CA Unpub Decisions

Defendant Charles Allen appeals from a judgment of conviction for one count of second degree robbery and one count of assault with force likely to cause great bodily injury. He argues that the trial court incorrectly imposed two one-year sentence enhancements due to his prior service of two terms in a state prison. Because Allen’s prior service in state prison was for one continuous period of time, it counts as only one term in state prison under Penal Code section 667.5, subdivision (g),[1] even though he was serving consecutive sentences in two separate cases. Thus, we agree with Allen that the trial court should have imposed only one prior prison term enhancement. So does the Attorney General. We modify the sentence imposed by striking one of the enhancements assessed pursuant to section 667.5, subdivision (b). As so modified, we affirm.

Petitioner, Jorge T. (father), filed an extraordinary writ petition (Cal. Rules of Court, rule 8.452) regarding his minor children S. T., age seven; Kaitlyn T., age five; and Jacob T., age one. Father seeks relief from the juvenile court’s order issued at the six-month review hearing terminating his reunification services and setting a Welfare and Institutions Code section 366.26[1] hearing for September 9, 2013. We deny the petition.

Appellant Jose G. (father) seeks reversal of the juvenile court’s dispositional order on the grounds the Kern County Department of Human Services (the Department) made insufficient efforts to determine if the children, J.G. and C.G. (collectively the children), had Indian heritage. Father also contends that substantial evidence did not support the juvenile court’s decision to deny reunification services to him. We disagree and will affirm the dispositional orders.

This is an appeal from a postjudgment modification of sentence to impose restitution pursuant to the court’s reservation of jurisdiction to do so at the original sentencing. Defendant and appellant Joe Televara Barajas contends the court committed prejudicial error by failing to require his presence at the postjudgment hearing. Respondent contends the error was harmless. We cannot agree. We reverse the judgment in part and affirm in part.

Defendant Don Goldman was charged with first degree premeditated murder (Pen. Code,[1] § 187, subd. (a)) with the personal use of a firearm causing death (§ 12022.53, subd. (d)) and possession of a firearm by a felon (former § 12021, subd. (a), now § 29800, subd. (b)). It was further alleged that defendant suffered three prior felonies resulting in prison terms within the meaning of section 667.5 subdivision (b). After a jury trial, defendant was convicted of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)) and being a felon in possession of a firearm. In a bifurcated proceeding the trial court found the prior conviction allegations true. The trial court subsequently sentenced defendant to a 14-year prison term.
On appeal, defendant contends the trial court erred in denying his motion to exclude evidence of a gun and the testimony of a witness pertaining to the gun as the evidence was discovered as the fruit of a violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He further argues the trial court erred in admitting certain phone records as the records were irrelevant to the proceedings. We find defendant’s contentions without merit and affirm the judgment.

On June 8, 2010, the Riverside County Department of Public Social Services, Child Protective Services (CPS) filed a second amended juvenile dependency petition alleging that J.B. (mother) had failed to protect her four sons, D.P., J.F., I.G. and N.D. The children were seven, six, four, and two at the time. The petition alleged that mother had an extensive history of abuse of methamphetamine; that she was currently pregnant and had tested positive for amphetamine and methamphetamine; that she had an extensive history with CPS, with prior substantiated allegations of general neglect and substance abuse; and that she had failed to benefit from prior services. As to the alleged fathers of D.P., J.F. and I.G., the petition alleged failure to support. As to the father of N.D., the petition alleged that he had been provided services in the past and had failed to benefit, in that he continued to neglect his child, and that he had an extensive criminal history.

Angelica W. appeals a juvenile court order terminating her parental rights to her minor daughter, Aryanna W., under Welfare and Institutions Code section 366.26.[1] Angelica challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating her parental rights. We affirm the order.

Rancho Guejito Corporation (Rancho Guejito) filed a petition seeking a workplace violence restraining order against Mitchell A. Perdue after a series of incidents involving Perdue after Rancho Guejito refused to pay Perdue approximately $326,000 for services that he claimed he had provided to Rancho Guejito. Prior to the hearing on Rancho Guejito's petition for a permanent workplace violence restraining order, Perdue filed a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) law. The trial court denied the motion to strike, and proceeded to issue a three-year workplace violence restraining order against Perdue.
On appeal, Perdue contends that the trial court erred in denying his anti-SLAPP motion, and further contends that the trial court erred in issuing the workplace violence restraining order. We conclude that Perdue has not established reversible error, and, therefore, affirm the orders of the trial court.

