CA Unpub Decisions

While investigating a vehicle burglary, officers approached and searched defendant Adam Aron Winders. Officers recovered a shot glass and a baggie, both containing methamphetamine, from defendants pocket. In another incident, officers pulled defendant over for driving a car without a rear license plate. A search of the vehicle unearthed a shotgun, ammunition, and a cache of various drugs. In yet a third incident, officers arrested defendant for failure to appear in court and discovered more drugs and drug paraphernalia.
An information charged defendant with possession of methamphetamine for sale stemming from the first incident. (Health & Saf. Code, 11378.) A second information charged defendant with unlawful taking of an automobile, possession of a firearm by a felon, and various drug offenses. (Veh. Code, 10851, subd. (a); Pen. Code, 12021, subd. (a)(1); Health & Saf. Code, 11350, subd. (a); Bus. & Prof. Code, 4140.) In a third information, defendant was charged with possession of methamphetamine and failure to appear while on bail. (Health & Saf. Code, 11377, subd. (a); Pen. Code, 1320.5.) All three informations alleged defendant had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant entered no contest pleas to three felony charges, and the trial court dismissed the remaining counts. The court sentenced defendant to four years four months in state prison. Defendant appeals, contending the courts sentence violates his Sixth Amendment right to a jury trial. The Attorney General urges us to dismiss the appeal, asserting defendant cannot challenge the constitutionality of his sentence without first obtaining a certificate of probable cause. Court consider the appeal and affirm the judgment.

Defendant Jason Learoy Robinson entered a plea of no contest to a charge that he unlawfully drove a 2001 Dodge truck with the intent to deprive the owner of lawful possession. (Veh. Code, 10851, subd. (a).) Following a contested hearing on the issue of victim restitution, defendant was ordered to pay the trucks owner $29,000 for the truck. He contends on appeal that the trial court used an inappropriate methodology to calculate the value of the truck. Court disagree and affirm the order.

The minor, A.Z., admitted in Butte County Juvenile Court he came within the provisions of Welfare and Institutions Code section 602 because he committed two counts of robbery (Pen. Code, 211) with an enhancement for personally using and discharging a firearm for each count (Pen. Code, 12022.53, subd. (c)). The matter was transferred to Sacramento County, and the minor was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (hereafter DJF) for up to 25 years, but not to exceed age 25. On appeal, the minor contends the juvenile court (1) failed to exercise its discretion in setting the maximum term of confinement because of a mistake regarding the relevant sentencing range, and (2) failed to fully exercise its discretion regarding the firearm enhancement. Court reject the contentions and affirm.

Following a contested jurisdictional hearing, the juvenile court sustained a petition under Welfare and Institutions Code section 602 alleging that Zachary F. had committed one count of felony vandalism (Pen. Code, 594, subds. (a), (b)(1)), one count of conspiracy to commit felony vandalism (Pen. Code, 182, subd. (a)(1), 594, subds. (a), (b)(1)), and one count of being in possession of an alcoholic beverage in a public place, a misdemeanor (Bus. & Prof. Code, 25662, subd. (a)). The minor was adjudged a ward of the court and granted probation.
The minor contends on appeal that the juvenile court failed to exercise its discretion to determine whether the vandalism counts were felonies or misdemeanors. The People concede the error. Court remand the matter for the juvenile court to make this determination.

Defendant Jerome Jackson pled no contest to assault with a deadly weapon and admitted an enhancement for personal infliction of great bodily injury under circumstances involving domestic violence. He admitted a prior serious felony conviction within the meaning of the three strikes law and was sentenced to a stipulated term of 15 years. The trial court ordered a $200 restitution fine, stayed a $200 restitution fine pending successful completion of parole, ordered victim restitution in the amount of $2,000, a $20 court security fee, a $208.43 booking fee, and a $24.09 classification fee, and awarded 442 days of custody credit (385 actual days, 57 good conduct days). Defendant was with his wife, Dana Dickson, and their three children. He and Dickson got into an argument over a vehicle he had given her. The argument escalated and defendant kicked Dickson in the lower back, causing her to fall down the stairs. The children witnessed this incident. The judgment is affirmed.

Defendant Scott Anthony Castillo pled guilty to carjacking (Pen. Code, 215, subd. (a)) and admitted he had personally used a dangerous or deadly weapon in the commission of the offense (Pen. Code, 12022, subd. (b)(2)), stemming from an incident in which defendant assaulted a taxicab driver with a knife and stole his cab. In exchange for defendants plea, the remaining counts and a prior prison term enhancement were dismissed and it was agreed defendant would be sentenced to state prison for a term of eight years. The trial court sentenced defendant in accord with the agreement.

