CA Unpub Decisions

Jeremy Jones and Alonzo Perkins were convicted of one count each of murder, attempted murder, robbery and felon in possession of a firearm with certain personal use allegations found true. In Joness appeal, he claimed errors in the trial courts denial of his motions for self-representation, exclusion of evidence and sentencing, citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Perkinss appeal challenged the trial courts denial of his motion to suppress the surviving victims identification of him as well as the courts evidentiary and sentencing decisions. In 2005, Court affirmed as to both Jones and Perkins.
Our Supreme Court denied Joness petition for review, but the United States Supreme Court granted his petition for writ of certiorari, vacated our opinion and remanded the matter back to us for reconsideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). Perkins apparently did not seek further review. Upon reconsideration of the Blakely issue as to Jones following Cunningham, Court nevertheless affirm.

Appellants Jennifer and Matthew Fletcher were found guilty, following a jury trial, of one count of first degree murder in violation of Penal Code section 187,[1]subdivision (a). The jury found true the special circumstances allegations that the murder was committed while lying in wait and for financial gain within the meaning of section 190.2, subdivisions (a)(1) and (a)(15). The jury also convicted the two of conspiracy to commit murder and various insurance fraud offenses. These convictions all arose from the murder of Jennifer's then husband, Joel Shanbrom. The jury also convicted Matthew of one count of bigamy in violation of section 281, subdivision (b)(3). Both appellants were sentenced to life in prison without the possibility of parole. Appellants now appeal from the judgments of conviction. Court affirm those judgments.

Canyon Theatre Guild filed a lawsuit against Brian Elroy, the general contractor employed to remodel its property. Because defendant failed to comply with discovery requests, issue sanctions were entered. The court later entered judgment based on the stipulation of the parties. Defendant now appeals the issue sanctions, the striking of his cross complaint, denial of a continuance and the stipulated judgment. Court affirm.

Appellant challenges the trial courts finding that he violated the terms of his probation, asserting the finding was not supported by substantial evidence because there were conflicts in the testimony. Appellant also contends the trial court abused its discretion in sentencing him without a more recent supplemental probation report, and in sentencing him to prison, rather than reinstating his probation. Appellant claims his sentence violated his right to a jury trial under the United States Constitution, because in choosing to impose the upper term, the court relied on four prior convictions which had not been found true by a jury or admitted by appellant. Finally, he requests a review of the in camera hearing on his Pitchess motion.
Our review of the record reveals substantial evidence to support the trial courts probation violation finding. Court conclude the probation report was sufficiently recent, and no prejudice has been shown. Appellant forfeited his challenge to the trial courts discretionary sentencing choices by failing to object below, and he was not entitled to a jury trial as to his prior convictions. Court have reviewed the in camera Pitchess hearing, and conclude the trial court properly exercised its discretion. Thus, Court reject appellants contentions and affirm the judgment.

A jury found defendant Keith Dwayne Pye guilty of carjacking (Pen. Code, 215, subd. (a))[1]and evading a pursuing peace officer by driving with a willful or wanton disregard for the safety of persons or property (Veh. Code, 2800.2, subd. (a)). Defendant waived his constitutional trial rights (including the right to a jury trial) and admitted serving a single prison term for two prior felony convictions alleged pursuant to section 667.5, subdivision (b). The trial court sentenced defendant to a prison term of 10 years 8 months, consisting of the upper term of 9 years for the carjacking conviction, plus a consecutive 8-month term for the Vehicle Code violation (one-third of the middle term), plus one year for the prior prison term enhancement. In his timely appeal, defendant contends the trial court violated his state and federal constitutional right to a fair and impartial jury by refusing to grant his Batson/Wheeler motions[2]and violated his Sixth Amendment jury trial right by imposing the upper term for the carjacking conviction without a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S., [127 S.Ct. 856] and Blakely v. Washington (2004) 542 U.S. 296, 301. Court disagree with defendants contentions and affirm.

Appellant Nathan Tolliver III was convicted of two counts of resisting an executive officer (Pen. Code, 69) and one count of evading an officer with willful disregard for safety (Veh. Code, 2800.2, subd. (a)). He was sentenced to the upper term on each count. He appeals his conviction on the ground that the court improperly excluded evidence that would have supported his necessity defense. He also argues that his sentence violates the Sixth Amendment to the United States Constitution under Cunningham v. California (2007) U.S. (127 S.Ct. 856] (Cunningham). Court affirm the judgment.

