CA Unpub Decisions

Citing Penal Code section 1237.5[1] the superior court denied the request by petitioner Jorge Armando Juarez Perez for a certificate of probable cause. Petitioner contends the request states arguable issues on appeal, and therefore it was an abuse of discretion for the court to deny the request. The Attorney General has indicated it has no objection to this court granting the relief requested in the instant petition.[2] We agree with petitioner and grant the petition.
In August 2012, petitioner was charged in a felony complaint with one count of possession for sale of a controlled substance and one count of possession of a firearm on school grounds. Petitioner’s family was concerned that petitioner’s legal issues would present immigration problems for him based on his status as a permanent legal resident. They hired attorney Alex Perez to defend him on his drug case based on Perez’s representations that he could handle petitioner’s criminal matter and avoid petitioner’s deportation to Mexico.

Minor Garrett W. admitted he violated Penal Code[1] section 243.4, subdivision (e)(1), sexual battery and the juvenile court judge declared him a ward of the court pursuant to Welfare and Institution Code section 602. He contends on appeal the facts underlying the charge are different than those he admitted and do not fall within the scope of section 243.4, subdivision (3)(1). We affirm.

Jeremy Matthew Mitchell appeals from a judgment after a jury convicted him of aggravated assault and attempted second degree robbery. Mitchell argues insufficient evidence supports his conviction for attempted second degree robbery, the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted theft, the court erred in failing to stay the sentence on his conviction for attempted second degree robbery, and the abstract of judgment must be corrected. Although we agree the sentence on his attempted robbery conviction must be stayed and the abstract of judgment must be corrected, none of his other contentions have merit. We affirm the judgment as modified.

This appeal illustrates how different standards of review can produce dramatically different outcomes. We have before us two matters:
(1) The appeal from an order of the trial court granting a motion for sanctions pursuant to section 128.7 of the Code of Civil Procedure[1] against appellant Phuong Ton Nu, erstwhile plaintiff in this now-dismissed action. Nu is no longer the plaintiff because she dismissed this action the day before the section 128.7 motion was set to be heard.
(2) The motion on appeal by respondent Mark Nguyen for sanctions for bringing a frivolous appeal.
We affirm the order granting the motion for sanctions, under the combination abuse of discretion and substantial evidence standards which apply to section 128.7 review. Substantial evidence readily supports the trial judge’s conclusion Nu did not have evidentiary support for her initial complaint based on entrusting some $70,000 to defendant Mark Nguyen. (See § 128.7, subd. (b)(3).) Nu simply contradicted herself too many times about what the money was for and where it went.

A jury convicted Charles Michael Reynolds of first degree murder, premeditated attempted murder, two counts of robbery and active participation in a criminal street gang. The jury also found true allegations Reynolds committed the murder during a robbery and while being an active participant in a criminal street gang, vicariously discharged a firearm causing great bodily injury and death, and committed all crimes for the benefit of, at the direction of, or in association with the Rollin 20’s criminal street gang. The trial court sentenced Reynolds to life without the possibility of parole for the murder, plus 25 years for vicarious use of a gun, imposed concurrent prison terms for the attempted murder and robberies, and stayed imposition of sentence for active participation in a criminal street gang pursuant to Penal Code section 654.
Reynolds argues the trial court violated his state and federal Constitutional right to due process of law by admitting an in-court eyewitness identification which was the result of an impermissibly suggestive photographic lineup introduced in a codefendant’s earlier trial.[1] He also asserts the trial court prejudicially erred by not giving CALCRIM No. 240 on causation. We find no error on either point and affirm.

A modification decision.

Appellant/defendant Vincent Paul Quintero pleaded no contest in two separate cases to stalking while a court order was in effect (Pen. Code,[1] § 649.9, subd. (b)) and corporal injury to a cohabitant with a prior conviction (§ 273.5, subd. (e)(1)). He committed both offenses against his former girlfriend. Defendant was sentenced to two years in state prison. On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.

Appellant asks this court to independently review the materials considered by the trial court during a Pitchess hearing (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)). We have conducted the requested review and discerned neither procedural error nor abuse of discretion. The judgment will be affirmed.

The petitioner J.P. is the mother (mother) of A.D., born in April 2009. Mother challenges the juvenile court’s orders of June 26, 2013, finding true the allegation that she caused the death of A.D.’s 14-month-old brother through abuse or neglect (Welf. & Inst. Code, § 300, subd. (f))[1] and denying her reunification services for the same reason (§ 361.5, subd. (b)(4)). As a matter of judicial economy, we decline to address the merits of mother’s petition because she does not challenge a number of allegations that were also found true. Further, even if we were to resolve this petition in mother’s favor, it would not realistically provide any tangible benefit to her with regard to this or future child welfare proceedings. This is because the appalling nature of the unchallenged findings that she abused and neglected A.D.’s brother would prevent any such benefit from accruing to mother, even were we to reverse the finding that this abuse and neglect caused the toddler’s death. Therefore we dismiss the writ petition.

