CA Unpub Decisions

Defendant Kevin Montiel received a prison term of life with the possibility of parole after being found guilty of violating Penal Code section 220, subdivision (b) (section 220(b); all further statutory references are to the this code) with the finding a non-accomplice was present (§ 667.5, subd. (c)(21)). Section 220(b) imposes a life term on anyone “who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape . . . .” On appeal, defendant argues the trial court committed reversible error by not instructing the jury first degree burglary and assault with intent to commit rape are lesser included offenses of section 220(b). We agree the court so erred, but find the error harmless under the circumstances of this case. Therefore, we affirm the judgment.

Defendant Prospero Ramirez Guadarrama was convicted of multiple counts, including two special circumstances murders, relating to a gang shooting. During sentencing, the court indicated that it had no discretion except to sentence defendant to life without the possibility of parole on each murder count. Defendant argues that under Penal Code section 190.5, subdivision (b),[1] the court had the discretion to sentence him to 25 years to life instead. Because the court’s erroneous belief led to its sentencing decision, he argues he should be resentenced. The Attorney General agrees, as do we.
Defendant also argues that his sentence on one count of street terrorism
(§ 186.22, subd. (a)) must be stayed pursuant to section 654. Again the Attorney General concedes the point, and we concur. We therefore remand the matter for resentencing.

A jury convicted defendant Javier Bibo Flores of one count of sexual acts with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); all further statutory references are to this code), plus one count each of misdemeanor assault, battery (§§ 240, 242) and felony child abuse (§ 273a, subd. (a)). As to the latter charge, the jury also found true an allegation of great bodily injury (§ 12022.7, subd. (d)). The court sentenced defendant to 15 years to life. He contends the court erred by not instructing the jury as to the union of act and specific intent (CALCRIM No. 251) on the first count. Although the court should have given the instruction, considering the other instructions given, the error was harmless beyond a reasonable doubt. We therefore affirm the judgment.

K.K. (mother) appealed from a 2012 order terminating parental rights (Welf. & Inst. Code, § 366.26) to her three preschool-age children.[1] After reviewing the entire record, mother’s court-appointed appellate counsel informed this court he could find no arguable issues to raise on mother’s behalf. Counsel requested and this court granted leave for mother to personally file a letter setting forth a good cause showing that an arguable issue of reversible error did exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Mother has now submitted a letter in which she asks for reconsideration and expresses her love for her children.
Mother’s letter neither addresses the termination proceedings nor sets forth a good cause showing that any arguable issue of reversible error at the termination hearing does exist. (In re Phoenix H., supra, 47 Cal.4th at p. 844.) An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is up to an appellant to raise claims of reversible error or other defect and present argument and authority on each point made. If an appellant does not do so, the appeal should be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

The Court has read and considered the petition for writ of mandate/habeas corpus. We have invited the respondent court to file an informal response, but it has declined to do so. Accordingly, we will grant the petition.
Petitioner is an inmate in the custody of the California Department of Corrections and Rehabilitation. He filed a petition for writ of mandate in respondent court that raises issues relating to his criminal conviction. The respondent court required petitioner to pay a filing fee, directing the director of the California Department of Corrections and Rehabilitation to make deductions from petitioner’s inmate trust account until the filing fee of $410 is paid in full. Although even indigent inmates are required to make partial payments of filing fees in civil actions (Gov. Code, § 68635), petitioner in this instance is challenging certain aspects of his criminal conviction. A petition raising such issues is properly considered a habeas corpus proceeding for which no filing fees can be required. (Gov. Code, § 6101.) Thus, the respondent court erred in requiring petitioner to pay filing fees, even though petitioner called his petition one for mandate relief (cf. Bravo v. Cabell (1974) 11 Cal.3d 834).

Petitioner W.J. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s jurisdictional and dispositional orders as to her three children, and setting a Welfare and Institutions Code[1] section 366.26 hearing. Mother argues that: (1) her due process rights were violated when the juvenile court added an additional allegation after the conclusion of evidence; (2) her right to confront and cross-examine witnesses was violated when the juvenile court allowed minors’ counsel to question the children in chambers; and (3) the juvenile court erred in denying her reunification services pursuant to section 361.5. We reject these contentions and affirm the judgment.

Defendants and appellants, Justin Tyme Hayes, Derek Shane O’Brien, and Mark Anthony Wisler, are members or associates of the Coors Skins (Coors), a White supremacist gang. On an evening in November 2008, they, among others, beat a Hispanic man into a coma. Separate juries convicted them of attempted murder, active participation in a criminal street gang, and assault by means of force likely to cause great bodily injury. Each jury also found true allegations that defendants personally inflicted great bodily injury and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. Wisler’s jury found true the allegation that the attempted murder was premeditated and deliberate; Hayes’s jury and O’Brien’s jury found the same allegation not true. Hayes and O’Brien were each sentenced to prison for 22 years 8 months. Wisler was sentenced to a prison term of 21 years to life.

