CA Unpub Decisions

Defendant was convicted of robbery (Pen. Code, 211), and the jury found he personally used a firearm in the commission of the offense. (Pen. Code, 12022.53, subd. (b).) On appeal, he contended that imposition of the upper term for the robbery violated the holding in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely) and that, in any event, the factor upon which the trial court relied was insufficient to support the upper term.
On January 18, 2006, we affirmed the judgment. After the United States Supreme Court issued its decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), we granted defendants motion to recall the remittitur and to file a supplemental brief addressing Cunningham issues only. Court again affirm the judgment.

A jury convicted defendan, Jr. of first degree burglary and receiving stolen property. On appeal, he contends he received ineffective assistance of counsel when his trial attorney failed to file a timely motion to suppress evidence. As Court explain, the record is insufficient for defendant to prevail on appeal.

The minor contends the juvenile court erred in denying his Miranda motion, since the investigating officers question first, warn later interrogation rendered the Miranda warnings ineffective. Court are not persuaded.

Defendant strangled his girlfriend to death, left her body in the back seat of her car along the Sacramento River, and called 911. A jury convicted him of first degree murder. (Pen. Code, 187.) The jury also found true allegations defendant personally used a deadly or dangerous weapon a plastic bag in the commission of the crime ( 12022, subd. (b)(1)) and was released from custody on bail at the time of the offense ( 12022.1, subd. (b)). In the sanity phase of the proceedings, the jury found defendant sane when he committed the murder. The court sentenced defendant to prison for 26 years to life with the possibility of parole: 25 years to life for first degree murder and one year for the deadly weapon use enhancement. The court stayed the sentence for the on bail enhancement.
Defendant raises three issues on appeal. First, he argues that he is entitled to reversal because the court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter based on the defense of diminished actuality. Second, defendant contends the court erroneously instructed the jury in the sanity phase that he could be placed in an outpatient program if found insane at the time of the killing. Third, defendant maintains there is insufficient evidence to support the weapon use enhancement. Court affirm the judgment.

Defendant pled no contest to felony hit and run with bodily injury. (Veh. Code, 20001, subd. (a).) The trial court imposed a three-year upper term, suspended execution, and placed defendant on probation for five years. The court subsequently sustained allegations that defendant violated the terms of his probation, revoked probation, and ordered execution of the original three year term.
On appeal, defendant contends the courts finding that he violated probation is not supported by substantial evidence, and the decision to revoke probation and impose the original sentence is an abuse of the trial courts discretion. Court reject the contentions and affirm.

This case involves a dispute between the owners of adjacent condominiums over the ownership of a two car garage airspace element of the condominium project (the disputed garage). Plaintiff James I. Valentine is the owner of the condominium designated No. 2 (condominium No. 2) of a condominium project that consists of three airspace living units and four airspace two-car garages, together with appurtenant entry, patio and deck restricted common areas. Cross-complainants David R. Flowers and Patricia M. Flowers, individually and as trustees of the David R. and Patricia M. Flowers Family Trust (collectively the Flowerses), are the owners of the condominium designated No. 3 (condominium No. 3). The recorded condominium plan for the project (the condominium plan), a copy of which is attached to the judgment in this matter, labeled the four airspace garages as: "G-3," "G-2" "G-2," and "G-1." The disputed garage is labeled the "G-2" garage adjacent to the "G-3" garage on the condominium plan.
Claiming he owned both of the "G-2" garage elements of the project, including the disputed garage, Valentine brought an action against the Flowerses to quiet title to the disputed garage, obtain possession of the garage, and recover damages for the reasonable rental value of the garage during the time it was used by the Flowerses. The Flowerses cross-complained, seeking to quiet their claimed title to the disputed garage based on the theory of adverse possession.
For purposes of the bench trial, Valentine admitted that all of the requisite requirements of the Flowerses' claim of title to the disputed garage element of the project by adverse possession had been satisfied with the exception of the Code of Civil Procedure section 325 requirement that the party claiming title by adverse possession, and the claimant's predecessors in interest, paid "all the taxes, State, county, or municipal, which have been levied and assessed upon such land." The court found that "the taxes were likely paid on the disputed garage via the sales price" the Flowerses paid for condominium No. 3, and thus the Flowerses owned the disputed garage based on the legal theory of adverse possession.
Valentine appeals, contending the Flowerses did not establish title to the disputed garage by adverse possession because the evidence is insufficient to show under section 325 that they paid all taxes levied and assessed on the disputed garage and he continued to own the disputed garage as one of the two G-2 elements of condominium No. 2.
The judgment is reversed and the matter is remanded to the trial court for further proceedings.

Defendant was found guilty of elder abuse in violation of Penal Code section 368, subdivision (b)(1), assault with a deadly weapon and resisting a peace officer. As to the conviction for elder abuse, it was found true appellant used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1). Jimenez was sentenced to a prison term of four years. She appeals, arguing error in the admission of evidence, prosecutorial error, instructional error and ineffective assistance of counsel.

