CA Unpub Decisions

Defendant and appellant Gary Scottie Collins (defendant) is serving three years in prison after: 1) pleading guilty to assault by force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) in case No. FVI018861; 2) pleading guilty to transporting methamphetamine (Health & Saf. Code, 11379, subd. (a)) in case No. FVI023199; and 3) admitting to violating probation in both cases. Appellate counsel for defendant has filed a no-issue brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to undertake a review of the entire record.
Defendant was afforded an opportunity to file a personal supplemental brief, which Cour have received and considered. Finding no arguable issues, Court affirm the judgment.

Appellant (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating parental rights to her twin girls, C.H. and K.H. (born in December 2002), and son, Kenneth T. (born in April 2005) (the children). On appeal, mother argues that: 1) the juvenile court erred in finding that the children were adoptable; 2) the beneficial parental relationship exception ( 366.26, subd. (c)(1)(A)) applied; and 3) the sibling relationship exception ( 366.26, subd. (c)(1)(E)) applied. Two of the childrens older brothers, A.H. and J.E.H., have appealed and also argue that the sibling exception applied. Court affirm the order.

On December 13, 2005, a jury found (appellant) guilty of the April 2001 murder (Pen. Code, 187, subd. (a)) of Elmo Jackson. Appellant was also convicted of being a felon in possession of a handgun ( 12021.1), and an allegation that appellant personally discharged a firearm in the commission of the murder ( 12022.53, subd. (d)) was found true. In a bifurcated proceeding, the trial court found appellant had two prior serious felony convictions. Appellant, a third striker, was sentenced to 100 years to life.
On appeal, appellant contends only that the trial court erred in denying his December 6, 2005, motion for a continuance of trial. Court disagree and affirm.

On October 11, 2003, Mary Jane Parker suffered catastrophic injuries while driving her 1999 Saturn Sedan westbound on State Route (SR) 58 in Kern County when she was struck by an eastbound 2001 Mazda 626 which had crossed into the westbound lanes unimpeded by a median barrier. The Mazda driver, Catrina Ramos Gonzalez, had lost control of her vehicle in a curve and had traveled through the paved center divider. Gonzalez was fatally injured. She was also found to be at fault for the collision.
Parker subsequently filed suit against the California Department of Transportation (Caltrans, or more generally the State) on the theory that the absence of a median barrier at the collision site constituted a dangerous condition of public property. (Gov. Code, 835.) The trial court granted summary judgment for the State on the ground of design immunity ( 830.6), and Parker appealed. Court affirm.

The essential facts of this case are not in dispute. While driving under the influence of alcohol, defendant collided with a vehicle stopped at a red light. He then ran away from the scene of the accident. As a result of the accident, Sarah Bustamante was killed and her daughter, Alicia Bustamante, was severely injured. The driver of the vehicle in which they were traveling, Yvonne Mendoza, sustained minor injuries.
A jury convicted defendant of gross vehicular manslaughter while intoxicated (count 2; Pen. Code, 191.5, subd. (a)), driving under the influence causing injury (count 3; Veh. Code, 23153, subd. (a)), driving with a blood alcohol content of .08 percent or more causing injury (count 4; Veh. Code, 23153, subd. (b)), hit-and-run resulting in injury (count 5; Veh. Code, 20001, subd. (a)), and driving without a valid drivers license (count 6; Veh. Code, 12500, subd. (a)). The jury also returned true findings on enhancement allegations for proximately causing bodily injury to multiple victims (Veh. Code, 23558), personally inflicting great bodily injury (Pen. Code, 12022.7), having a prior conviction for driving under the influence (Veh. Code, 23540), and being the driver of a vehicle involved in an accident resulting in death or serious injury to two people (Veh. Code, 20001, subd. (b)(2)).
The trial court sentenced defendant to a total prison term of 13 years as follows: on count 2, the upper term of 10 years; on count 3, eight months (one-third the midterm) plus four months for the Vehicle Code section 23558 enhancement, plus one year for the Penal Code section 12022.7 enhancement; and on count 5, one year (one-third the midterm) pursuant to Vehicle Code section 20001, subdivision (b)(2). The court imposed a concurrent six-month term on count 6. On count 4, the court stayed defendants upper term sentence and the associated enhancements, including a Vehicle Code section 23558 enhancement, under Penal Code section 654. The court also stayed the Vehicle Code section 23558 enhancement on count 2 under Penal Code section 654.
On appeal, defendant contends the trial court made several sentencing errors. Court agree the trial court should have stayed the four-month Vehicle Code section 23558 enhancement on count 3 under Penal Code section 654, and modify defendants sentence accordingly. However, as explained below, Court reject defendants other claims of sentencing error.

Appellant was convicted after jury trial of misdemeanor assault with a great bodily injury enhancement, battery resulting in serious bodily injury and making a criminal threat. (Pen. Code, 240; 12022.7; 243, subd. (d); 422.) The court reduced the criminal threat conviction to a misdemeanor. It sentenced appellant to the upper term of four years for the battery, citing recidivism-based aggravating factors. Concurrent jail terms of one year for the misdemeanor criminal threat and 180 days for the misdemeanor assault were imposed and stayed.
Appellant contends that the evidence is insufficient to support the misdemeanor threat conviction and assigns imposition of the upper term as prejudicial Blakely/Crawford error. Both arguments fail; court affirm.

