CA Unpub Decisions

James Earl Payne was convicted of four counts of second degree robbery, two counts of second degree attempted robbery and one count of being an ex-felon in possession of a firearm. It was found true as to one count of robbery that Payne discharged a firearm within the meaning of Penal Code[1]section 12022.53, subdivision (c), and that as to the remaining counts of robbery and attempted robbery, he used a firearm within the meaning of section 12022.53, subdivision (b). It was also found true he suffered five prior "strike" convictions within the meaning of section 667, subdivisions (b) through (i), and one prior conviction within the meaning of section 667, subdivision (a)(1). Payne was sentenced to a determinate prison term of 100 years and a consecutive indeterminate term of 153 years to life. He appeals, arguing the trial court abused its discretion in denying his motion for a live lineup and erred in imposing consecutive sentences. The judgment is affirmed.

James M. Estrada entered a negotiated guilty plea to failing to register as a sex offender (Pen. Code,[1] 290, subd. (g)(2)) and admitted a strike ( 667, subds. (b)-(i), 1170.12, 668). The court sentenced him to prison for two years eight months (twice the lower term). Estrada appeals. Court affirm.

Nancy J. appeals a judgment of the juvenile court terminating her parental rights to her minor children Alexis J. and Arturo J. (together the minors) under Welfare and Institutions Code section 366.26.[1] Nancy contends that the court erred by summarily denying her section 388 petition for modification, in which she sought to have the court vacate the selection and implementation hearing and order six more months of services, or return the minors to her custody. She also challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Court affirm the judgment.

This is an appeal by Timothy G., the father of then six-year-old S. and stepfather of then 12-year-old M. (hereafter referred to as father), and Gina G., the mother of both girls (hereafter referred to as mother), from the trial courts March 23, 2006, disposition on Welfare and Institutions Code section 300[1]petitions filed with respect to each girl in January 2006 after M. disclosed, among other things, that father made her lay nude on the living room floor while he watched television, and then made her fold laundry nude, purportedly to punish M. for misbehaving. After the San Bernardino County Department of Childrens Services (hereafter DCS) removed both girls from the custody of mother and father and placed them in foster care, S. reported that father had molested her. DCS filed a subsequent petition under section 342 with respect to S., and mother and father appeal from the dispositions on the original and subsequent petitions. Father also challenges the trial courts October 2006 postdisposition findings at the six-month review hearing that DCS had provided reasonable reunification services to father, and that returning S. to fathers custody posed a substantial risk of detriment to the child. Court conclude that mothers and fathers contentions, which Court set out in detail below, are meritless. Therefore, Court affirm the dispositions and the postjudgment order.

Defendant Michael Jason Stanford appeals his conviction for second degree murder with a firearm enhancement. Defendant contends the trial court abused its discretion by excluding expert testimony, thereby denying his right to present his self defense theory based on a panicked response. He also argues the trial court erroneously imposed a consecutive enhancement of 25 years to life to his sentence under Penal Code section 12022.53, subdivision (d). The judgment is affirmed.

Mothers appeal challenges the juvenile courts order removing her daughter, M., from a paternal aunt and changing her placement to a prospective adoptive home. Mother also raises the issue of inadequate ICWA notice (Indian Child Welfare Act, 25 U.S.C., 1901 et seq.), which respondent concedes. Court affirm with directions to comply with ICWA.

A jury found defendant guilty of felony possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)) (count 1); felony transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)) (count 2); misdemeanor possession of 28.5 grams or less of marijuana (Health & Saf. Code, 11357, subd. (b)) (count 3); misdemeanor being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)) (count 4); and misdemeanor driving with a suspended or revoked drivers license (Veh. Code, 14601.1, subd. (a)) (count 5). Defendant thereafter admitted that he had suffered five prior serious and/or violent felony strike convictions within the meaning of Penal Code sections 667, subdivisions (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(A). As a result, defendant was sentenced to a total term of 25 years to life in state prison as follows: 25 years to life on count 1, stayed pursuant to Penal Code section 654; 25 years to life on count 2; and concurrent custody time for the misdemeanor convictions.
On appeal, defendant contends (1) we must reverse his admissions of the prior conviction allegations because the trial court did not fully advise him of the constitutional rights he would be waiving by his admissions, and therefore those admissions were not knowing and voluntary; and (2) his 25 years to life sentence constitutes cruel and unusual punishment under the federal and state Constitutions. For the reasons set forth below, Court affirm the judgment.