Defendant Dwight Welch, having been convicted of a felony, is prohibited from possessing firearms.[1] On March 8, 2012, in Stockton, California, he possessed a firearm.
Defendant pleaded no contest to possession of a firearm by a convicted felon. (Pen. Code, § 29800, subd. (a)(1).) Five related counts were dismissed for insufficient evidence and an additional count was dismissed in light of the plea.

The minor, Clayton I., appeals from a dispositional order adjudicating him a ward of the court after he admitted allegations he made criminal threats (Pen. Code, § 422). He contends on appeal that the matter must be remanded to the juvenile court to exercise its discretion to declare whether the offense constituted a felony or a misdemeanor. The People agree. We reverse and remand for the trial court to exercise its discretion and otherwise affirm the adjudication.

In early 2010, pursuant to a plea bargain, defendant Stephen Christopher Hamblin admitted several counts of child molestation involving two victims and was sentenced to a state prison term of 16 years four months.
Near the end of 2010, in a prior appeal in this matter, we reversed this judgment and remanded to determine whether any of the charges to which defendant pleaded guilty were time-barred; if so, defendant could withdraw his plea. We issued our remittitur on March 3, 2011. ( ADDIN BA xc <@ocsn> xl 17 s HFLMIZ000005 xpl 1 l "People v. Hamblin" People v. Hamblin (Dec. 29, 2010, C064030) [nonpub. opn.].)[1]
On remand, the parties agreed that defendant would not withdraw his plea and he would receive a prison term of 14 years. Defendant was resentenced accordingly on June 18, 2012; the trial court awarded defendant, among other credits, 889 days of actual time credit in prison (from the original sentence date of January 11, 2010, through the date of this resentence), and specified that the Department of Corrections and Rehabilitation would determine the conduct credits for these 889 days.
Now, on appeal again, defendant contends, and the People agree, (1) the abstract of judgment must be corrected to reflect the agreed resentence term of 14 years, and (2) the trial court erred in failing to determine defendant’s presentence custody conduct credit for “phase III” time, measured from the date of our reversal remittitur to the date of resentencing.

Defendant Dylan Scott Corral appeals his conviction for making criminal threats against his girlfriend, Jessica A. He contends (1) the trial court erred in denying his motion for acquittal; (2) there was insufficient evidence to sustain his conviction; and (3) the clerk’s probation minute order reflects the incorrect court facility fee. The People concede on all three issues. We find the first two concessions improvidently given and do not accept them. There was sufficient evidence to support the conviction and the trial court did not err in denying the motion for acquittal. We agree, however, the clerk’s probation minute order does not accurately reflect the judgment orally imposed and shall order it modified. We affirm the judgment.

Don Cunningham (decedent) succumbed to pneumonia in December 2004 at the age of 85. In October 2007, his daughter, Gail Castellini, filed a petition for an order instructing her (in the performance of her duties as the successor cotrustee for the Cunningham Family Trust (Trust)) to obtain an accounting from Willy Cunningham (decedent’s widow and cotrustee of the Trust) from December 2004 to present; to demand that Willy[1] restore Trust assets and lodge a true copy of decedent’s will (Will); to recover damages from Willy; and to remove Willy as a cotrustee.[2] In her response,[3] Willy contested only the issue of whether the Trust remained revocable after the death of her husband.[4] In December 2007, Willy lodged what she represented as being a true copy of the Will. Willy filed a voluntary accounting in February 2008 and a restated voluntary accounting in May 2009. In response to the instant litigation, she also filed an amendment to the Trust in May 2008 that sought to remove Gail as a successor cotrustee.

A jury convicted defendant Patrick Wiley of possession of a sharp instrument by a prison inmate (Pen. Code, § 4502, subd. (a)[1] (undesignated statutory references are to the Penal Code) and, in a trial by court, he was found to have a prior strike conviction for murder (§ 187). He was sentenced to a consecutive term of six years (midterm of three years doubled because of the strike) in state prison.
On appeal, defendant contends the evidence is insufficient to support the conviction and the conviction may not be reduced to an attempt. We agree the evidence does not support the conviction, but disagree with him that we may not reduce the offense to an attempt.