CA Unpub Decisions

A jury found defendant guilty on five counts of selling cocaine base (Health & Saf. Code, 11352, subd. (a)) and one count of possession of cocaine base for the purpose of sale (Health & Saf. Code, 11351.5). Defendant admitted a prior drug conviction enhancement with respect to each count (Health & Saf. Code, 11370.2, subd. (a)), two 1-year prior prison term enhancements (Pen. Code, 667.5, subd. (b)), and one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12). As a result, defendant was sentenced to a total of 23 years 8 months in prison.Court find no prejudicial error. Hence, Court affirm.

Appellant Jasper M. (father) appeals from a Welfare and Institutions Code[1]section 366.26 order terminating parental rights to his daughter, Serena M. On appeal, father argues that the juvenile court failed to give him notice of the section 366.26 hearing, and that his trial counsel rendered ineffective assistance of counsel (IAC) when he failed to challenge erroneous information contained in a psychological evaluation report used to assess adoptability, failed to argue that the sibling bond relationship exception ( 366.26, subd. (c)(1)(E)) applied, and said father waived his attendance at the section 366.26 hearing. Court affirm the order.

Defendant Jose Juan Bravo Torres was convicted on June 27, 2006, after a jury trial, of kidnapping to commit an act of forcible sexual penetration (Pen. Code, 209, subd. (b)(1), count one);[1]kidnapping ( 207, subd. (a)(1), count two); an act of forcible sexual penetration ( 289, subd. (a)(1), count three); and commission of a lewd and lascivious act on a child 15 years old ( 288, subd. (c)(1), count four).[2] On July 25, 2006, the trial court announced it was sentencing defendant to prison for a term of life (with a minimum of seven years) on count one, a sentence of eight years on count three, and an additional consecutive sentence of eight months on count four, for a total determinate sentence of eight years eight months to run consecutively to count one.[3] The court stayed defendants sentence on count two pursuant to section 654, imposed a restitution fine, ordered defendant to register as a sex offender, and granted defendant applicable custody credits. The court further ordered the collection of blood, saliva, fingerprint, palmprint, and DNA samples.
On appeal, defendant contends and plaintiff concedes that the trial court should have dismissed his kidnapping conviction on count two. Defendant argues that count three must also be dismissed. Plaintiff replies instead that count three should be stayed pursuant to section 654. Defendant asserts, and plaintiff also concedes, that there was insufficient evidence to support his conviction in count four for commission of lewd and lascivious conduct. Defendant contends that the trial court violated his right to a jury trial in sentencing him to a consecutive term on counts one and three and to the upper term on count three.

Defendant Jose Juan Bravo Torres was convicted on June 27, 2006, after a jury trial, of kidnapping to commit an act of forcible sexual penetration (Pen. Code, 209, subd. (b)(1), count one);[1]kidnapping ( 207, subd. (a)(1), count two); an act of forcible sexual penetration ( 289, subd. (a)(1), count three); and commission of a lewd and lascivious act on a child 15 years old ( 288, subd. (c)(1), count four).[2] On July 25, 2006, the trial court announced it was sentencing defendant to prison for a term of life (with a minimum of seven years) on count one, a sentence of eight years on count three, and an additional consecutive sentence of eight months on count four, for a total determinate sentence of eight years eight months to run consecutively to count one. The court stayed defendants sentence on count two pursuant to section 654, imposed a restitution fine, ordered defendant to register as a sex offender, and granted defendant applicable custody credits. The court further ordered the collection of blood, saliva, fingerprint, palmprint, and DNA samples. Defendant contends that the trial court violated his right to a jury trial in sentencing him to a consecutive term on counts one and three and to the upper term on count three. The judgment is affirmed.

Following a jury trial, defendant Antonio Rodriguez Zaragoza was convicted of forcible rape (Pen. Code, 261, subd. (a)(2)),[1]sexual penetration ( 289, subd. (a)(1)), and first degree residential burglary ( 459, 460, subd. (a)). The jury found true that defendant committed the rape and sexual penetration during the commission of a first degree burglary and, therefore, in violation of the One Strike law ( 667.61). The trial court sentenced defendant to a total of 27 years to life in prison, consisting of a term of 25 years to life for the forcible-rape conviction and the mid-term of two years for the sexual-penetration conviction. A mid-term on the burglary conviction was imposed and stayed pursuant to section 654.
Defendant contends there is insufficient evidence to uphold the burglary and forcible rape convictions. He also contends that the trial court erred when it failed to instruct with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 225 and that his sentence imposed pursuant to section 667.61 is unconstitutional. Court disagree and affirm.

Antonio Lopez Gutierrez was convicted of misdemeanor assault (Pen. Code, 240) and misdemeanor battery ( 243, subd. (e)(1)). He appeals from a judgment that ordered him placed on informal probation for three years subject to conditions that included a term in local custody. Gutierrez argues he was denied a fair trial because the trial judge was not impartial. He also argues the assault conviction must be reversed because it is a necessary element of battery. Court agree only on the second point and so reverse the assault conviction.

Defendant Brian Dale Merritt was convicted of robbery and burglary, having fraudulently obtained cash from a department store. Defendant contends the evidence was insufficient to support his conviction for robbery because he did not leave the store with the cash before being stopped by the stores security personnel. Defendant temporarily prevented the security personnel from gaining possession of the cash through the use of force or fear; therefore, the robbery conviction was supported by substantial evidence. (People v. Pham (1993) 15 Cal.App.4th 61, 66-67 (Pham).) Defendants argument that the trial court erred by failing to instruct the jury on the lesser included offense of attempted robbery fails for the same reason. The judgment is modified.

