CA Unpub Decisions

Codefendants Lawrence Alvin Lovely and Rick D. Matthews victimized four employees of a rental store in south Sacramento. A jury convicted defendants of four counts of second degree robbery (Pen. Code, 211, 212.5, subd. (c)counts one, four, seven & ten)[1]in which they both personally used firearms ( 12022.53, subd. (b)); convicted both defendants of four counts of false imprisonment ( 236 counts two, five, eight & eleven) in which they both personally used firearms ( 12022.5, subd. (a)); convicted Lovely of assault with a firearm ( 245, subd. (a)(2) count three) in which he personally used a firearm ( 12022.5, subds. (a) & (d)); and convicted Matthews of three counts of assault with a firearm ( 245, subd. (a)(2) counts six, nine & twelve) in which he personally used a firearm ( 12022.5, subds. (a) & (d)). In a bifurcated proceeding, the trial court found that Lovely had sustained three prior serious felony convictions ( 667, subds. (a), (b)-(i), 1170.12), and that Matthews had sustained five prior serious felony convictions, three of which had been brought and tried separately. Defendants convictions are affirmed.

Defendant appeals. He contends (1) the trial court erred in permitting him to represent himself, (2) the prosecutor committed misconduct during closing argument and (3) imposition of the upper term contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Court affirm.

Defendant appeals from the judgment of conviction after a jury found him guilty of conspiracy to commit theft and willfully injure or destroy any object or thing of archaeological or historical interest or value (Pen. Code, 182, subd. (a)(1), 484, subd. (a), 622 1/2; count 1) and resisting an officer. ( 148, subd. (a)(1); count 3.) He was sentenced to a prison term of 16 months for conspiracy and a concurrent jail term of 60 days for resisting arrest.
On appeal he challenges the sufficiency of the evidence and claims prejudicial instructional error, evidentiary error, evasion of the statute of limitations, and cumulative error.
Court find no prejudicial or cumulative error and affirm the judgment.

Defendant Alvin Mitchell Johnson appeals from the trial courts choice of the principal term for sentencing purposes, arguing that because the trial court chose the last offense of which he was convicted as the principal term, he was unfairly denied credit for time served on the earlier offenses. Court conclude the trial court had no discretion in choosing the principal term, and Court affirm the judgment.

Peng Tan, Su Gao, Shi Jie Goa and Kun Xiu Yi (collectively Tan when appropriate) appeal a judgment that ordered specific performance of a real estate purchase and sale agreement in favor of Pacific Star Ventures, LLC and Zags 1, LLC (together Pacific Star when appropriate). Tan contends the trial court made numerous errors in ordering him to convey the property. Tan, however, did not post an undertaking to obtain a stay of the judgment, title to the property has been conveyed, and Tan has voluntarily accepted the benefits of the judgment. Thus, based on principles of waiver and mootness, we grant Pacific Star's motion to dismiss the appeal insofar as it concerns specific performance. Court deny the motion to dismiss insofar as it concerns attorney fees awards included in the judgment, but we affirm that portion of the judgment as Tan has shown no abuse of discretion.

A jury found Sandra Greenwood guilty of battery on a police officer with injury, resisting arrest, and being under the influence of a controlled substance. (Pen. Code, 243, subd. (c)(2), 148, subd. (a)(1); Health & Saf. Code, 11550, subd. (a).) The court sentenced Greenwood to three years of probation on the battery conviction and a 180 day concurrent jail term on the two remaining counts.
On appeal, Greenwood contends there was insufficient evidence to show the deputy sheriff was acting in the lawful performance of his duties, which is a necessary element to support the battery and resisting arrest convictions. Court reject this contention and affirm.

The trial court entered a judgment against appellant Fire Prevention Services, Inc. (FPSI) in the amount of $124,419.60. We conclude that FPSI has forfeited all of its claims on appeal by filing a wholly inadequate brief and record. Accordingly, Court affirm the judgment.

