CA Unpub Decisions

Defendant Richard Allen Wonderley appeals after pleading no contest to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and admitting the allegation he had previously been convicted of a serious felony ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
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.
Having undertaken an examination of the entire record, Court find no arguable error that Court can address on direct appeal that would result in a disposition more favorable to defendant.

Defendant Jermaine Brown appeals from a judgment of conviction entered after a jury found him guilty of attempted murder (Pen. Code, 664/187 count 1), robbery ( 211 count 2), and assault with a firearm ( 245, subd. (a)(2) count 4). As to counts 1 and 2, the jury also found true the allegations that defendant personally discharged a firearm causing great bodily injury ( 12022.53, subds. (b), (c), and (d)) and caused great bodily injury ( 12022.7). As to count 4, the jury found true the allegations that defendant personally used a firearm ( 12022.5) and caused great bodily injury ( 12022.7). In a bifurcated proceeding, the trial court found that defendant had suffered a prior strike conviction ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court sentenced defendant to 59 years to life in state prison. On appeal, defendant contends: (1) trial counsel rendered ineffective assistance; (2) the trial court erred when it considered a juvenile adjudication as a prior felony conviction under the Three Strikes law; (3) the imposition of the upper term and consecutive sentences violated his rights to jury trial and due process; and (4) the trial court erred by imposing consecutive sentences in counts 1 and 2. In our original opinion, Court held that the trial court erred in imposing the upper term. (People v. Brown (Jan. 10, 2005, H025981, H026927) [nonpub. opn.].) After the California Supreme Court transferred the case to this court for consideration in light of People v. Black (2005) 35 Cal.4th 1238 (Black), we affirmed the judgment. Following the United States Supreme Courts remand to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), Court reverse and remand for resentencing.

Defendant pleaded guilty to the following: possession of methamphetamine for sale (Health & Saf. Code, 11378 [count 1]); use of a minor in the commission of count 1 (Health & Saf. Code, 11380 [count 3]); possession of cocaine for sale (Health & Saf. Code, 11351 [count 4]); and use of a minor in commission of count 4 (Health & Saf. Code, 11353 [count 6]). Defendant admitted allegations that the minor used as an agent in the commission of counts 3 and 6 was at least four years younger than defendant (Health & Saf. Code, 11380.1, 11353.1, subd. (a)(3).) Defendant also admitted that he had suffered a prior strike conviction (Pen. Code, 667, subds. (b)-(i)) and had served two prior prison terms (Pen. Code, 667.5, subd. (b)). The trial court sentenced him to 15 years and 8 months in state prison. Following his appeal, this court reversed the judgment and remanded for resentencing. The trial court then imposed a prison term of 15 years. Defendant appealed. Relying on People v. Black (2005) 35 Cal.4th 1238 (Black), this court held that the trial court did not err in imposing the upper term and affirmed the judgment. Following the United States Supreme Courts remand to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), Court reverse and remand for resentencing.

Defendant Richard Albert Fernando appeals from a judgment of conviction entered after a jury found him guilty of sale of cocaine base (Health & Saf. Code, 11352, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, 11364). In a bifurcated proceeding, defendant admitted that he had suffered two prior drug sale convictions. The trial court sentenced defendant to eight years in state prison. On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to object to a modified version of CALJIC No. 2.50. For the reasons stated below, Court affirm.

Plaintiff appeals from the final judgment entered against her after the last in a series of motions for summary judgment through which defendant Bank of America (Bank) eventually was able to pare her complaint down to nothing. The plaintiff contends the trial court erred in concluding that federal law preempts her claim under state law for age discrimination, and that her claim under federal law for a violation of her right to medical leave is not viable. Court affirm

A jury found defendant guilty of grand theft from a person (Pen. Code, 487, subd. (c); further undesignated section references are to this code), a lesser included offense to the charged crime of robbery ( 211). The trial court suspended imposition of sentence, placing defendant on five years probation and ordering him to serve one year in county jail. On appeal, defendant contends the jurys verdict is not supported by substantial evidence because there was no evidence he did anything to separate the purse from the victims person, and that the trial court failed to instruct the jury as to the lesser included offense of petty larceny. Because defendants first contention has merit, Court reverse the judgment of conviction for grand theft person and direct that the trial court enter a judgment for petty theft and modify the sentence accordingly. In all other respects Court affirm the judgment.