On May 17, 2006, appellant, Juan Marcos Miranda, arrived at his ex-girlfriends house in Shafter, California, to find out that she had been beaten by some people at a neighboring residence. Miranda told her not to worry; he would take care of it. He and several other men then went to the neighbors house armed with bats, knives, and other weapons. There, they confronted Jon Watson whom Miranda stabbed three times in the upper torso. Following independent review of the record, Court find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

The court adjudged appellant, Jose D., a ward of the court (Welf. & Inst. Code, 602) and placed him on probation after it sustained allegations charging Jose with possession of concentrated cannabis (count 1/Health & Saf.. Code, 11357, subd. (a)), transportation of marijuana (count 2/Health & Saf. Code, 11360, subd. (a)), and possession of marijuana for sale (count 3/Health & Saf. Code, 11359). On October 3, 2006, after finding that Jose violated his probation, the court continued Jose on probation and committed him to juvenile hall for 30 days. On appeal, Jose contends that the court erred when it denied his motion to suppress. Court affirm.

Jesus G. appeals from orders of the juvenile court terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. Appellant contends, and respondent concedes, that he did not receive notice of the proceedings and that the judgment must be reversed. Court concur with the parties and reverse the judgment of the juvenile court and remand for further proceedings.

The trial court sentenced defendant to prison after a jury found him guilty of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1); all further statutory references are to that code unless otherwise indicated), with a gang enhancement ( 186.22, subd. (b)), and street terrorism ( 186.22, subd. (a)). The jury acquitted him on two other counts. He contends: (1) Insufficient evidence supports his conviction on the substantive charges and the true finding on the gang enhancement; (2) the admission of his pretrial statements violated Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]; (3) the trial court erred in admitting certain evidence and excluding other evidence; and (4) the trial court erred in sentencing and in the preparation of the abstract of judgment. Court agree with defendant and the Attorney General, that correction of the trial courts sentencing minute order and the abstract are required, but otherwise disagree with defendants contentions and affirm judgment.

Raul Rueda Corea appeals from a judgment after a jury convicted him of two counts of making fraudulent statements to obtain workers compensation benefits. Corea argues the trial court erroneously instructed the jury, insufficient evidence supports his convictions, and the court erroneously admitted evidence. As Court explain below more fully, two of his contentions have merit. Therefore, Court need not address his other claims. Court reverse the judgment.

Following a bench trial, the court convicted Albert Loc Nguyen and Michael Toan Vu of three counts each of attempted murder (Pen. Code, 187, subd. (a), 664 [counts 1, 2, & 3]) and one count each of participation in a criminal street gang (id., 186.22, subd. (a) [count 4]). In People v. Nguyen and Vu (Oct. 26, 2005, G033899) [nonpub. opn.] (the First Appeal), we reversed the convictions on counts 1, 2, and 3, affirmed the convictions on count 4, and remanded for sentencing on count 4. In this appeal, Nguyen and Vu appeal their resentences and the denial of their motion to dismiss count 4. Complications arise in what might otherwise be a straightforward appeal because the trial court resentenced Nguyen and Vu and denied their motion to dismiss count 4 before the remittitur issued in the First Appeal. The remittitur issued on February 8, 2006 and was filed in the superior court on February 9. On February 6, 2006, two days before issuance of the remittitur, the trial court conducted a sentencing hearing, at which it resentenced Nguyen and Vu and denied their motion to dismiss count 4. A minute order reflecting those decisions was entered nunc pro tunc on February 8. Nguyen and Vu filed notices of appeal on February 7, the day before the remittitur issued. The notice of appeal in the First Appeal divested the trial court of jurisdiction until the remittitur issued on February 8, 2006. Acts of judicial discretion taken before a remittitur issues are void. We grant Nguyens motion to deem the notices of appeal timely because filing a notice of appeal is a ministerial act rather than an act of judicial discretion. Court conclude, however, the trial court lacked jurisdiction on February 6, 2006 to resentence Nguyen and Vu and to consider their motion to dismiss count 4. For that reason, the resentences are void, and Court are compelled to reverse and remand for the sole purpose of resentencing under count 4. Court note that the trial court was correct to deny the motion to dismiss count 4 because our opinion in the First Appeal expressly and unequivocally affirmed the convictions on that count.

A jury convicted Sandra Lynn Lane of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and unauthorized entry into a dwelling (Pen. Code, 602.5, subd. (a)). She contends the trial court interfered with her constitutional right to counsel at trial and sentencing, and denied her right to allocution. She also argues the trial court erred in finding she lacked standing to suppress evidence seized during her arrest. Court conclude defendants right to counsel was violated and therefore reverse the judgment.

Plaintiffs appeal from a judgment entered after the trial court sustained defendants demurrer without leave to amend. Plaintiffs allege that defendant Merit Property Management, Inc., wrongfully charged certain fees in connection with the transfer of title for home purchases. Court find the facts alleged fail to state a claim on which relief can be granted, and therefore the trial court properly sustained defendants demurrer. Because plaintiffs have failed to demonstrate that further amendment will cure the complaints deficiencies, the trial court did not abuse its discretion in denying further leave to amend, and Court affirm.