CA Unpub Decisions

Aracley Lopez and Carl F. Hamilton appeal their convictions by plea for identity theft (Pen. Code, 530.5, subd. (a))[1]and receiving stolen property ( 496, subd. (a)), entered after the trial court denied their motions to suppress evidence ( 1538.5). Lopez also pled guilty to possession of a forged driver's license ( 470b) and was sentenced to three years state prison. Hamilton received a two year state prison sentence. Court affirm.

The minor Lidia M. appeals from the juvenile courts order of wardship after finding she attempting to dissuade a victim or witness from reporting a crime or giving testimony at trial or other authorized legal proceeding. (Welf. & Inst. Code, 602; Pen. Code, 136.1, subd. (c)(1).) The minor contends the evidence is insufficient to support the finding. Court affirm the order as modified.

Following a jury trial, appellant Actor Lance Jones was convicted of drug possession and sales. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief, and has not done so.
Applying the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we find substantial evidence to support appellants conviction. Having reviewed the entire record, we are satisfied that appellants attorney has fully complied with his responsibilities, and no arguable issues exist. (Smithv. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed.

Ryan Antonio[1]Reed appeals from the judgment entered following an order revoking his probation and imposing a two year state prison sentence as a result of his earlier no contest plea to committing identity theft. According to the Probation Officers Report, Reed and a confederate used a stolen check and false identification to purchase items at a department store in January 2005. Reed was charged by felony complaint with committing identity theft and second degree burglary (Pen. Code, 530.5, subd. (a), 459). Pursuant to a negotiated agreement, Reed pleaded no contest on February 10, 2005 to committing identity theft. Imposition of sentence was suspended, and Reed was placed on three years of formal probation on condition that he serve 90 days in county jail and complete 10 days of work for the California Department of Transportation (Caltrans). The remaining count was dismissed on the Peoples motion. The judgment is affirmed.

Two armed men wearing black ski masks went into a residence and terrorized the occupants, tying them up, robbing them, and raping the woman. An information charged defendant Joseph Kelly Gore with home burglary, home invasion robbery, forcible rape, forcible digital penetration, and vehicle theft. (Pen. Code, 459, 211/212.5, subd. (a), 261, subd. (a)(2), & 289, subd. (a)(1); Veh. Code, 10851, subd. (a).) A jury found defendant guilty of all counts. Sentenced to a determinate term of 40 years and an indeterminate term of 283 years to life, defendant appeals, contending the trial court erred in refusing to allow him to cross-examine a witness about promises made in exchange for testimony; a witnesss statement about defendants prior prison term violated defendants right to a fair trial; there was instructional error concerning accomplice testimony; and the court committed sentencing error. In an earlier opinion Court affirmed the judgment.

Although he probably did not think so at the time, November 3, 2002, turned out to be a very bad day for defendant Angel Morales, Jr. After stabbing a person he believed to be a rival gang member, defendant raped a 14-year-old girl at his sisters apartment. Ultimately, defendant pled no contest to assault with a deadly weapon (with a gang enhancement) for the stabbing and received probation, with execution of an eight-year prison sentence suspended but with two years in jail as a condition of probation. While he was still in jail on the assault case, a jury found him guilty of rape. As a result, the trial court revoked defendants probation in the assault case and imposed the upper term of eight years on the rape to run consecutively with the eight-year sentence on the assault, leaving defendant with an aggregate term of 16 years in prison.
On appeal in the rape case, defendant contends the trial court erred in instructing the jury with CALJIC No. 2.28 based on his belated disclosure of his sister as a witness. He also contends the trial court abused its discretion in admitting evidence of the rape victims deteriorating academic performance and evidence that his assault conviction was gang related. Finally, he contends the trial court violated his constitutional rights by imposing the upper term for the rape. On appeal in the assault case, defendant contends he did not receive proper notice of the proposed revocation of his probation nor a proper hearing. He also complains that counsel was not formally appointed for him with respect to the probation revocation and the revocation of his probation was not supported by the evidence. Finding no prejudicial error in either case, Court affirm the judgment.

This is the second time this court has confronted the same issue in this case. In 2004, defendant first raised the constitutional violation based on the newly decided opinion in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. In October 2005, Court disagreed with defendants position and issued an opinion affirming the judgment based on People v. Black (2005) 35 Cal.4th 1238, 1244, 1254 (Black I). (People v. Brumbaugh (Oct. 31, 2005, C047490) [nonpub. opn.].) Our state Supreme Court denied defendants petition for review. (Jan. 18, 2006, S139404.) Defendant then filed a petition for writ of certiorari in the United States Supreme Court (docket No. 05 10477). The United States Supreme Court subsequently decided Cunningham, supra, 549 U.S. [166 L.Ed.2d 856] in January of 2007, rejecting the state Supreme Courts reasoning in Black I. The United States Supreme Court granted defendants petition, vacated the judgment of this court, and remanded the cause to us for further consideration in light of Cunningham. The parties provided supplemental briefing, including a response to questions posed by the court.
Court agree with defendants contention and remand to the trial court for resentencing consistent with the California Supreme Courts decision in People v. Sandoval (2007)41 Cal.4th 825(Sandoval).

