CA Unpub Decisions

Defendant Ephremjay Uganda Chambers appeals following a court trial after which he was convicted of violating carrying a loaded firearm on his person or in his vehicle with a prior weapons violation. (Pen. Code, 12031, subd. (a)(1).) On appeal, defendant claims there was not probable cause to arrest him and subsequently search his vehicle. In addition, defendant asserts there was insufficient evidence to support his conviction for possession of a loaded firearm in his vehicle, because he was homeless at the time of the arrest, and was living in his car, making it a temporary residence.

Jon Clarke Dunham entered a negotiated guilty plea to four counts of lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code, 288, subd. (a).) The court sentenced him to a stipulated 14 years in prison: the eight year upper term on one count with two year consecutive terms on the remaining three counts (one third the middle term). (The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

Paulette A. appeals the findings and orders made at a 12 month review hearing held pursuant to Welfare and Institutions Code section 366.21 an appeal authorized by Welfare and Institutions Code section 395. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. The appeal is dismissed.

Z.L C. appeals the findings and orders made at a six-month review hearing held pursuant to Welfare and Institutions Code section 366.21 an appeal authorized by Welfare and Institutions Code section 395. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
Z.L C.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

Appellants Devon L. and Crystal C. appeal from an order of the juvenile court terminating their parental rights to their two year old son Julius L. (Welf. & Inst. Code, 366.26, 395). They contend the juvenile court failed to provide proper notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.).
The judgment is reversed.

This case involves two separate appeals in an action to enforce child support arrears. Respondent Monterey County Department of Child Support Services (DCSS) sought to collect accrued arrears from appellant Nick Arellano, the noncustodial parent. The first appeal is from an order fixing the amount of child support arrears and directing appellant to make monthly payments. The second appeal is from the order denying relief under Code of Civil Procedure section 473. Both orders were issued by a court commissioner.
The March 22, 2005 order enforcing payment of child support arrears and the December 2005 order denying relief under section 473, subdivision (b), are affirmed.

Defendant Richard Scott Whicker was convicted of sexually molesting his two prepubescent sons. On appeal he contends that the trial court committed numerous errors in the admission and exclusion of evidence. We agree that the court erred in at least four respects, by admitting extremely flimsy evidence of other inappropriate behavior by defendant toward children; by admitting irrelevant or marginally relevant but highly prejudicial evidence concerning his sexual predilections toward adults; by admitting incriminating extrajudicial statements by his sons without following the clearly prescribed statutory procedure for assessing their reliability; and by misapplying the rule of evidence permitting the admission of an entire conversation, or its relevant portions, when part has been admitted. The sheer number of unsustainable evidentiary rulings makes it impossible for us to conclude that defendant received a fair trial, or that the verdict was not the product of these errors. Accordingly, Court reverse the judgment.

On March 21, 2007, the Supreme Court transferred this matter (S139081) to this court with directions to vacate our unpublished decision filed October 17, 2005, and to reconsider the matter in light of People v. Modiri (2006) 39 Cal.4th 481 (Modiri). In our earlier decision we held that CALJIC No. 17.20 impermissibly allowed the jury to find that defendant had personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a))[1] in the course of a group beating without finding that defendants conduct had directly caused, or could have directly caused, the injury. Court reversed the judgment and remanded for retrial of the section 12022.7 enhancement. The Supreme Court granted review and deferred briefing pending its decision in Modiri. Modiri approved the group beating section of CALJIC No. 17.20. Court hereby vacate our previous decision and reconsider the matter in light of Modiri.

Thomas Steven Liodas filed a notice of appeal with this court following the judgment of conviction ordering him to formal probation after he entered a guilty plea to possession of methamphetamine and possession of narcotics paraphernalia.[1] (See Health & Saf. 11377, subd. (a), 11364.) A certificate of probable cause was denied when requested for ineffective assistance of counsel. Thus, the appeal is limited to issues arising after entry of the plea that do not challenge its validity or involve a search or seizure. (See Pen. Code, 1237.5; Cal. Rules of Court, rule 30(b).)
Court appointed counsel to represent Liodas on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against Liodas but advised the court he failed to find any issues to argue on Liodass behalf. Court examine the entire record ourselves to see if any arguable issue is present. (See People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