Tonya Jean Schmidt appeals her conviction for possession of methamphetamine for sale. She contends that errors in the admission of evidence, an instance of prosecutorial misconduct and ineffective assistance of counsel cumulatively, if not individually, require reversal of her conviction. Court affirm the judgment.

Pursuant to a plea agreement, defendant pleaded guilty to possession of a controlled substance, methamphetamine (Health & Saf. Code, 11377, subd. (a)) and admitted that he had sustained two prior prison terms (Pen. Code, 667.5, subd. (b)) and purportedly a prior strike conviction (Pen. Code, 667, subd. (c)(e)(1), 1170.12, subd. (c)(1)). In return, the remaining allegation was dismissed, and defendant was promised a sentencing lid of four years. Following a sentencing hearing, defendant was sentenced to a total term of four years in state prison: the midterm of two years doubled to four due to the prior strike allegation.Defendant appealed, and his appointed appellate counsel 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 that this court undertake a review of the entire record. The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.

Brian K. appeals from a judgment declaring him a ward of the juvenile court and committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA).
Defendant contends that the juvenile court erroneously determined that his theoretical maximum term of physical confinement was 10 years 10 months.[2] Relying on Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (hereafter Cunningham), defendant contends that the juvenile court erroneously computed the theoretical maximum term by using the upper term of six years for the base term. He also contends the juvenile court did not expressly exercise its discretion under section 731, subdivision (b), by imposing the upper term. Accordingly, the trial court did not err in determining appellants theoretical maximum term of physical confinement to be 10 years 10 months. Court affirm the judgment.

On December 1, 2006, in case No. INF055096, defendant, represented by counsel, pled guilty to counts one (Pen. Code, 459, burglary),[1]three ( 496(a), receiving stolen property), four ( 466, possession of burglary tools) and five ( 488, theft of personal property).
Thereafter, defendant was committed to state prison for two years less custody credits and the special allegation was stricken on motion of the district attorney and in the interests of justice pursuant to section 1385.We offered the defendant an opportunity to file a personal supplemental brief, which he has not done. Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

Appellant Jose C. appeals the juvenile courts denial of his request, made at his dispositional hearing, to rescind any responsibility he might have for payment of his attorney fees after the court found he was not the biological father of the dependent child and dismissed him from the case. Court find, however, that Jose was not aggrieved by this ruling and so lacks standing to appeal it. Accordingly, Court dismiss the appeal.

Raymonds father, Ronnie H., appeals from orders issued at a six-month postpermanency hearing held pursuant to Welfare and Institutions Code section 366.3, subdivision (d). His specific contention is that the juvenile court erred in failing to permit him to resume visitation with Raymond. Court disagree and affirm the orders from which he appeals.

Thomas A. MacManus appeals from his conviction for stalking and making criminal threats against his estranged wife, Anne MacManus. (Pen. Code, 422 & 646.9, subd. (b).) The prosecution introduced evidence of prior incidents of domestic violence by MacManus to establish Anne was reasonably in fear for her safety. During trial, the defense learned for the first time a police officer involved in investigating one of those prior incidents may have made false statements in an application for an emergency protective order he obtained on Annes behalf two years earlier. Although that officer was not called as a witness, MacManus sought a continuance of the trial to pursue Pitchess discovery of the personnel files of the officer in question and another officer who did testify about the prior incident. On appeal, MacManus contends the trial court erred by denying the continuance. Court find no error and affirm the conviction.