The trial court placed defendant Yosselin Bertacco on five years formal probation and ordered her to serve one year in county jail after a jury found her guilty of felony hit and run (Veh. Code, § 20001; unless otherwise designated, all statutory references that follow are to the Vehicle Code ), driving an unregistered motor vehicle (§ 4000, subd. (a)), and driving with a suspended license (§ 14601.1, subd. (a)).
On appeal, defendant contends (1) her conviction for felony hit and run is not supported by substantial evidence, (2) admission of evidence of her outstanding arrest warrant was error, (3) she is entitled to additional presentence custody credit, and (4) the booking fee was wrongfully imposed. As we will explain, defendant is entitled to additional presentence custody credit and the booking fee must be stricken. In all other respects, we affirm the judgment.

Lakesha H., prior caretaker, appeals from the order of the juvenile court removing siblings G. (age 4 years) and Genesis (age 26 months) from her custody (Welf. & Inst. Code, § 366.26, subd. (n))[1] and denying her modification petition to have the children returned to her care (§ 388). We conclude the evidence supports the court’s finding that removal of the children was in their best interest and return would not be in their best interest. Accordingly, we deny the petition.

Following a jury trial, defendant and appellant Ameen Ali Bryant was convicted in count 6 of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)),[1] with a finding that a principle was armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)). The jury was unable to reach verdicts on two counts of robbery (§ 211). In return for an agreed upon concurrent sentence of two years in state prison, defendant entered a plea of no contest to one count of robbery. The trial court, in compliance with the agreement, sentenced defendant to concurrent two-year terms in state prison and struck the armed allegation in count 6.
Defendant filed a timely notice of appeal, specifically stating his intent to challenge the conviction in count 6. This court appointed counsel to represent defendant on appeal. On March 27, 2013, appointed counsel filed a brief raising no issues and requesting this court to review the record independently for arguable appellate contentions pursuant to People v. Wende (1979) 25 Cal.3d 436.

Defendant and appellant Ronald Stewart Hix (defendant) appeals from the judgment entered following his guilty plea and conviction of driving a vehicle while having a blood alcohol level of .08 percent or higher, a misdemeanor in violation of Vehicle Code section 23152, subdivision (b). Defendant contends the trial court erred by denying his motion to suppress evidence. We disagree and affirm the judgment.

Defendant and appellant Roger Gutierrez entered a plea of no contest in October 2010 to a charge of second degree robbery (Pen. Code, § 211) and admitted the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). Pursuant to an agreed upon case disposition, imposition of sentence was suspended, and defendant was placed on formal probation for three years conditioned upon, among other things, service of one year in county jail.
Formal probation violation proceedings were commenced against defendant in 2012. Testimony at the formal probation violation hearing established that defendant ran upon seeing police officers. A loaded .22 caliber handgun was found in the area where defendant jumped over a fence. Defendant ran into a residence, without the permission of the resident, and refused to leave when requested. He was taken into custody in the residence.

Defendant and appellant Kevontre Lamont Halcromb was charged by information with second degree robbery in violation of Penal Code section 211. The information also alleged that appellant personally used a handgun, and that a principal in the robbery was armed with a handgun, within the meaning of Penal Code sections 12022.53, subdivision (b), and 12022, subdivision (a)(1), respectively.
A jury found appellant guilty of robbery, but found the gun allegations to be not true. Appellant was sentenced to the mid-term of three years in state prison. Appellant appeals his robbery conviction. Finding no error, we affirm.

Appellant Joshua Emmanuel Jones was charged with one count of grand theft (Pen. Code, § 487, subd. (a)),[1] one count of attempted grand theft (§§ 664/487) and five prior felony convictions within the meaning of section 1203, subdivision (e)(4). Appellant was charged with having committed a prior serious felony for the purpose of being committed to state prison, if convicted in the instant case. (§ 1170, subd. (h)(3).) He was charged pursuant to section 667.5, subdivision (b) with having committed two felonies and with not remaining free of prison custody during a period of five years subsequent to the conclusion of these terms. He was also charged pursuant to section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i), with one prior strike conviction.
A jury convicted appellant of attempted grand theft but deadlocked on the grand theft charge. The court declared a mistrial on this charge. The information was amended to allege a petty theft, a misdemeanor. Appellant entered a plea of nolo contendere to this charge.
In a bifurcated proceeding, the court found that appellant had committed a prior serious felony for purposes of section 1170, subdivision (h)(3). The court found true that appellant had suffered a prior strike conviction and that he had not remained free of custody during a period of five years after serving a term of conviction.
Appellant was sentenced to a term of four years in state prison for the attempted grand theft, composed of the high term of three years for attempted grand theft and one year under section 667.5, subdivision (b). Appellant was sentenced to a concurrent term of six months in county jail on the misdemeanor conviction.