Defendant drove up to Leon Culpepper (Culpepper), a high school teacher, and Bo bo, Culpeppers former student. While holding a nine-millimeter semiautomatic gun pointed at the ceiling of his car, defendant asked them, You guys gang bang. He then drove off, and Culpepper reported the incident to authorities. Defendant was subsequently arrested. A search warrant executed at his residence resulted in the police discovering a nine millimeter bullet in his bedroom.
A jury found defendant guilty of being a felon in possession of a gun, found true a gang enhancement allegation of possessing the gun for the benefit of a criminal street gang, and found him guilty of being a felon being in possession of ammunition. (Pen. Code, 12021 subd. (a)(1); 186.22, subd. (b); 12316, subd. (b)(1).) Defendant was found not guilty of the criminal offense of participating in a criminal street gang and found it not true that defendant possessed ammunition for the benefit of a street gang. ( 186.22, subds. (a) & (b).)
On appeal, defendant asserts numerous errors. He claims he was denied his right to have his retained counsel of choice. He also maintains his trial counsel rendered ineffective assistance in several instances: (1) when she conceded the possession charges in closing argument, (2) when she failed to object to his wifes testimony on marital privilege grounds, and (3) when she failed to object to his wifes testimony and the searching officers testimony on speculation grounds. He also contends that the trial court committed several sentencing errors: (1) erroneously imposed the upper term for Count 1 and the gang enhancement, (2) violated the dual use prohibition when it imposed concurrent sentences on counts 1 and 3, and (3) wrongfully imposed a habitual criminal enhancement.
Court conclude that the trial court erred in imposing the upper term and remand the matter for further proceedings in accordance with Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham).Court find no other errors and thus in all other respects, Court affirm the judgment.

Mother appeals the juvenile courts order terminating her parental rights to her son, Erik S. and her daughter, Marissa S., pursuant to Welfare and Institutions Code section 366.26. Mothers sole contention is that the San Bernardino County Department of Childrens Services (DCS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), requiring reversal. Court agree that proper notice was not provided and that the matter must be remanded for the purpose of satisfying the ICWAs notice provisions.

A Welfare and Institutions Code section 602 petition was filed in 2004, alleging that defendant and appellant L.L. (minor) committed vandalism (Penal Code, 594, subd. (b)(1)), second degree commercial burglary ( 459), and conspiracy to commit a crime. ( 182, subd. (a)(1).) Minor admitted the vandalism allegation. A juvenile court found the allegation true and dismissed the other counts. The court granted Deferred Entry of Judgment (DEJ) and placed minor on probation. Within three months, minor admitted the allegation that he failed to obey all laws. The court thus found that minor had not complied with the DEJ conditions, lifted the DEJ, reinstated the petition, declared minor a ward, and placed him on Success probation. Within a few months, minor admitted violating the terms of his probation. The court continued minor on probation and ordered him to serve 30 days in juvenile hall, with custody to remain with his parents upon release. A few months later, minor admitted to violating his probation terms again. The court continued minor on probation and ordered him to serve 45 days in juvenile hall, with custody to remain with his parents upon release.
On September 24, 2006, a subsequent Welfare and Institutions Code section 602 petition was filed alleging that minor committed a carjacking ( 215, subd. (a)) and robbery. ( 211.) Minor admitted the robbery allegation, and the court dismissed the other count. Following a contested dispositional hearing, and after considering the probation officers recommendation, the court committed minor to the Division of Juvenile Justice (DJJ) for the maximum confinement period of five years eight months.
Minor filed a Notice of Appeal, challenging his commitment to DJJ. The judgment is affirmed.

A jury found appellant, guilty of burglary of an inhabited dwelling (count 1/Pen. Code, 460, subd. (a)), possession of methamphetamine (count 2/Health & Saf. Code, 11377, subd. (a)), receiving stolen property (count 3/Pen. Code, 496, subd. (a)), and misdemeanor possession of drug paraphernalia (count 4/Health & Saf. Code, 11354). In a separate proceeding the court found true a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).
On June 27, 2005, the trial court sentenced Duarte to an aggregate seven-year term as follows: the upper term of six years on count 1, a one-year prior prison term enhancement, a concurrent term on count 2, and stayed terms on counts 3 and 4. On that same date Duarte filed a timely appeal.
On December 22, 2005, Duarte filed his opening brief citing Blakely v. Washington (2004) 542 U. S. 296 (Blakely) to argue that the imposition of the aggravated term based on facts not found true by a jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial.
On July 25, 2006, we relied on People v. Black (2005) 35 Cal.4th 1238 to reject this contention.
On August 30, 2006, Duarte petitioned for review in the California Supreme Court. Following the denial of this petition, on October 17, 2006, Duarte petitioned for a writ of certiorari in the United States Supreme Court.
On January 22, 2007, the United States Supreme Court issued its opinion in Cunningham v. California (2007) __ U. S. ____ [127 S.Ct. 856] (Cunningham), holding that Blakely applies under California law.
On February 20, 2007, the United States Supreme Court granted Duartes petition for writ of certiorari, vacating the judgment in this matter and remanding it back to this court for further consideration in light of Cunningham.
On April 19, 2007, Duarte filed a supplemental brief again arguing that under Cunningham the imposition of the aggravated term based on facts not found true by a jury violated his right to a jury trial under the Sixth and Fourteenth Amendments. Court reject this contention and affirm.

Appellant was charged by information with willful infliction of cruel or inhuman corporal punishment or injury on a child, resulting in traumatic condition (Pen. Code, 273d, subd. (a); count 1), and willful infliction of corporal injury on a spouse or cohabitant, resulting in traumatic condition (Pen. Code, 273.5, subd. (a); count 2). A jury convicted appellant on the count 2 offense, and the court declared a mistrial as to, and thereafter dismissed, count 1. The court imposed a prison term of three years.
On appeal, appellant contends the sentencing court erred in considering the facts underlying count 1, notwithstanding that appellant agreed that the court be allowed to consider such facts, because they were not supported by substantial evidence. Court affirm.

A jury convicted appellant, Kimberlynn Suzanne Russell, of first degree burglary (Pen. Code, 459). On August 9, 2006, the court sentenced Russell to the middle term of four years. On appeal, Russell contends the prosecutor engaged in misconduct during closing arguments. Court affirm.

Appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) C. has not responded to this courts invitation to submit additional briefing. Following independent review of the record we find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.