Appellants Z.M. and Isaac C., the minors mother and father respectively, appeal from the juvenile courts orders denying the father a hearing on his request for modification and terminating parental rights. (Welf. & Inst. Code, 366.26, 388, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellants contend it was error for the juvenile court to deny the father a hearing on his modification request and that the court committed additional errors by finding the minor adoptable and failing to find an exception to adoption. Court affirm.

Andrea O., mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395 [further undesignated statutory references are to this code].) Appellant contends reversal is required because the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq. were not met. Court reverse.

Defendant Daniel Lee Gonzales, a maintenance man at a motor home park, stabbed David McBride, a resident at the park, with a knife in an unprovoked assault. Defendant then assaulted other victims, threatened to stab others, and fled from the scene. Pursuant to People v. West (1970) 3 Cal.3d 595, defendant entered a negotiated plea of guilty to three counts of assault by means of force likely to produce great bodily injury and two counts of making criminal threats. In connection with one of the assault offenses, defendant admitted he personally inflicted great bodily injury. He entered his pleas and admission in exchange for the dismissal of the remaining counts and allegations (with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 as to one of the counts for purposes of restitution only) and a stipulated prison sentence of 10 years four months the upper term of four years for one assault conviction plus a three year enhancement for infliction of great bodily injury and consecutive one third the middle terms on the remaining counts. The court sentenced him accordingly. The judgment is affirmed.

Michael C., father of the minor, appeals from orders terminating his parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the record does not reflect there was any inquiry as to his possible Indian heritage and reversal is required. Court reverse and remand with directions.

Ed Couvrette appeals the rulings of the family court: (i) ordering the transfer of funds from his 401(k) account to his former wife, Joanne Couvrette; (ii) increasing his spousal and child support obligations; and (iii) awarding attorney fees and sanctions. He contends that the court erred in ordering that funds in his 401(k) account be transferred to his former wife because the orders violated the automatic stay of judicial proceedings under the bankruptcy code; the 401(k) plan was not joined in the proceeding as required by Family Code[1]section 2060; and the orders were preempted by federal law. Ed also contends that the family court erred in increasing his support obligations because it did so based solely on an inadmissible hearsay declaration. Finally, Ed argues that the court violated his due process rights in imposing a $20,000 sanction against him, and improperly awarded his former wife $10,000 in attorney fees.
Court conclude that the court's orders which purported to authorize the transfer of funds from appellant's 401(k) were not "qualified domestic relations orders" as required under federal law, and are consequently invalid and unenforceable. We also determine that the family court improperly increased appellant's support obligations based on an inadmissible hearsay declaration, and that it improperly imposed the $20,000 sanction without first permitting Ed an opportunity to contest the basis for the sanction. Finally, Court reject appellant's attorney fee award challenge, concluding that appellant fails to demonstrate the requisite abuse of discretion.

Frank Marquez Rodriguez was convicted by a jury of discharging a firearm with gross negligence involving the personal infliction of great bodily injury on his girlfriend (Pen. Code, 246.3, 12022.7), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The trial court found true two prison prior convictions ( 667.5, subd. (b)). Rodriguez was sentenced to total term of eight years, which included an upper term of three years for discharging the firearm.
Rodriguez contends reversal is required because the trial court failed to instruct the jury his girlfriend was an accomplice, the court failed to orally instruct on the great bodily injury enhancement, there was insufficient evidence to support his conviction of discharging a firearm or the personal infliction of great bodily injury, and imposition of the upper term was improperly based on facts not found true by a jury or admitted by him. Court affirm in part and reverse in part.

Romes appeals and has filed a petition for writ of habeas corpus. He contends because his sentence did not comport with the plea bargains, the judgment should be reversed and the matter remanded to allow him to withdraw his guilty pleas. The People properly concede the point. (People v. Walker (1991) 54 Cal.3d 1013, 1024-26; People v. Renfro (2004) 125 Cal.App.4th 223, 233.)
The judgments of conviction are affirmed.

This case is before us upon transfer from the California Supreme Court with directions to vacate our decision and reconsider it in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In accordance with the direction of the Supreme Court, we have vacated and reconsidered our earlier decision, but we reach the same conclusions as before. As a consequence, the disposition on appeal remains unchanged.
Defendant Booker Ted Emmert appeals from judgment entered following jury convictions for attempted voluntary manslaughter (Pen. Code, 664, 192 subd. (a)), as a lesser offense to attempted murder, charged in count 1; shooting at an inhabited dwelling ( 246; count 2); and assault with a firearm ( 245, subd. (a)(2); count 3). As to all three counts, the jury also found true the personal gun use enhancement ( 12022.5, subd. (a)). The trial court sentenced defendant to a state prison term of 13 years.
Court affirm the judgment of conviction but reverse the sentence as to the gun-use enhancement appended to count 1, and remand this case to the superior court for resentencing, consistent with the requirements of Cunningham.