CA Unpub Decisions

A jury found defendant Sergio Antonio Valencia guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); all further statutory references are to this code) and making a criminal threat (§ 422, subd. (a)), with a true finding he personally used a deadly weapon (§ 12022, subd. (b)(1). Defendant admitted several enhancement allegations, including one for a prior serious felony conviction (§ 667, subd. (a)(1)), and the superior court sentenced him to seven years in prison.
On appeal, defendant requests we independently review the denial of his pretrial motion for discovery of a police officer’s personnel record. The Attorney General agrees with this request. Defendant has also filed a request to augment the record to include the personnel record. We deny defendant’s augmentation request and conclude the trial court properly denied his discovery motion. Defendant also challenges the sufficiency of the evidence that he had the present ability to commit an assault and claims the trial court erred in failing to give a unanimity instruction on the criminal threat charge. Because the evidence supports the jury’s verdict and there was no prejudicial instructional error, we affirm the judgment.

Defendant Hector Delio Aguilar Jaramillo was convicted of the murder of Roberto Martinez. Defendant challenges his conviction on appeal. We affirm.
First, defendant argues there was insufficient evidence to support his conviction. We disagree. There was sufficient evidence to support the conviction, based on DNA found at the scene, the testimony of a blood spatter expert, and the similarity between defendant’s shoe size and the size of bloody shoe prints found at the scene.
Second, defendant argues the trial court erred by failing to allow evidence of a third party’s culpability in the murder. We find no abuse of discretion; defendant did not offer any evidence that linked a third party to the perpetration of the murder.

Charles Elliot Guyette pled no contest to three felony counts: commercial burglary (Pen. Code, § 459),[1] possession of stolen property (§ 496, subd. (a)) and forgery (§ 475, subd. (c)), and admitted a prior strike conviction. In exchange, the People agreed to the dismissal of two prior prison term enhancements and a stipulated sentence of five years four months, which the court subsequently imposed. On appeal, Guyette contends the trial court erroneously denied his suppression motion because the incriminating evidence was seized while he was illegally detained, substantial evidence does not support the finding he consented to be searched, and the resulting arrest was illegal. Thus, all fruits of the detention, including his statements and the incriminating items taken from his pockets, should have been suppressed. We disagree and affirm.

A jury convicted Victor Alexander Marquez of the stabbing murder of Maria Juarez (Pen. Code, § 187, subd. (a)) and found true the special circumstance that the murder was committed during the commission of a robbery (id., § 190.2, subd. (a)(17)(A)). The trial court sentenced Marquez to a term of life without the possibility of parole. He was 17 at the time of the crime. There is no doubt Marquez committed the murder. He confessed to the crime, his DNA was found at the scene as the result of a wound he suffered during the murder, and Juarez’s and Marquez’s DNA was found on the murder weapon that was hidden in his bedroom.
Marquez argues the trial court erred when it refused to suppress his confession and the incriminating evidence found when police officers searched his residence pursuant to a probation search condition. He also claims the trial court erred when it denied his numerous motions for the appointment of new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We disagree and affirm the conviction.
Marquez also contends the sentence of life without the possibility of parole constitutes cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. While this case was pending, the United States Supreme Court issued its decision in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller), which held that a sentencing scheme that mandates a sentence of life without the possibility of parole for a juvenile offender for a homicide offense constitutes cruel and unusual punishment.

Defendant appeals his conviction of evading a police officer, contending he was improperly denied a continuance to prepare for trial after his motion to represent himself was granted. He argues the failure to grant a continuance violated his right to due process of law. We disagree and affirm.

Appellant Juan Carlos Oregon and his codefendants, Jaime Vidal Aguirre and Anthony Manuel Perez, were jointly charged with offenses arising from a car chase and shooting involving two police officers. After the trial court severed appellant’s trial from those of the codefendants, a jury convicted appellant of two counts of attempted premeditated murder of a peace officer (Pen. Code,[1] §§ 664, subds. (a) & (e), 187, 189; counts 1 & 2), two counts of assault upon a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2); counts 3 & 4), and one count each of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 5), receiving a stolen vehicle (§ 496d, subd. (a); count 8), and recklessly evading a peace officer while operating a motor vehicle (Veh. Code, § 2800.2; count 9). The jury also found true the gang enhancement allegations in each count (§ 186.22, subd. (b)(1)), and the firearm enhancement allegations in counts 1 through 4 (§ 12022.53, subds. (c) & (e)(1)). The trial court imposed an aggregate prison term of 79 years to life.

Defendant Joseph Steven Meza appeals as error the trial court’s order to stay, rather than strike, two prison-prior sentence enhancements. (Pen. Code § 667.5, subd. (b).)[1] The People agree that two enhancements must be stricken. Defendant also points out two clerical errors in the abstract of judgment. Again, the People agree that the clerical errors should be corrected. We will order the necessary modifications to the judgment and the abstract.

