CA Unpub Decisions

A jury convicted Alfredo Vierra Abanico and Vincent Lopez of five counts of kidnapping for purposes of robbery, five counts of kidnapping to facilitate a carjacking, and street terrorism. It further found that they personally used firearms and committed the crimes for the benefit of a criminal street gang. After a court trial, the court found that both defendants had served prior prison terms and that Lopez had a prior strike conviction. (Pen. Code, 209, subd. (b)(1), 209.5, subd. (a), 186.22, subds. (a) & (b)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), 667.5, subd. (b), & 1170.12, subd. (c)(1).) The court sentenced Abanico to two consecutive terms of 15 years to life for two counts of kidnapping for robbery as enhanced by the gang findings plus two consecutive 10-year firearm enhancements. The court imposed identical concurrent terms for the remaining three counts of kidnapping for robbery and five counts of kidnapping to facilitate carjacking and a two-year term for street terrorism plus a one-year term for the prison enhancement, but it stayed the terms on the convictions for kidnapping/ carjacking and street terrorism under section 654. Court conclude there is insufficient evidence to support the gang enhancements, reverse the judgment and remand the case for resentencing.

A jury found defendant guilty of first degree burglary. (Pen. Code, 459.) Four prior conviction allegations were submitted to the trial court and found true. Defendants motion, based on section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to dismiss the prior convictions was denied, and the court sentenced him to 23 years in state prison. Defendant appeals the denial of his motion as an abuse of discretion. Court affirm the judgment.

A jury convicted defendant of first degree burglary, unlawfully driving or taking a vehicle, and possessing a hypodermic needle. He admitted having served a prior prison term and was sentenced to an aggregate term of five years and eight months in state prison, including a consecutive term of eight months for unlawfully driving or taking a vehicle.
On appeal, defendant contends his sentence for unlawfully driving or taking a vehicle should have been stayed pursuant to Penal Code section 654. Court disagree and affirm the judgment.

Defendant pled no contest in Sacramento County to attempted lewd and lascivious conduct on a child under age 14 and, on September 28, 2004, the trial court suspended execution of a four-year prison term and placed defendant on probation for five years.
The offense stemmed from an incident in which the 36-year-old defendant, while touching his exposed penis, stopped his car next to the 13-year-old victim and asked her for directions. The victim saw defendants penis and backed away. Defendant asked the victim if she wanted to get in the car and show him where to go. When the victim told defendant she did not want to get in the car, he asked her if she was sure. The victim said she was sure, and defendant left. Defendant had approached two other young girls in a similar manner on the same date and, previously, had sexual intercourse with two minors in the same age range.
Court have undertaken an independent examination of the entire record in this case and have found no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

The trial court granted defendant Antonio Martinez Zavalas pretrial request that it strike allegations from the information charging him, for purposes of sentencing, with having four prior serious felony convictions. (Pen. Code, 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
The People appeal, contending the trial court abused its discretion in striking the allegations. Court cannot say that the trial court acted arbitrarily, capriciously, or beyond the bounds of reasons. (Peoplev.Williams (1998) 17 Cal.4th 148, 162; Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1124.) In other words, there was no abuse of discretion, and Court affirm the judgment.

On three separate occasions, defendant was stopped for violating the Vehicle Code. On each occasion, defendant was found to be possessing methamphetamine, and on one occasion he was under the influence of the drug.
Defendant obtained a certificate of probable cause and appeals. He contends the parole revocation fine violated the plea agreement and his custody credits were miscalculated (the People concede the second point). Court order an extra day of custody credit and otherwise affirm the judgment.

Ernst M., father of the minors, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends there is no substantial evidence the minors are likely to be adopted. Court affirm.

Patrick F., father of the minors, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395 [further undesignated statutory references are to this code].) Appellant raises various issues relating to the termination of his parental rights and also contends the notices sent pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) were not adequate. Agreeing only with the latter contention, Court reverse for proper notice in accordance with the ICWA.

