CA Unpub Decisions

Appellant Aaron Johnson was convicted, following a jury trial, of one count of willful infliction of corporal injury in violation of Penal Code section 273.5, subdivision (a),[1]one count of felony false imprisonment in violation of section 236 and one count of misdemeanor assault in violation of section 240. The trial court found true the allegation that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b) and suffered a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. The trial court sentenced appellant to a total term of six years in state prison. Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his conviction for infliction of corporal injury and that if there is sufficient evidence for that conviction, his conviction for misdemeanor assault must be reversed because it is a lesser included offense of the corporal injury conviction. Appellant further contends that the fine imposed pursuant to section 1203.097 should be stricken because it only applies when a defendant is granted probation. Respondent agrees with the latter two contentions, and we agree as well. Court reverse the conviction for misdemeanor assault and order the section 1203.097 fine stricken. Court affirm the judgment of conviction in all other respects.

Selerino Perez appeals from the judgment entered following his conviction by a jury of cultivation of marijuana (Health & Saf. Code, 11358) and possession of marijuana for sale. (Id., 11359.) (CT 132-133) He was sentenced to prison for 16 months. Appellant contends that the evidence is insufficient to support his convictions. Court affirm.

Defendant and appellant Luis Bustamonte (defendant) and a fellow gang member engaged in a fistfight with another man (the victim) they encountered in their gangs territory. During the fight, defendant took a gold chain from the victim. When the fight ended, defendant and his companion fled the scene, and the victim began walking toward home. On his way home, the victim again encountered the two gang members. They shouted something to the victim, and then defendants companion fired a revolver at the victim, hitting him in the arm. A jury found defendant guilty of attempted premeditated murder and second degree robbery. Court therefore affirm the judgment.

Gloria Y. appeals from a juvenile court order terminating her parental rights to Isaac G. and A.G. (Welf. & Inst. Code, 366. 26.)[1] Appellant argues that Santa Barbara County Child Welfare Services (CWS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 USC 1901 et seq.). Court affirm on the ground that the ICWA notice defect was cured after the appeal was filed. (See e.g, Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867.) The Pascua Yaqui Tribe has confirmed that the children are not members of the tribe or eligible for membership in the tribe. The tribe's response to the ICWA notice is entitled to full faith and credit. ( 224.5.)

After the trial court denied his suppression motion, a jury convicted Pro David Mayes of possession of cocaine base and methamphetamine. (Health & Saf. Code, 11350, subd. (a), 11377, subd. (a).) The trial court found he had a strike and had served a prior prison term. The trial court struck the strike as too old, and sent defendant to prison for four years eight months. Defendant timely filed this appeal.
Defendant contends his suppression motion should have been granted, he was eligible for Proposition 36 treatment, one sentence should have been stayed, and his sentence violates the Sixth Amendment. Court affirm.

Defendant Travis Evans urges us to reverse his robbery conviction because the trial court instructed the jury in the language of CALCRIM No. 376 that only slight corroboration is necessary when the accused is found in possession of recently stolen property. The instruction, in defendants view, violates California case law, reduces the prosecutions burden of proof, and is tantamount to a directed verdict. Court disagree and affirm the judgment.

A jury convicted defendant of corporal injury to the mother of his child (Pen. Code, 273.5, subd. (a)), with the allegation of a prior conviction of the same (Pen. Code, 273.5, subd. (e)(2)), and forcible rape (Pen. Code, 261, subd. (a)(2)). Sentenced to seven years four months in prison, defendant appeals. He challenges a jury instruction that has been approved by the Supreme Court and contends that Penal Code section 654 prohibits sentences on both crimes because he had a single intent. Court affirm.

Defendant Ronald Lee Dymon appeals after entering a no contest plea. He asserts the trial court violated his right to jury trial by sentencing him to the upper term for failure to register as a sex offender. Court conclude the appeal must be dismissed because he did not obtain a certificate of probable cause.

