CA Unpub Decisions

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, Court vacate the sentence and remand to the trial court for resentencing.

Defendant appeals from a judgment entered following a jury trial in which he was convicted of second degree robbery (Pen. Code, 211) and a court trial in which he was found to have suffered a prior strike conviction (Pen. Code, 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and a prior serious felony within the meaning of Penal Code section 667, subdivision (a)(1). He was sentenced to prison for nine years, consisting of the low term of two years, doubled pursuant to the Three Strikes law, plus five years pursuant to the enhancement of Penal Code section 667, subdivision (a)(1).
The evidence at trial established that on December 15, 2005, Latoya Johnson was walking in an alley on her way to pick up her daughter at school when she heard appellant call out to her and saw him running towards her. Appellant asked to use her cell phone, and she told him it did not work. Appellant grabbed her arm, and she tried to yank away and run. Her purse was open and a makeup wallet was sticking out of [her purse.] Thats what he grabbed. And [she] just kept running. Police were summoned and she was driven to a nearby location to see if she could identify the robber. The first person she saw was not the person who robbed her. She was driven to another location, where she identified appellant as the robber. It was approximately five minutes after she had been robbed and she was 100 percent certain.
After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.The judgment is affirmed.

Appellants and the Community Redevelopment Agency of the City of Palmdale (the Agency) appeal from dismissal of their petition for writ of mandate against respondent Board of Directors of the Antelope Valley Healthcare District (AVHD) for violation of the Brown Act (Gov. Code 54960, et seq.), The trial court concluded that AVHD had cured the violations alleged in the petition by passing a resolution nullifying those actions under section 54960.1. Appellants contend the curative resolution was itself adopted in violation of the Brown Act and that AVHDs future violations remained to be addressed. Court affirm.

Defendant appeals from the judgment entered following a jury trial in which he was convicted of first degree murder, with further findings of the special circumstance that the murder was committed while defendant was engaged in an attempted robbery and that defendant personally and intentionally discharged a handgun, proximately causing death. Defendant contends that because of insufficient corroborating evidence to establish the special circumstance finding, that finding should be reversed with directions to dismiss it, and that his conviction of first degree murder should also be reversed. He further contends that the accomplice instruction given to the jury was prejudicially defective. Court find merit in defendants first contention and therefore reverse the special circumstance finding, ordering that it be dismissed, and reverse the conviction of first degree murder. Based on this disposition, Court do not discuss defendants contention of instructional error.

Defendant appeals from the judgment entered following a jury trial resulting in his conviction of carjacking with the personal use of a firearm. (Pen. Code, 215, subd. (a), 12022.53, subd. (b).) The trial court sentenced him to an aggregate term of 15 years in state prison, consisting of five years for the offense, enhanced by 10 years for the use of the firearm.
He contends that it was reversible error to inform the jury [that] an accomplice had already plead[] guilty to the same offense.

Luis Ramirez appeals from the judgment entered following his plea of no contest to allegations of gross vehicular manslaughter while intoxicated, driving under the influence causing injury, and inflicting great bodily injury. He contends that imposition of an upper-term sentence violated Cunningham v. California (2007) U.S.[127 S.Ct. 856] (Cunningham) and constituted an abuse of discretion, and that enhancements for great bodily injury were improperly imposed. Court agree that the enhancements were improperly imposed, order that the judgment be modified to strike them, conclude that the Cunningham error is harmless, and affirm the judgment as modified.

Defendant appeals from the judgment entered following his plea of no contest to allegations of gross vehicular manslaughter while intoxicated, driving under the influence causing injury, and inflicting great bodily injury. He contends that imposition of an upper-term sentence violated Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham) and constituted an abuse of discretion, and that enhancements for great bodily injury were improperly imposed. Court agree that the enhancements were improperly imposed, order that the judgment be modified to strike them, conclude that the Cunningham error is harmless, and affirm the judgment as modified.