Joseph Todd Williams was charged with grand theft (Pen. Code, 487, subd. (a)), burglary (Pen. Code, 459), defrauding an innkeeper by nonpayment of more than $400 (Pen. Code 537, subd. (a)(2)) and the unlawful taking and driving of a vehicle (Veh. Code, 10851, subd. (a)). He pleaded guilty to all but the burglary charge in exchange for its dismissal. The court placed Williams on three years of formal probation, with a 365-day jail term (121 days total credits), required that he sign a Fourth Amendment waiver for warrantless searches of computers in his personal possession, and ordered him to pay restitution fines. Williams challenges the restrictions placed on his computer use as impermissibly broad and vague. He also complains that the court's clarification of the restrictions was not placed in the probation order. As to the latter issue, the Attorney General agrees the probation order modified to reflect the court's clarification.

Defendant Joel Kuechmann appeals from a judgment of conviction and sentence entered after a court trial. After Kuechmann waived trial by jury, the court found him guilty of multiple counts of forcible oral copulation and possession of a firearm by a felon, one count of forcible penetration by a foreign object, one count of robbery, and one count of dissuading a witness. The court also found true a number of enhancement allegations, as well as the allegations that Kuechmann had suffered five prior felony convictions and one prior serious or violent felony conviction, and that he had incurred one prior strike conviction. The court sentenced Kuechmann to a term of 206 years to life.
Court conclude that Kuechmann's first three arguments are without merit. However, the trial court's order that Kuechmann pay restitution in the amount of $800 to the Police Department must be stricken. In all other respects the judgment of the trial court is affirmed.

Seth R. entered a negotiated admission to three counts of assault with a deadly weapon (Pen. Code, 245, subd.(a)(1)), three allegations that these were hate crimes (Pen. Code, 422.75, subd. (b)), and one allegation that he personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a)). The juvenile court adjudged Seth a ward of the court. (Welf. & Inst. Code, 602.) Seth appeals the court's dispositional order committing him to the California Department of Corrections and Rehabilitation Juvenile Justice Division (JJD) formerly, the California Youth Authority (CYA) for 10 years. Seth contends that the court did not comply with the terms of the plea bargain. The order is affirmed.

Allison W., mother of minor daughter Mackenzie, appeals a juvenile court order granting Mackenzie's father Kenneth W.'s Welfare and Institutions Code section 388 petition to require Allison's visits with Mackenzie be supervised. Allison contends the court erred by granting the petition because there were no changed circumstances and supervised visitation was not in Mackenzie's best interests. Court affirm the order.

A jury convicted Rosa Galdames, Similiano Rojas Flores[1]and Elmer Rivas of kidnapping for ransom (Pen. Code, 209, subd. (a)), conspiring to kidnap for ransom (Pen. Code, 182, subd. (a)(1)) and false imprisonment by menace (Pen. Code, 236). Each was sentenced to life in prison. They appeal, claiming their pretrial motion to dismiss should have been granted, the evidence was insufficient to support the verdicts and jury misinstruction occurred. Court reject their contentions and affirm, while directing the trial court to correct an error in Rivass abstract of judgment.

A jury convicted defendant of two counts of attempted carjacking. (Pen. Code, 664, 215, subd. (a).)[1] In a bifurcated court trial, the court found true allegations that defendant suffered two prior serious felony convictions ( 667, subd. (a)), three prior strike convictions ( 667, subds. (c), (e)(2), 1170.12, subd. (c)(2)), and four prison priors ( 667.5, subd. (a)). The court struck one of the prior strike convictions and sentenced defendant to 35 years to life in prison.
Defendant makes the following contentions on appeal: (1) the evidence was insufficient to convict him of carjacking; (2) he was deprived of his right to confront a prosecution witness; (3) the prosecutor committed prejudicial misconduct, depriving him of a fair trial; and (4) the court erred in allowing a 15 year old witness to testify about why he was scared to testify. Court reject these contentions, and affirm.

On January 3, 2007, in a plea to the court pursuant to Penal Code section 1192.5, defendant, represented by counsel, pled guilty to a violation of section 496, subdivision (a) and section 148.9, subdivision (a), as charged in counts one and two of the information filed by the District Attorney of Riverside County.
Thereafter, and in accordance with the negotiated disposition, defendant was placed on a formal grant of probation for 36 months on condition he spend 55 days in local custody. The appropriate custody credits were awarded to defendant and defendants probation in case No. INM159239 was revoked and reinstated on the previous terms and conditions and also awarded the appropriate custody credits in that case. The judgment is affirmed.