Defendant Willie Brown appeals after a jury found him guilty of theft and resisting arrest. Defendant urges us to reverse his conviction, contending that prosecutorial misconduct violated his right to due process. Court disagree and affirm the judgment.

A jury convicted defendant Ezra Charles McDaniel, Sr., of second degree robbery (Pen. Code, 211)[1]and attempted second degree robbery ( 664 & 211). The trial court also found true three prior prison term allegations ( 667.5, subd. (b)), and sentenced defendant to an aggregate term of six years in state prison -- three years for the second degree robbery conviction and an additional one year for each prior prison term in Butte County case Nos. CM014925, CM002129, and 100257. The court further sentenced defendant to a concurrent eight month term for the attempted robbery conviction.
On appeal, this court merely considers whether a reasonable trier of fact could have found that the prosecution had proved the enhancements beyond a reasonable doubt. In doing so, it views the record in the light most favorable to the finding below. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)Accordingly, the enhancement finding is supported by substantial evidence. The trial courts judgment is affirmed.

After separating from John S. MacDonald, her husband of 22 years, Candace A. MacDonald withdrew approximately $25,000 from two bank accounts held in the name of the couple's children and, after placing the money in an account held in her name, paid over $30,000 toward the children's college related expenses. John appeals the trial court's ruling that Candace was not required to reimburse the community for the monies withdrawn from the two accounts prior to equalization of the marital estate. Court find no error in the trial court's ruling, and affirm the judgment.

Steve Hughes appeals from the trial court's decision granting summary judgment in favor of FrontRange Solutions USA, Inc. and FrontRange Solutions, Inc. (collectively FrontRange) in Hughes's lawsuit alleging that FrontRange sent him unsolicited facsimiles in violation of the federal Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. (the TCPA) and Business and Professions Code section 17200 et seq. Court conclude that FrontRange carried its burden to establish that Hughes cannot prove that it was a sender of unsolicited facsimiles, and accordingly Court affirm the trial court.

Thomas M. appeals orders in which the juvenile court terminated jurisdiction over the dependency of his three children, Alexandria M., Jordan M. and Brook M.; set a custody schedule between him and the children's mother, Tammy M.; and ordered child support suspended permanently. He contends the court exceeded its authority by rejecting the parents' settlement agreement regarding custody and visitation because there was no evidence that continued dependency supervision was necessary; the custody schedule promotes confusion and instability; the court erred in suspending child support payments; and it showed bias against him. Court hold the court abused its discretion by not accepting the settlement agreement and by terminating child support. Court make no determination regarding the quality of the custody schedule and Thomas's contentions of bias. Court affirm the order terminating juvenile dependency jurisdiction, reverse the orders regarding custody, visitation and child support and remand the matter to the family court to determine these issues.

jury convicted Trent Graddy of rape (Pen. Code,[1] 261, subd. (a)(2)), oral copulation ( 288a, subd. (c)(2)), sexual battery ( 243.4, subd. (a)), and committing a lewd act with a minor ( 288, subd. (c)(1)). The jury also returned aggravated kidnapping findings under the "One Strike" sentencing law with respect to the rape and oral copulation convictions ( 667.61, subd. (d)(2)). The jury acquitted Graddy of a separate count of kidnapping with intent to commit rape or oral copulation ( 209, subd. (b)(1)). In accordance with the One Strike law, the trial court sentenced Graddy to 37 years to life in prison. Court agree that the One Strike sentencing enhancements must be stricken based on instructional error that relieved the prosecution of its constitutionally imposed burden of proving each element of the One Strike enhancements beyond a reasonable doubt. For Graddy to be imprisoned for life under the One Strike law, the jury was required to find, among other things, that he "kidnapped" the victim of his crimes as that term is defined by law. ( 667.61, subd. (d)(2).) The trial court's instructional error, coupled with the jury's acquittal of Graddy on the kidnapping count for which it was properly instructed, leaves significant doubt as to whether the jury did so here. Consequently the trial court's instructional error cannot be deemed "harmless," and Court are required to strike the One Strike enhancements.