A jury found defendant Melvin Eugene Williams guilty of first degree robbery (Pen. Code, 211)[1]and assault with a firearm ( 245, subd. (a)(2)), and found firearm use enhancements ( 12022.5, subd. (a)(1), 12022.53, subd. (b)), to be true with respect to each count. After the trial court found that he had sustained a prior strike felony conviction, it imposed an aggregate state prison sentence of 30 years four months.
Seeking reversal, defendant claims that the trial court erred in denying his motion to suppress evidence, improperly denied him a reasonable continuance upon granting his motions for self-representation, and committed various sentencing errors. Except for a minor custody credit claim, we find none of his contentions meritorious and shall affirm the judgment.

Defendants Gregorio Ortega Mendoza, Pedro Morfin Alonso and Esteban Gaspar Hurtado were convicted after a jury trial of one count of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a) count one) and one count of possession of methamphetamine for sale ( 11378 count two). The jury also found true an enhancement allegation that the amount of methamphetamine exceeded one kilogram ( 11370.4, subd. (b)(1)). Defendant Gaspar Hurtado was also convicted of a second count of possession of methamphetamine for sale ( 11378 count three) and the jury found true an enhancement allegation as to him that the amount exceeded four kilograms ( 11370.4, subd. (b)(2)).
The court sentenced defendant Gaspar-Hurtado to nine years in state prison: the upper term of four years on count one, plus a consecutive term of five years for the one-kilogram enhancement ( 11370.4, subd. (b)(1)). Punishment for counts two and three were stayed.
Only the contentions that the trial court erred in imposing laboratory analysis and drug program fees on stayed counts and that, as to defendant Gaspar Hurtado, the trial court erred under Cunningham have merit. Court modify the judgments to remove the unwarranted fees and, as modified, affirm them, except as to defendant Gaspar Hurtados judgment, Court also remand for resentencing.

Following a tumultuous history of family strife, defendant Zachariah Joseph Farrell shot and killed his father Bernard Farrell as he emerged from his residence. Defendant claimed that his father came out of his trailer firing his rifle before defendant felled him with a shotgun blast. The jury convicted defendant of second degree murder (Pen. Code, 189)[1]and found true enhancements for infliction of great bodily injury with a firearm ( 12022.53, subd. (d)), and use of a firearm ( 12022.5, subd. (a)).
Following the verdict, defendant made a motion for new trial based on ineffective assistance of counsel. The moving papers revealed that defense counsel had overlooked a crucial Department of Justice laboratory report that contained findings supporting defendants version of the shooting and lent credence to his claims of perfect and imperfect self defense. Court therefore reverse the judgment.

jury found defendant Andrew Matthew Berridge guilty of attempted murder of a peace officer, convicted felon in possession of a firearm, and possession of a short-barreled shotgun. In connection with the attempted murder, the jury found that defendant personally used a firearm and that the victim was a peace officer engaged in the performance of his duties. In bifurcated proceedings, defendant admitted a prior prison term, a strike prior, and a violent felony conviction within 10 years of a prior prison term for a violent felony.
Sentenced to state prison, defendant appeals, contending: (1) he received ineffective assistance of counsel in that counsel stipulated that the victim was engaged in the performance of his duties; and (2) the jury instructions given violated his federal constitutional right to due process. Court reject defendants claims.

A jury found defendant John David Maestas guilty of assault with a deadly weapon or with force likely to produce great bodily injury and found true the special allegation that he personally inflicted great bodily injury and used a deadly weapon during the commission of the crime. His motion for new trial based on newly discovered evidence was denied, and the trial court sentenced him to an aggregate term of three years in state prison. On appeal, defendant contends the trial courts denial of his motion for new trial was an abuse of discretion. Court affirm the judgment.

A jury convicted defendant of assault with a deadly weapon, to wit, a bottle. (Pen. Code, 245, subd. (a)(1).) In bifurcated proceedings, the court found a strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) and a prior serious felony (Pen. Code, 667, subd. (a)(1)) to be true.

The court sentenced defendant to state prison for an aggregate term of 11 years, that is, the midterm of three years for the assault offense, doubled for the strike prior, plus a five-year enhancement for the prior felony.
Defendant appeals.
Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

A jury convicted defendant Raymond J. Santos, Jr., of one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), and one count of possessing a billy, a prohibited weapon (Pen. Code, 12020, subd, (a)). The trial court also found true allegations defendant had a prior strike, and sentenced him to an aggregate prison term of 18 years. On appeal, defendant contends the trial court undercalculated the amount of pretrial custody credit to which he was entitled.The People concede the error. Court agree that the court miscalculated his custody credit, modify the judgment, and affirm the judgment as modified.