CA Unpub Decisions

In December 2012, pursuant to a plea agreement, Mark Adam Piepenbrink pled guilty to attempted burglary of an inhabited residence (Pen. Code, §§ 664/459, 460, 667.5, subd. (c)(21)),[1] and admitted having served four prior prison terms (§§ 667.5, subd. (b), 668) and having suffered one prior strike conviction (§ 667, subds. (b)-(i)). At the time Piepenbrink pled guilty, he entered into a plea agreement that provided that he would receive a stipulated sentence of three years in prison, and that he would be released on his own recognizance pending sentencing. The plea agreement also states that if Piepenbrink were to willfully fail to appear for sentencing, he would be sentenced "unconditionally," and would not be permitted to withdraw his plea. After Piepenbrink pled guilty, the court said to him, "Come back when we tell you to come back, we've got a deal at three." The court then accepted Piepenbrink's plea.
Piepenbrink failed to appear at the scheduled sentencing hearing, and the trial court issued a warrant for his arrest. Piepenbrink was later arrested and brought before the court for sentencing. The court sentenced Piepenbrink to seven years in prison.
On appeal, Piepenbrink claims that the trial court erred in sentencing him to seven years in prison because the plea agreement required that he be sentenced to three years in prison unless he committed another crime while on release pending sentencing. We reject this claim and affirm.

A court found Richard Sanders guilty of commercial burglary (Pen. Code, § 459)[1] and check forgery (§ 470, subd. (d)). Sanders admitted having a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and the court found true allegations he had three prior prison commitment convictions (§ 667.5, subd. (b)). The court sentenced him to four years in prison and awarded him 776 days of presentence custody credit, consisting of 518 days of actual custody credit plus 258 days of conduct credit.
Sanders appeals, contending he is entitled to an additional 166 days of conduct credit. We disagree and affirm the judgment.

Diane Stretton appeals from a probate court order denying her motion to disqualify a probate court judge (Code Civ. Proc., § 170.6), and rejecting her objections to a status report on the administration of her father's estate.[1] We affirm.

Between May and August 2012, unknown suspects removed copper wire from a commercial business and threw it over a fence. From a hiding place, defendant Michael Kevin Sisco observed the thefts and retrieved some wire from outside the fence. The business owner discovered the thefts and alerted local recycling firms. Later that day, a recycler advised the owner that defendant had brought in cables similar to the ones taken in the thefts. When defendant returned to the recycler, a Yuba County Sheriff’s deputy questioned him about the copper. He admitted that he had been “peeling from the ones who were peeling from the wrecking yard.”
Defendant pled no contest to receiving stolen property. Imposition of sentence was suspended and defendant was placed on probation on the conditions, among others, that he obey all laws and report to the probation department. He was ordered to make restitution to the victim in the amount of $180 and pay a $240 restitution fine, a $240 restitution fine suspended unless probation is revoked, a $370 presentence report fee, a $40 court operations fee, a $30 court facilities assessment, and booking and citation fees.

Defendant Bi Le was arrested and searched subsequent to the arrest. The arresting officer found methamphetamine in his pocket, and defendant pled no contest to possession of methamphetamine after the magistrate denied his motion to suppress the evidence found on him on the ground that the officer lacked probable cause to arrest him. On appeal, he contends the trial court erred in denying his motion. He also contends that the amount of his restitution fine violated the constitutional prohibition against ex post facto laws. We disagree and affirm.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we note an error requiring correction of the abstract and 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.)

After he shot his stepson during an argument, defendant Morris William Hyman pled no contest to attempted murder without premeditation, admitted personally using a firearm in the commission of the crime, and was sentenced to prison.

Appointed counsel for defendant Chanh Thammavong 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.) 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.)
Defendant was charged with transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) He waived his right to a jury trial and submitted the matter to the court based on the following stipulated facts: “On February 11, 2012 at approximately 3:19 p.m. Orland Police Officer Kyle Cessna was on patrol, driving a marked OPD police vehicle. On Fifth St. north of Tehama St. within the City of Orland, Cessna observed an individual riding a bicycle. The bicyclist was heading south on Fifth St., the same direction as Cessna was travelling. There is a stop sign on the corner of Fifth and Tehama, regulating traffic on Fifth St. Officer Cessna observed that the bicyclist failed to stop for [the] stop sign, and just continued across Tehama on Fifth. The bicyclist then cut diagonally across Fifth St. and [Officer Cessna] got the rider’s attention by honking the horn on the patrol car. The bicyclist looked back at the patrol car and Officer Cessna recognized him as [defendant]. Cessna motioned for [defendant] to come to Cessna’s location at the patrol car. As [defendant started] to walk toward Cessna, Cessna observed the defendant reach into his pants pocket and then put his hands behind his back. Cessno [sic] could see that [defendant] was holding something in his hand, but could not tell what it was. Cessna started to walk toward the defendant and saw the defendant drop what appeared to be a pack of gum and start to walk toward Cessna. Cessna felt that the defendant was trying to conceal something by his actions; he decided to detain [defendant]. [Defendant] was handcuffed and asked to sit on the curb. Cessna picked up the packet of gum that defendant had dropped. Cessna opened the pack and [saw] some white tissue paper. Inside the tissue paper was a piece of white plastic [] tied with a knot. Inside the knotted piece of plastic was a white crystalline substance, which Cessna believed was methamphetamine. [Defendant] was arrested and the white plastic and its contents were seized.
“Officer Cessna, later in the day on June 29, weighed and tested the white crystalline substance. It tested presumptively positive for methamphetamine and weighed out to approximately .2 grams, net weight. Subsequent laboratory testing confirmed that the substance was methamphetamine. Senior Criminalist Kirsten Wallace of the California Department of Justice, Chico Laboratory tested the substance and verified that it was methamphetamine. The net weight of the methamphetamine submitted to the crime lab was .10 grams. Both Officer Cessna and Criminalist Wallace would offer an opinion, based upon training and experience, that .10 grams of methamphetamine is a ‘usable amount’ of the drug.”