Defendant Manuel Escobedo was convicted of two counts of attempted murder, one count of shooting at an occupied vehicle, two counts of possession of marijuana for sale, and one count of sale or transportation of marijuana. A jury also made true findings on two firearm enhancements.
Defendant challenges the sufficiency of the evidence for the attempted murder convictions, arguing there was insufficient evidence he was the shooter. In addition to the identification by the victim eyewitness, there was significant circumstantial evidence identifying defendant as the shooter. Although defendant argues the victim eyewitnesss testimony was not reasonable, credible, or reliable, the weight to give that testimony was a question for the jury, not for this appellate court, to decide.
Defendant also challenges the trial courts imposition of consecutive sentences, arguing his constitutional rights to due process and a jury trial were violated when the trial court made findings that were not proven to a jury beyond a reasonable doubt. The imposition of a consecutive rather than a concurrent sentence, however, does not violate the rule against imposition of an upper term sentence based on facts not found by a jury, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Therefore, Court reject defendants challenge to his sentence, and affirm the judgment.

Juan Alberto Pacini appeals from the judgment granting him probation conditioned on his serving 120 days in Orange County Jail and paying restitution to the workers compensation fund for losses of $81,449.47 following a jurys verdict that he made fraudulent statements for the purpose of obtaining workers compensation funds. (See Insur. Code, 1871.4, subd. (a)(1).) On appeal, he contends that the court erred by allowing expert testimony that he was malingering and by failing to instruct the jury that his out-of court statements should be viewed with caution. In a supplemental brief, he also attacks the amount of restitution ($81,449.47) the trial court ordered him to repay. Court affirm.

Patrick Vincent Pitts appeals from the judgment sending him to prison for the aggregate period of 25 years to life following a jury trial in which he was convicted of transporting marijuana, possessing marijuana for the purpose of sales, grand theft of an automobile by false pretense, and possession of a forged drivers license. (See 11360, subd. (a), 11359; Pen. Code, 470b, 487, subd. (d)(1).) A subsequent court trial found that Pitts had three prior strike convictions and a prior prison term, although the one-year enhancement for the latter allegation was stricken by the court for sentencing purposes. (Pen. Code, 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d).)
On appeal, Pitts contends he was deprived of his right to due process when the prosecution amended the information charging his transportation of marijuana but then failed to include reference to the amount that had to exceed 28.5 grams. We disagree. Pitts also contends the abstract of judgment must be corrected because it failed to accurately record the sentencing courts stay of the term on count two (the possession for sale of the marijuana) and instead stayed imposition of the term for count three (the grand theft of the vehicle). The Attorney General responds to this latter issue by noting that the sentencing court imposed an unauthorized sentence when it stayed the term for one count and ordered two other counts to be served concurrently. Pitts replies that the state failed to object to the discretionary finding and thus waived this complaint. Court order the abstract corrected to conform to the actual judgment of the court, but, as raised by the Attorney General, one count of the judgment must be reversed and remanded as the courts order imposed an unauthorized sentence.

A jury convicted defendant Miguel Angel Almazan of one count of continuous sexual abuse and five counts of lewd acts on a child. Defendant appeals, contending he cannot be convicted of both continuous sexual abuse and multiple counts of lewd acts because the acts were all committed against the same victim in the same time period. He also asserts the trial court erred in instructing the jury with CALJIC No. 2.20.1 and imposing a security fee. Court agree with defendants first contention and reverse his five convictions for lewd acts on a child (counts 2 through 6). In all other respects, the judgment is affirmed.

Curtis Allen was convicted of possession of cocaine base for sale and possession of cocaine base. (Health & Saf. Code, 11351.5, 11350, subd. (a).) In his appeal he contends the trial court abused its discretion when it denied his motions to relieve counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 and violated his Sixth Amendment right to a jury trial when it imposed an aggravated term.
In an unpublished opinion filed on November 18, 2005, Court affirmed the judgment in its entirety. Allens petition for a writ or certiorari to the United States Supreme Court was filed on April 13, 2006. On February 20, 2007, Allens petition was granted and the matter remanded to us with an order to vacate our previous opinion and reconsider the matter in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].
Cunningham held that Californias Determinate Sentencing Law violated the Sixth Amendment to the Constitution to the extent it permitted an aggravated sentence to be imposed on factors that were found true by the judge, not the jury, and were found true by a preponderance of the evidence instead of beyond a reasonable doubt. (Cunningham v. California, supra, 549 U.S. at p. [127 S.Ct. at p. 868].) The only exception to these requirements is the fact of a prior conviction. (Ibid.) In light of Cunningham, Court reconsider the issue of Allens sentence. Court republish the remainder of our original opinion as it is not affected by the remand from the United States Supreme Court.