper term of eightyearsas to one count, and aconsecutive term of two years as to the other count.
On appeal, Garrett contends that the trial court erred in relying on an improper aggravating factor—i.e., the victims' vulnerability—in declining to grant probation and in choosing to impose an upper term sentence. We conclude that even if we presume that the trial court's reliance on the aggravating factor at issue was erroneous, Garrett cannot demonstrate that he was prejudiced by the error. It is not reasonably probable that the trial court would have denied probation and sentenced Garrett to less than the upper term, even in the absence of consideration of the victims' vulnerability. We therefore