In May 2012, a jury found defendant Erin Crawford guilty of second degree robbery, during which he personally used a gun. The trial court sentenced him to 12 years in state prison.
Defendant’s focus on appeal centers on a photographic exhibit of him, in which he appears to be holding a gun. He contends the trial court abused its discretion under Evidence Code section 352[1] in admitting the photo into evidence, and trial counsel was ineffective for failing to argue other bases for excluding it. We shall affirm the judgment.

A jury rejected defendant Alfredo Daniel Tafoya’s imperfect self-defense or defense of another and convicted him of the second degree murder of two young men at a quinceañera populated by both Norteño and Sureño gang members. On appeal, he contends the trial court committed prejudicial error by failing to give a defense instruction on antecedent threats made by Norteños. We disagree that the modified instruction accepted by defense counsel constituted ineffective assistance of counsel or reversible error. Because we conclude there was no prejudice, we affirm the judgment.

A jury convicted defendant Leroy Allen Heller of sexual penetration of a child 10 years of age or younger (counts one and two), committing a lewd and lascivious act on a child under 14 years of age (counts three through ten), and using a minor to pose for pornography (counts eleven through thirty-two). The trial court sentenced defendant to a determinate term of 98 years eight months in prison and an indeterminate term of 60 years to life in prison.
Defendant now contends (1) the trial court abused its discretion in allowing the grandmother to identify defendant’s fingers in a photograph; (2) a detective should not have been permitted to testify that he thought the mother was lying during an investigative interview; (3) the trial court improperly excluded defendant’s out-of-court statement explaining why he left Sacramento, because the statement was admissible under the state-of-mind exception to the hearsay rule; (4) there was insufficient evidence to support instructing the jury with CALCRIM No. 372 [defendant’s flight]; (5) the count six conviction for lewd and lascivious conduct involving a green sex toy must be reversed because there was insufficient evidence of more than one act with the green sex toy; (6) the count eight conviction for lewd and lascivious conduct involving a red object must be reversed because there was insufficient evidence of more than one act with the red object; (7) some of the convictions for using a minor to pose for pornography must be reversed because certain pairs of photographs do not depict different poses; (8) some of the sentences for using a minor to pose for pornography must be stayed pursuant to Penal Code section 654[1] because the photographs do not depict different poses; (9) additional sentences must be stayed pursuant to section 654 because they are based on the same conduct; and (10) insufficient evidence supports the count thirty-one conviction for using a minor to pose for pornography, because that charge was based on a blurry image of an arm.

In January 1966 defendant and appellant, Eddy Artola, was sentenced to a Three-Strikes term of 30 years to life in prison based upon his conviction of the serious and/or violent felony of second degree robbery (Pen. Code, § 211)[1] and his prior convictions of the serious and/or violent felony of second degree robbery (§ 211) and the serious felony of attempted robbery (§§ 664, 211). He appeals from the trial court’s denial of his post-judgment petition to recall his life sentence and resentence him to a determinate term pursuant to section 1170.126.[2] We affirm the trial court’s order.[3]

A.M., a minor, appeals the juvenile court order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602. The juvenile court sustained a wardship petition after finding true allegations that appellant had committed two second degree robberies (Pen. Code, § 211). Appellant subsequently admitted the allegation that he had resisted, obstructed, or delayed a peace officer (Pen. Code, § 148, subd. (a)(1)). Appellant was ordered to serve 210 days in the Juvenile Facility, with credit for 75 days. The court also stated that appellant had the possibility of earning an early release for one-third of his commitment.

T. M. appeals from the order of the juvenile court terminating her parental rights to Aniya (age 7), J. (age 4), and Al. (age 3). (Welf. & Inst. Code, § 366.26.)[1] We affirm.[2]