Defendant entered a negotiated plea of guilty to two counts of first degree burglary in exchange for dismissal of the remaining counts and a stipulated prison term of five years and four months. The trial court imposed two $1,000 restitution fines that had not been mentioned by the prosecutor when he recited the parties plea agreement.
On appeal, defendant contends that imposition of the fine violated his plea agreement, thereby entitling him to have the fine reduced to the statutory minimum of $200 pursuant to People v. Walker (1991) 54 Cal.3d 1013. For the reasons stated in the California Supreme Courts recent decision in People v. Crandell (2007) 40 Cal.4th 1301, Court reject the contention and affirm the judgment.

A jury convicted defendant and appellant Francis DiBlasi of robbery (Pen. Code, 211)and second degree burglary ( 459). The jury also found true that defendant had a previous felony conviction in 1977, within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). The court sentenced defendant to a total term of imprisonment of 10 years, which was composed of the upper term of five years in state prison on the robbery conviction, doubled to 10 years under the Three Strikes law. The court also imposed the upper term of three years on the burglary conviction, but stayed it pursuant to section 654.
On appeal, defendant contends that: 1) there was insufficient evidence to support the finding that he was the named person in the court documents presented as proof of his previous conviction; and 2) the court erred in imposing the upper 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. Court affirm.

Defendant killed Bryan Richards for the $1 million life insurance policy that would allow defendant and his lover, Bryans wife, to be set up . . . very nicely. A jury found defendant guilty of first degree murder and found true the special circumstance alleged that the murder was carried out for financial gain. (Pen. Code, 187, subd. (a) & 190.2, subd. (a)(1)).
On appeal, defendant argues that (1) the trial court should have instructed on manslaughter and self-defense, (2) the trial court should not have instructed on consciousness of guilt, and (3) the trial court erroneously imposed a parole revocation fee when defendant has been sentenced to life without the possibility of parole. We conclude there was insufficient evidence to give manslaughter and self-defense instructions. Even if we were to assume there was substantial evidence to give self defense and lesser-included offense instructions, the result would have been the same under any standard of review because the jury found the murder was committed for financial gain. We also conclude that the trial court correctly gave CALJIC No. 2.03 (consciousness of guilt) instructions. However, we find that the jury should not have been given CALJIC No. 2.04 (efforts by defendant to fabricate evidence), as there was no evidence supporting that instruction. Erroneously giving CALJIC No. 2.04 was harmless under any standard as the jury would not have been confused by it. Finally, Court determine that the trial court incorrectly imposed a parole revocation fine when defendant was sentenced to life without the possibility of parole. Court strike that fine, modify the judgment accordingly, and affirm the judgment as modified.

C.G. (father) and M.S. (mother) (collectively the parents) are the natural parents of Christopher G. and Nathaniel G. (hereafter referred to individually by first name or collectively as the children), dependent children of the juvenile court. At a jurisdictional and dispositional hearing, the juvenile court removed the children from the care of mother and father. The parents appeal the jurisdictional and dispositional orders. Court affirm.

This is defendants second appeal in this matter. In 2004, pursuant to a plea agreement, defendant, represented by counsel, pleaded guilty to one count of second degree murder (Pen. Code, 187) in exchange for a promised sentence of 15 years to life in state prison and the dismissal of the remaining two counts of murder, one count of attempted murder, and the enhancement allegations. (See People v. Rivera Nov. 30, 2005, E037237) [nonpub. opn.] [pp. 2, 4].) Thereafter, in accordance with the plea agreement, the trial court dismissed the remaining allegations and enhancements and sentenced defendant to the promised sentence of 15 years to life in state prison. (Id. [pp. 2, 5].) Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

The juvenile court found true allegations that minor had committed burglary, received stolen property, and unlawfully took or drove a vehicle. Each of the crimes was specified as a felony. On appeal, minor contends the matter must be remanded to allow the juvenile court to expressly declare on the record that it is aware that each of the crimes can be sentenced as a misdemeanor or felony, and to thereafter exercise its discretion in determining whether to sentence as a misdemeanor or felony. (See Welf. & Inst. Code, 702.) Additionally, minor maintains the court erred in its calculation of minors potential maximum period of confinement. Court agree that the matter should be remanded for the court to comply with section 702. Otherwise, Court affirm the judgment.