Oscar A. appeals from the order of wardship entered following his admissions on separate juvenile petitions that he possessed marijuana for the purpose of sale and was a minor in possession of a firearm. He contends that his motion to suppress evidence of the firearm was erroneously denied and that three of the conditions of his probation were overbroad. Court affirm the order of wardship and order the juvenile court to modify the conditions of probation.

Defendant appeals from the judgment entered following a jury trial in which he was convicted of two counts of petty theft with a prior (Pen. Code, 484, subd. (a), 666)[1]and a court trial in which he was found to have suffered two prior convictions of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) & 667, subds. (b)-(i))[2]and four prior convictions and prison terms within the meaning of Penal Code section 667.5, subd. (b).[3] The court struck one of the prior strikes in the interest of justice and sentenced appellant to prison for a total of 11 years and four months. The term consisted of the upper term of three years for count 2, doubled pursuant to the Three Strikes law, one-third the middle term of two years, doubled, for count 3 and one year for each of the four prior prison term enhancements. Appellant contends imposition of the upper term sentence violated his federal constitutional rights to proof beyond a reasonable doubt and a jury trial. For reasons stated in the opinion, Court affirm the judgment.

George Guinn appeals from an order determining that he is a mentally disordered offender (MDO) and recommitting him to the Department of Mental Health for treatment. (Pen. Code, 2960 et seq.) He claims there is insufficient evidence to support the finding that he represents a substantial danger of physical harm to others. ( 2972, subd. (c).) Court affirm.

Defendant was convicted of three counts of second degree robbery and one count of possession of a firearm by a felon, with findings that the robberies had been committed for the benefit of a criminal street gang, that Baltazar had used a shotgun during the commission of all three robberies, and that he had suffered two prior strike convictions. (Pen. Code, 211, 12021, subd. (a)(1), 186.22, subd. (b)(1)(C), 12022.53, subd. (b), 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)[1] Baltazar appeals, challenging the sufficiency of the evidence in support of the gang enhancement and claiming the trial court should have stricken one of his prior strikes. Court disagree and affirm the judgment.

Defendant was convicted of receiving stolen property (count 1) and possession of methamphetamine (count 2), with true findings on allegations that he had suffered one prior strike and served one prior prison term. (Pen. Code, 496d, subd. (a), 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667.5, subd. (b); Health & Saf. Code, 11377, subd. (a).) He was sentenced to state prison for a term of two years, eight months. He appeals, claiming instructional error. Court affirm.

Appellant brought claims against her employer, Conico Roro, Inc.; Peter Hong; and Hong Holdings, LLC, dba Conico Management (Conico), for unpaid overtime wages (Lab. Code, 1194), missed meal and rest periods ( 226.7, 512), wage statement violations ( 226), willful failure to pay ( 203), and unfair business practices. (Bus. & Prof. Code, 17200 et seq.) After a bench trial, the court entered judgment for Conico on all claims except the claim for unpaid meal and rest breaks during a period when Avalos worked as a non-exempt cashier. Neither party challenges the meal and rest period award.
On her overtime claim, Avalos contends that the trial court used the wrong formula to determine whether, during her term as manager, she received the minimum salary necessary to qualify for overtime exemption. She also contends she is entitled to penalties for Conico's failure to include its address on her wage statements. We affirm the judgment because substantial evidence supports the trial court's findings that Avalos did not work any overtime hours and suffered no harm as the result of any error or omission on her wage statements.

Mother appeals from juvenile court orders denying her Welfare and Institutions Code section 388 modification petition seeking custody of her seven children or, in the alternative, liberalized, unmonitored visitation with the children. Mother also contends the court erred in failing to apply either the sibling relationship ( 366.26, subd. (1)(E)) or the beneficial relationship exception ( 366.26, subd. (1)(A)), and instead terminating parental rights to one of her children freeing him for adoption. Court find no error, and affirm.