Patricia B., mother of the minor, appeals from orders of the juvenile court placing the minor in long-term foster care. (Welf. & Inst. Code, 366.21, subd. (f), 395 [further undesignated statutory references are to this code].) Appellant contends substantial evidence does not support the juvenile courts findings that there was a substantial risk of detriment in returning the minor to her care and that she had not made substantial progress in services. Court affirm.

Robin Rivet appeals a judgment determining that she has no interest in a single family residence. Court reverse and remand for further proceedings to determine Rivet's share.

A jury found Maurice White guilty of crimes arising from his stabbing his former girlfriend in the neck. He was convicted of assault with a deadly weapon, corporal injury to cohabitant resulting in traumatic condition, and false imprisonment by means of threat or violence. (Pen. Code, 245, subd. (a)(1), 273.5, subd. (a), 236.) On the assault and injury to cohabitant counts, the jury found White personally inflicted great bodily injury and personally used a deadly weapon. On the injury to cohabitant count, White admitted he had suffered a prior misdemeanor conviction for corporal injury to a cohabitant resulting in a traumatic injury. The court imposed a seven year prison term.
On appeal, White contends he received ineffective assistance of counsel because his counsel did not object to statements made by the prosecutor during closing arguments. White also brought a habeas petition asserting the same contention. Court reject this contention, affirm the judgment, and deny the petition.

A jury convicted defendant and appellant Armando Plascencia of one count of felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a), count 1) and one count of possession of a hypodermic needle and syringe (Bus. & Prof. Code, 4140, count 2). Furthermore, the trial court found that defendant was in violation of his probation. The court sentenced defendant to the upper term of three years in state prison on count 1 and to a concurrent term of six months on count 2. The court also sentenced defendant to three consecutive terms of eight months each on three matters involving the probation violations.
On appeal, defendant contends that: 1) the trial court abused its discretion in admitting evidence of his prior possession of methamphetamine under Evidence Code section 1101, subdivision (b); 2) there was insufficient evidence to prove that he had knowledge of the presence of the methamphetamine and syringes, or that he possessed them; and 3) the court erred in imposing the upper term and consecutive terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Defendant has submitted a petition for rehearing asserting that Cunningham v. California (2007) U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), requires that a jury find aggravating factors true before a trial court may impose the upper term and consecutive terms. Court affirm.

Appellant and defendant Matthew Daniel Heyden pled guilty to second degree burglary (Pen. Code, 459) and identity theft. ( 530.5, subd. (a).) The court granted probation for a period of three years, subject to certain terms and conditions. On appeal, defendant argues that one of the probation conditions is unconstitutional. He also argues that he is entitled to additional good conduct credits. The People concede that he should have been awarded more good conduct credits. Otherwise, Court affirm.

A jury convicted defendant of three counts of aggravated child molestation involving multiple victims. ( 288, subd. (b)(1) and 667.61, subd.(e)(5).) The court sentenced defendant to three consecutive terms of 15 years to life.
On appeal, defendant charges the trial court committed multiple errors by using various standard jury instructions. Defendant further challenges the sufficiency of the evidence on count 2. Court reject defendants contentions and affirm the judgment.

Appellants Deanna W. (mother) and Allan S. (father) are the parents of minors Allan, Adriana, Kimberly, and Christopher. At a hearing held pursuant to Welfare and Institutions Code section 366.26,[1]the juvenile court terminated the parents parental rights as to the children. The parents contend: (1) the court erred in finding that the so-called beneficial relationship exception to adoption under section 366.26, subdivision (c)(1)(A), did not apply; (2) limitations on visitation violated their right to substantive due process; and (3) the court abused its discretion when it terminated parental rights without receiving information from the children about their wishes. Court affirm.

Plaintiff Santa Rosa Trails appeals from a judgment dismissing its case after the trial court sustained defendants demurrer with prejudice as to two causes of action and plaintiff subsequently dismissed the remaining two causes of action with prejudice.
Plaintiff raises two issues on appeal: whether the litigation privilege (Civ. Code, 47, subd. (b)) applies to its claims and whether the complaint could be amended to allege a claim for malicious prosecution. In addition to opposing these arguments, defendants assert the appeal was untimely. Based on our independent review, Court affirm the judgment. (Walker v. Allstate Indemnity Co. (2000) 77 Cal.App.4th 750, 754.)