A jury found defendant and appellant Joseph Angel Chavez guilty of attempting to deter an executive officer from performing his duties or resisting an executive officer by force or violence (Pen. Code, § 69),[1] willfully resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Defendant admitted suffering a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), and three prior convictions for which he served prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a term of five years, eight months.[2]
Defendant raises 15 issues on appeal. First, defendant contends the trial court erred by denying his motion concerning the State’s failure to gather and preserve evidence.[3] Second, defendant asserts the trial court erred by ruling evidence of a deputy’s prior use of excessive force could be admitted contingent on defendant testifying. Third, defendant contends the trial court erred by admitting evidence of defendant’s prior conviction for resisting arrest.

A jury found defendants Charles Gonzalez and Frank Marshall Martinez guilty as charged of the premeditated, attempted murders of Lamar Clemmons and Derek Edwards (counts 1 & 2), assaulting Clemmons and Edwards with a firearm (counts 3 & 4), and the second degree robbery of Edwards (count 5). (Pen. Code, §§ 664, 187, subd. (a), 245, subd. (a)(2), 211.)[1] The jury found multiple firearm enhancements true in each count, and great bodily injury (GBI) enhancements against Martinez in counts 4 and 5. (§§ 12022.53, subds. (b), (c), (d), 12022.5, subd. (a), 12022.7, subd. (a).) Gonzalez was sentenced to 54 years to life, and Martinez was sentenced to 59 years to life.
We reverse Martinez’s conviction in count 1 and Gonzalez’s convictions in counts 2 and 4 based on insufficient evidence. The prosecution tried the case based solely on the theory that each defendant directly perpetrated each attempted murder and each firearm assault on each victim. Hence no aiding and abetting instructions were given on counts 1 through 4; they were only given on the robbery charge in count 5. As will appear, this was a mistake on the part of the prosecution.
We also agree Gonzalez is entitled to three days of additional presentence custody credits (1,048 days, not the 1,045 awarded), and a new minute order and corrected abstract of judgment must be issued to show that Gonzalez’s personal use enhancement in count 3 is based on section 12022.5, subdivision (a), not section 12022.53, subdivision (b), because assault with a firearm is not an offense listed in section 12022.53, subdivision (a). We reject defendants’ other claims of error, affirm the judgment in all other respects, and remand the matter for resentencing.

A jury convicted defendant Jairo Fidel Guzman of vehicle burglary (count 1—Pen. Code, § 459),[1] receiving stolen property (count 2—§ 496, subd. (a)), felon in possession of a firearm (count 4—§ 12021, subd. (a)(1)), and active participation in a criminal street gang (count 6—§ 186.22, subd. (a)). The trial court found true allegations that defendant had suffered two prior strike convictions. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A).) Prior to sentencing, the court denied defendant’s Romero[2] motion to strike his prior strike convictions. The court sentenced defendant to an aggregate term of 75 years to life consisting of the following: 25 years to life on count 1; 25 years to life on count 2, stayed pursuant to section 654; a consecutive 25 years to life on count 4; and a consecutive 25 years to life on count 6.

Linda S. appeals from a January 2013 postpermanency review hearing. She contends that the juvenile court erred in not ordering six months of reunification services for her under Welfare and Institutions Code section 366.3 because additional reunification services with her youngest daughter, S.S., was the best alternative for S.S. (Undesignated statutory references are to the Welfare and Institutions Code.) We disagree. Although the juvenile court also made findings as to Linda's older daughter, M.S., Linda does not raise any issues on appeal with respect to M.S.

A jury found defendant Gilbert Sanchez guilty of assault with a deadly weapon by a prisoner not serving a life sentence (Pen. Code, § 4501; count one) and possession of a sharp instrument by a prisoner (Pen. Code, § 4502, subd. (a); count two). The trial court found that defendant had three prior serious or violent felony convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Defendant’s request to strike the prior convictions for purposes of sentencing was denied. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) He was sentenced to prison on count one for 25 years to life consecutive to the term he was then serving. Sentence on count two was stayed pursuant to Penal Code section 654. Defendant was awarded no presentence credit and was ordered to pay a $200 restitution fine (Pen. Code, § 1202.4) and a $200 restitution fine suspended unless parole is revoked (Pen. Code, § 1202.45).