Jacob P. and his younger brothers Preston P. and Jayden P. were taken into protective custody on November 16, 2005 when the police found Jacob, then seven years old, unattended at a store two blocks from his familys apartment. Jacob had a blue bruise under one eye. He told the police his father, Eric P. (Father), had given him the bruise. The police went to the apartment, where they found Preston and Jayden naked and their mother, Nicole P. (Mother), sleepy and disheveled in the middle of the day. The police asked Mother how Jacob received the bruise. When Mother blamed the family dog, Jacob interjected, no Mommy[,] Daddy did it. Court affirm the order terminating parental Fathers rights as to Jacob.

Alexa Nolder, the successor-in-interest to deceased plaintiff Leisa Lewis, challenges the superior courts denial of Lewiss petition to vacate an arbitration award in favor of defendants. Lewis claims that the arbitration award should have been vacated because the neutral arbitrator submitted an inaccurate disclosure and failed to disclose that his son had previously been employed as an attorney at the law firm that was representing defendants in the arbitration. court conclude that the neutral arbitrator was not required to disclose this information and that this information and the neutral arbitrators inaccurate disclosure (that no member of his family had ever been associated with an attorney for a party) did not create a basis for vacating the arbitration award. Hence, Court affirm the superior courts judgment confirming the arbitration award.

Appellant contends that the court "abused its discretion and violated [her] due process rights when it dismissed her attorney before obtaining a valid waiver of her right to counsel." She contends that the juvenile court's jurisdictional order adjudging her son James J. a dependent of the juvenile court lacked sufficient evidentiary support. As to the dispositional order, appellant contends that there was insufficient evidence for removal and that the order was an abuse of discretion. She also asserts a violation of the Indian Child Welfare Act. As explained below, court agree that the juvenile court failed to obtain a valid waiver of counsel.

Defendant appeals from judgment entered following jury convictions for second degree robbery (Pen. Code, S 211) and assault by means likely to produce great bodily injury (S 245, subd. (a)(1)). The trial court dismissed the great bodily injury allegations due to insufficient evidence. In a bifurcated trial, the trial court found true allegations that defendant had one prior strike conviction (SS 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)), one prior serious felony conviction (S 667, subd. (a)), and seven prison priors (S 667.5, subd. (b)). The court sentenced defendant to an aggregate prison term of 17 years.
Defendant contends the trial court committed reversible error when the judge and prosecutor told the jury the codefendants pleaded guilty to robbery in this case. Defendant also complains there was insufficient evidence identifying defendant as one of the perpetrators of the robbery, and the trial court erred in excluding evidence of the victim's prior misdemeanor conduct. Defendant further asserts that his sentence for assault (count 2) must be stayed under section 654; one prior prison term enhancement must be stricken because it is based on concurrent prison terms; the prior prison term enhancement that was stayed must be dismissed; and the upper term sentence on count 1 violates Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466, and therefore must be reduced to the middle term.
Court conclude there is no reversible error other than the following sentencing errors: (1) under section 654, the court erred in imposing concurrent sentences for robbery and assault because the two offenses were part of a continuing course of conduct; (2) one of defendant's prior prison term enhancements must be stricken because defendant was sentenced concurrently to two of the underlying prior prison offenses; and (3) the prior prison term which the trial court stayed must be dismissed because it is based on the same conviction used to impose a five year term for a serious felony prior.
Court affirm the judgment of conviction but remand this case to the superior court to correct the sentence as follows: The trial court is directed to (1) stay the prison term imposed for assault (count 2); (2) strike one of the one year terms for a prison prior (S 667.5, subd. (b)); and (3) dismiss the prison prior term which the trial court imposed and stayed

Defendant pled guilty to four counts of second degree robbery and admitted a firearm use enhancement in exchange for a stipulated sentence of 16 years in state prison and the dismissal of the remaining counts and enhancements charged in the information. 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.) Having undertaken an examination of the entire record, court find no arguable error that would result in a disposition more favorable to defendant.

Defendant pled guilty to possessing methamphetamine for sale. (Health & Saf. Code, S 11378.) Defendant was sentenced to prison for the agreed to term of two years. There is no certificate of probable cause in the record before this court.
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
Court concluded independent review of the record and find no arguable issues. The judgment is affirmed.

On July 30, 2002, a jury convicted defendant of five counts of forgery and, in a trial by court, the court found true an allegation of a prior strike conviction. On September 12, 2003, the court sentenced defendant to state prison for six years eight months count 1, four years (the middle term of two years doubled because of the strike); and counts 2 to 5, consecutive effective terms of eight months each (one third the middle term of two years each). Pursuant to section 296, subdivision (a)(1), the court ordered defendant to provide DNA samples.
Defendant appealed; however, he moved to abandon the appeal and on March 24, 2004, court dismissed the case. On October 18, 2004, defendant filed a pro se motion for modification of his sentence based upon defendant's belief that the three strikes law did "not fit [his] case" and that the court should have imposed the lower base term.
On February 4, 2005, the court modified defendants sentence, but not in the manner defendant had requested. The court recognized that it had not, but should have, doubled each of the consecutive four month terms. Consequently, defendant's sentence was increased by two and one half years. The court also reimposed the DNA testing requirement pursuant to section 296.
On appeal, defendant contends (1) the imposition of consecutive terms violated his rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and (2) the order that he provide a DNA sample violates the ex post facto clauses of the United States and California Constitutions. Court reject each contention.