In November 2011, a jury found defendant David Michael Juarez guilty of the first degree murder of Diana Burch. (Pen. Code, § 187, subd. (a).)[1] The murder occurred around April 10, 1989, over 20 years before trial. Defendant was sentenced to 25 years to life in prison.
Defendant principally claims that the court violated his federal due process rights and section 1369 when, on March 13, 2009, the court did not immediately conduct a hearing on defendant’s competency to stand trial, even though it had just received the report of Randall Norris, Ph.D., a court-appointed psychologist, that defendant was incompetent to stand trial. Rather than immediately conduct the hearing, the court granted the prosecution’s request to appoint another psychologist, Steven Jenkins, Ph.D., to assess defendant. After Dr. Jenkins reported that defendant was competent, the court appointed a third expert, Kenneth Fischer, Ph.D., to assess defendant. After Dr. Fischer reported that defendant was competent, the court conducted the competency hearing and the jury found defendant competent. Defendant was later tried and found guilty of the murder. We find no due process or statutory violation in the court’s refusal to conduct the competency hearing until after Drs. Jenkins and Fischer evaluated defendant. (§ 1369, subds. (a), (c); see Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 489-490.)
Defendant further claims, and the People agree, that defendant’s presentence custody credits were improperly calculated, and that defendant should have been awarded 3,243 total credits rather than 2,901 total credits. We agree and modify the judgment to award defendant the additional presentence custody credits. In all other respects, we affirm the judgment.

Defendant and appellant Donald Joseph Monplaisir appeals after he pleaded no contest to 12 counts of committing a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (c)(1)), and 36 counts of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c), (d)). He contends that he should be entitled to withdraw his plea, because he was mistakenly told that he would be able to appeal the denial of his speedy trial motion. The People concede that defendant should be afforded the opportunity to withdraw his plea. We reverse and remand with directions.

A jury convicted defendant and appellant Jose Antonio Rivera of 27 counts of second degree robbery (counts 1-8, 10, 15, 17-26, 28, 29, 33, 37-40—Pen. Code § 211),[1] eight counts of attempted second degree robbery (counts 9, 11, 14, 27, 32, 34-36—§§ 664, 211), and found true 31 allegations that he personally used a handgun in the attached counts (§ 12022.5, subd. (a)).[2] Another jury convicted defendant and appellant Cruz Rodriguez Vasquez of 22 counts of second degree robbery (counts 3-6, 8, 10, 15, 18-24, 26, 28, 29, 33, 37-40—§ 211), six counts of attempted second degree robbery (counts 9, 11, 27, 34-36), and found true 25 allegations a principal was armed with a handgun in the attached counts (§ 12022, subd. (a)(1)).[3]
The court sentenced Rivera to an aggregate term of 86 years, 8 months’ incarceration. It sentenced Vasquez to a total term of 39 years’ imprisonment.

A modification decision.

George Rouston, a minor charged as an adult, pled guilty to assault with a semiautomatic firearm, and admitted enhancements for committing the crime for the benefit of a gang, personal use of a firearm, and personal infliction of great bodily injury. On appeal, he asserts the trial court improperly punished him multiple times for his single firearm use. We find no reversible error and affirm.

In October 2009, the People charged Brandon Allen Hayes and Jeffrey Carl Reed with several offenses related to the May 16, 2009 murder of Hayes's grandmother, Eunice Cothron. The People charged Hayes and Reed with murder (Pen. Code, § 187, subd. (a))[1] (count 1), first degree robbery (§§ 211, 212.5) (count 2), first degree burglary (§§ 459, 460) (count 3), and carjacking (§ 215, subd. (a)) (count 4). As to count 1, with respect to each defendant, the People alleged two special circumstances, namely that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)), and during the commission of a burglary (§ 190.2, subd. (a)(17)). In addition, as to counts 1, 2, 3, and 4, the People alleged that Hayes personally used a deadly weapon, within the meaning of section 12022, subdivision (b)(1). The information also alleged that on or about April 11, 2009, Hayes had unlawfully taken and driven Cothron's vehicle (Veh. Code, § 10851, subd. (a)) (count 6). Finally, the information alleged that Hayes had served two prior prison terms within the meaning of sections 667.5, subdivision (b) and 668, and that Reed had suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12.)

Because neither party in this family law case was completely forthcoming with respect to the amount of appellant's income, much of it apparently in cash received from appellant's retail liquor business, the family court determined the income available to appellant for child and spousal support purposes based on the court's estimate of the family's living expenses prior to separation and the fact that during the marriage appellant was the sole source of financial support for his family. The court's estimate of the family's living expenses is fully supported by the record, and given the record available, was a reasonable means of determining appellant's income.