CA Unpub Decisions

A jury found Eduardo Rios Manila guilty of one count of committing a lewd act on a child under 14 against victim Jane Doe (Pen. Code, § 288, subd. (a); count 1), one count of committing a lewd act on a child under 14 against victim Janet Doe (§ 288, subd. (a); count 2), three counts of committing a lewd act on a child under 14 against victim Mary Doe (§ 288, subd. (a); counts 4-6), and three counts of committing a lewd act on a child of 14 or 15 against victim Mary Doe (§ 288, subd. (c)(1); counts 7-9). As to counts 1 and 2, the jury also found true allegations Manila committed lewd acts against multiple victims (§§ 667.61, subd. (b) & (e)).

Defendants Kaleem Moore and Mark Smith robbed a Walmart store during the overnight shift, holding three employees at gunpoint in the process. A jury found the defendants guilty of three counts of second degree robbery (Pen. Code, § 211), found true the allegation that each defendant personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)), and found them not guilty on three counts each of kidnapping to commit robbery (§ 209, subd. (b)(1)). The trial court sentenced each defendant to 23 years eight months in prison—seven years for the robbery convictions, and 16 years eight months for the firearm-use enhancements.

The successor Trustee of a Trust created by a Husband and Wife appeals from an order on the merits of a probate claim. At issue is whether the Husband's unilateral Revocation of the Trust applied only to his undivided share of the community property held in the Trust or to all of the community property held in the Trust. We conclude, as the probate court did, the Revocation applied to all of the community property held in the Trust. Consequently, we affirm the probate court's order.

APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed and remanded with directions.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Warren J. Williams, Deputy Attorneys General for Plaintiff and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Samuel Rodriguez of one count of making a criminal threat to his attending psychiatrist, Dr. S. (Pen. Code, § 422, subd. (a).) At the time of the threats, they were in the emergency department of the County Mental Health hospital (CMH), while Rodriguez being detained on a hold under Welfare and Institutions Code section 5150. The sole issue on appeal is whether the trial court committed reversible error in failing to instruct the jury on the affirmative defense of self-defense. We affirm.

While conducting an investigation, a police officer spotted defendant Luis Alberto Cruz. Defendant was then seen dropping a glass pipe. When the officer attempted to detain him, defendant refused to take his hand from his pocket. Defendant then pulled away and tried to run. When the officer tried to restrain him, defendant struggled and struck the officer in the head several times. Defendant was eventually restrained by multiple officers.

Defendant Edward Lee Sanderson, Sr., pleaded no contest to criminal threats (Pen. Code, § 422) and admitted a strike allegation (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Sentencing defendant on this and two unrelated cases, the trial court imposed an eight-year state prison term. (In a subsequent proceeding, the trial court ordered defendant to pay $12,911.36 in victim restitution for the cost of a security system.)
On appeal, defendant contends the restitution award was unauthorized because he was not convicted of a violent felony. Since the victim restitution was for the purchase of a security system for a place of business rather than a residence, defendant’s claim is without merit. In addition, relying on a recent decision from this court, we conclude conviction of a violent felony is not a prerequisite to victim restitution for the cost of a security system. We affirm the restitution order.

Defendant, Thomas Michael Dixon, appeals from a judgment entered after his guilty plea to second degree murder (Pen. Code, § 187, subd. (a)) with a firearm enhancement (§ 12022.5, subd. (a)) and stipulation to serve a prison sentence of 19 years to life. Defendant argues the recent amendment of section 3051 extending youthful offender parole hearings to individuals who committed the controlling offense at the age of 25 or younger, entitles him to remand to the trial court for the limited purpose of determining whether he has had an adequate opportunity to present evidence relevant to that parole hearing and to present such evidence if the court determines he did not. The People agree defendant is entitled to limited remand for these purposes.

Defendant Lavell Graves appeals from a judgment entered after a jury verdict finding him guilty of criminal threats (Pen. Code, § 422—counts one and two); witness intimidation (§ 136.1, subd. (c)(1)—counts three and four); assault with a semiautomatic firearm (§ 245, subd. (b)—counts five, six and seven); possession of a firearm by a felon (§ 29800, subd. (a)(1)—count eight); and unlawful brandishing of a firearm (§ 417, subd. (a)(2)—counts nine, ten and eleven). The jury also found true that defendant used a firearm in counts one through four (§ 12022, subd. (a)(1)) and that he had used a firearm in counts five through seven (§ 12022.5, subds. (a) & (d)).

A jury found defendant Bryan Scott Cook guilty of second degree murder for fatally stabbing the victim. At trial, defendant maintained that he had been caring for the victim—his friend of several decades, who was in poor health—when the victim twice stabbed himself, which led to defendant, “[w]ithout thinking,” stabbing the victim four more times. On appeal, defendant contends the trial court erred in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of murder. He argues substantial evidence obligated the instruction. We agree and will reverse.

Peter Jeremy Dirksen appeals from the judgment after he pled guilty to second degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (b)) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and admitted an allegation that he inflicted great bodily injury when he assaulted his victim (§ 12022.7, subd. (a)). Dirksen also admitted allegations that he suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and prior serious felony conviction (§ 667, subd. (a)), and that he served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to 23 years to life in state prison.
Dirksen suffocated a woman in a Port Hueneme motel. While awaiting trial on his murder charge, he hit his cell mate and fractured his cheekbone.

Appellant Joe Polk appeals the trial court’s denial of his request to strike Penal Code section 12022.53 firearm enhancements after remand for resentencing pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620). The trial court denied the request, concluding that the original sentence was appropriate. Appellant’s appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, requesting that this court conduct an independent review of the record. Having done so, we affirm the trial court’s order denying appellant’s request.

In this appeal from an order terminating parental rights, mother contends the juvenile court committed reversible error by failing to provide the notification required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California statutes (Welf. & Inst. Code, § 224 et seq.). We conclude that because the juvenile court had been advised of the child’s possible Apache or Choctaw ancestry, notice of the dependency proceedings should have been given to those tribes and to the Bureau of Indian Affairs (BIA). We therefore conditionally reverse the termination order and remand for compliance with ICWA’s notice requirements.

Michelle Dian Biel appeals the trial court’s order revoking probation and ordering execution of a previously suspended six-year prison sentence. In July 2015, appellant pled guilty to furnishing heroin (Health & Saf. Code, § 11352, subd. (a)) and admitted an allegation that she personally inflicted great bodily injury (GBI) upon the person to whom she furnished the drug (Pen. Code, § 12022.7, subd. (a)). She was placed on five years probation with terms and conditions including that she serve 365 days in county jail.