Julius Brown was charged with three counts of attempted premeditated murder, three counts of making a terrorist threat, and one count of assault with a deadly weapon. It was further alleged that a juvenile petition had previously been sustained against defendant within the meaning of the Three Strikes law. The charges arose from an incident that occurred in Los Angeles on January 28, 2006, when defendant approached the occupants of a Ford Thunderbird and threatened one of them with a box cutter, approached the Thunderbird again several minutes later and waved a gun at the occupants, threatening to kill them, and approached the Thunderbird a third time several minutes later when the occupants were on the street, driving his own car into three of them.
Court have examined the entire record and are satisfied that appellate counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; People v. Wende, supra, 25 Cal.3d at p. 441.)

A jury convicted defendant Jerome Cruz of mayhem and assault with a deadly weapon by a state prisoner (Pen. Code, 203, 205, 4501),[1]and he admitted having served a prior prison term ( 667.5, subd. (b)). Defendant was sentenced to nine years in state prison.

In a previous appeal, defendant contended that the lack of an adequate record for an independent review of the trial courts denial of defendants Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) deprived him of his right to meaningful appellate review. We remanded the matter to allow the California Department of Corrections and Rehabilitation (hereafter the Department) to attempt to reconstruct the records and to permit the trial court to re hold the Pitchess hearing.
Following the hearing on remand, defendant appealed. He contends the records were not adequately reconstructed at the new hearing. He also requests this court conduct an independent review of the trial courts denial of his Pitchess motion at the new hearing. Court affirm.

In July 2000, minor Dave H., then age 15, admitted committing a lewd and lascivious act with his eight-year-old niece, T. (Pen. Code, 288, subd. (a).) He was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF; formerly the California Youth Authority), until his 21st birthday (February 2, 2006).
In October 2005, a petition for extended commitment was filed alleging that, due to a mental deficiency, disorder or abnormality that causes serious difficulty controlling dangerous behavior, the minor would be dangerous to the public if discharged from DJF. (Welf. & Inst. Code, 1800 et seq., Extended Detention Act (EDA); undesignated statutory references are to the Welfare and Institutions Code.) The judgment is affirmed.

A jury convicted defendant Casanova Claybrooks of three counts of unlawful sex with a minor more than three years younger than defendant (Pen. Code, 261.5, subd. (c)) and four counts of lewd and lascivious acts with a child under 14. ( 288, subd. (a).) Defendant appeals his convictions on the four counts of lewd acts with a child under 14. ( 288, subd. (a).) He contends the trial court abused its discretion in denying his motion for a mistrial after a witness testified defendant had choked one of the victims. Court disagree. Court have, however, noticed an error which requires remand for resentencing.

Defendant Jason Sean Morgan was convicted, after a jury trial, of two counts of a lewd act upon a child aged 14 or 15 by a person at least 10 years older (Pen. Code, 288, subd. (c)(1)), two counts of oral copulation with a child under age 16 ( 288a, subd. (b)(2)), and two counts of sexual penetration with a child under age 16 by a person older than 21 ( 289, subd. (i)). Sentenced to six years four months in state prison, defendant appeals. He contends that the trial court erred in denying a continuance, in admitting evidence of a prior offense, and in imposing an upper base term and consecutive sentences. He also contends he was denied the effective assistance of counsel. Court affirm the judgment.

A jury found defendant John Romeo Huitt-Lopez guilty of first degree burglary and possession of a controlled substance, to wit, hydrocodone.
Granted probation, defendant appeals, claiming that the probation condition pertaining to his association with drug users and being in places where narcotics are present is overly broad. Court modify the condition.

Defendant Quinn David Fallon, Sr., pled guilty to one count of inflicting corporal injury upon a cohabitant (Pen. Code, 273.5, subd. (a)) and was placed on three years formal probation on the condition, among others, that he [t]otally refrain from the use . . . of any alcoholic beverages . . . . The plea was made incident to a Harvey[1]waiver, whereby defendant stipulated that the sentencing judge [could] consider [his] prior criminal history . . . when . . . imposing sentence. Thereafter, defendant admitted violating the terms and conditions of his probation by testing positive for alcohol on two separate occasions. The trial court refused to reinstate defendants probation and sentenced him to the upper term of four years in state prison.
On appeal, defendant contends the imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

Jennifer M. (appellant), the mother of Nathan M. (the minor), appeals from an order of the juvenile court declaring the minor a dependent child and removing him from appellants care. (Welf. & Inst. Code, 300, subd. (b), 358, 360.) She contends there was insufficient evidence to support the juvenile courts finding that the minor came within the provisions of section 300, subdivision (b), and that the court erred when it failed to return the minor to her care. Court affirm the juvenile courts orders.