CA Unpub Decisions

Defendant appeals his convictions of possessing marijuana for sale (Health & Saf. Code, 11359), cultivating marijuana ( 11358) and possessing more than 28.5 grams of marijuana ( 11357, subd. (c)). The trial court suspended imposition of sentence and granted probation on the felony counts of possessing marijuana for sale and cultivating marijuana. On the misdemeanor count of possessing more than 28.5 grams of marijuana, the court denied probation and imposed a sentence of 49 days, the amount of time Childers had already served. On appeal, Defendant contends there is insufficient evidence to support a finding his cultivation and possession of marijuana exceeded his current medical needs, the prosecutor's theory of conviction was both legally and factually inadequate, the court erred in failing to instruct the jury on principles relating to his defense, and the court erred in imposing rather than staying the term for possessing more than 28.5 grams of marijuana. Court affirm the judgment.

Defendant was arrested and his van was impounded. Upon his release from jail Fugate broke into the impound yard where his van was held and took the van. While in the impound yard Fugate broke into three other vehicles in the yard and took a number of valuables from those vehicles. A few days later sheriff's deputies found Fugate and his van. The items taken from the other vehicles in the impound yard were in Fugate's van. Fugate was convicted of two counts of grand theft, one count of petty theft and one count of trespass with the intent to interfere with a lawful business. The trial court sentenced him to two 6-year sentences on the grand theft charges and two 180-day sentences on the petty theft and trespass charges. The court ordered that all sentences run concurrently.
On appeal Court find with respect to both grand theft convictions there was substantial evidence the value of the items appellant stole was in excess of $400. Court also find there was substantial evidence appellant broke into the impound yard with the intent to interfere with the business of the towing company. Because each theft conviction was related to a separate vehicle from which appellant took valuables, the trial court could impose sentence on each of the three theft convictions. Finally, in light of appellant's concession he suffered eight prior convictions for which probation was not available, the trial court did not infringe upon his Sixth Amendment rights in imposing the upper term on the grand theft convictions.

Defendant conspired with her boyfriend, defendant Terry Bell, and with their mutual acquaintance, defendant Christopher Long, to kill DeMolas mother by beating her to death. After the commission of the crime, however, as Defendant was driving away, she got into an accident. She left the accident scene (evidently so she could drop off her coconspirators) but then came back and told the police that she had caused the accident because her house was being robbed. Police went to her house, where they found the victim on the floor, unconscious in a pool of blood, with a broken nose, a broken jaw, broken ribs, and a skull fracture that ultimately proved fatal. A jury found Defendant and Bell guilty of first degree murder. (Pen. Code, 187, subd. (a), 189.) It also found true both a lying in wait special circumstance and a torture murder special circumstance. (Pen. Code, 190.2, subd. (a)(15), (18).) However, it found an alleged financial-gain special circumstance not true. (Pen. Code, 190.2, subd. (a)(1).) A separate jury found Long guilty of first degree murder but rejected all three alleged special circumstances. DeMola and Bell were sentenced to life without parole. Long was sentenced to 25 years to life.
The appellate issues raised are many, but they can be grouped into several broad categories. A number of them involve the fact that at least according to Defendant this case was initially filed in juvenile court. Others involve the admission of hearsay statements by Bell and by Long, not only against them, but also against their codefendants. Several others involve asserted jury misconduct. In addition, there are assorted evidentiary, instructional, and sentencing issues. As the People concede, the trial court erred by imposing a parole revocation restitution fine (Pen. Code, 1202.45) on Defendant and Bell. Court modify the judgments against them accordingly. Otherwise, Court find no prejudicial error. Hence, Court affirm the judgments as modified.

A jury convicted defendant of three counts and acquitted defendant of two counts of lewd and lascivious acts with a minor under 14 years of age. (Pen. Code, 288, subd. (a).) Count 1 involved an alleged offense in March 2001. Counts 2 through 5 involved alleged offenses in December 2001. The court sentenced defendant to the midterm of six years on count 1 and concurrent midterm sentences on counts 2 and 3.
At trial, the defendant relied on two somewhat inconsistent theories: first, that the victim, Jane Doe, had imagined being molested as part of a sleep disorder; and, second, that Jane Does mother, Carla C., encouraged her daughter to make molestation allegations as revenge for defendant breaking up with her.
On appeal, defendant raises multiple claims of error, including prosecutorial misconduct; deprivation of the Fifth Amendment right against self incrimination and the Sixth Amendment right to counsel and confrontation; violations of due process; error concerning expert testimony; judicial misconduct; insufficiency of evidence; and sentencing error. Court reject defendants claims and affirm the judgment.

A jury convicted defendant of burglary (Pen. Code, 459) and grand theft. (Pen. Code, 487, subd. (a).) In bifurcated proceedings, the trial court found him guilty of petty theft (Pen. Code, 666) and with having suffered 6 prior convictions for which he served prison terms. (Pen. Code, 667.5(b).) He was sentenced to prison for 7 years, four months. Court's independent review of the record discloses no other basis for reversal.
The judgment is affirmed.

In 1979, after defendant girlfriend was found shot to death, the People filed a felony complaint charging him with her murder. In 1980, the People learned that defendant was in Texas, where he had been convicted of an unrelated murder and sentenced to 99 years in prison. In 1995, they learned that he was, nevertheless, back in California. In 2005, they learned that he was in prison in California but about to be deported. The police thereupon investigated further and discovered a new witness, the victims adult daughter. At that point some 26 years after the commission of the crime defendant was arrested for the murder.
When the People filed an information charging defendant with murder, he responded with a motion to dismiss, asserting that his California constitutional right to a speedy trial had been violated. The trial court granted the motion.
The People appeal, arguing that there was insufficient evidence that defendant suffered actual prejudice from the delay and that the trial court improperly presumed prejudice from the delay alone. Court disagree. The trial court expressly found actual prejudice, and this finding is supported by substantial evidence. In particular, defendants wife, who, according to police reports, could have testified that defendant was at home at the time of the crime, had died. Hence, Court affirm.

Defendant pleaded guilty to grand theft under Penal Code section 487, subdivision (a). The trial court granted defendant three years of formal probation. On appeal, defendant contends (1) the probation condition requiring him to keep the probation officer informed of whether he owns any pets is invalid; and (2) the probation condition requiring him to submit to and cooperate in field interrogations is overly broad and infringes upon his constitutional rights. Court reject these contentions and affirm the judgment.

In case number FVW13891, defendant pled guilty to two counts of receiving stolen property. (Pen. Code, 496, subd (a).) As part of his plea bargain, he waived his right to appeal. In case number FVW13892, defendant pled guilty to receiving stolen property and unlawfully taking/driving a vehicle. (Veh. Code, 10851, subd. (a).) In case number FVW13893, defendant pled guilty to selling/transporting marijuana. (Health & Saf. Code, 11360, subd. (a).) Defendant was granted probation, as agreed to in his plea bargains. Although defendant timely filed a notice of appeal in all three cases, the notice did not reach the appellate section of Superior Court until October, 2006, long after defendant had completed his probation. The trial court then granted defendants request for a certificate of probable cause, which had been authored in 1998, based on facts that existed at that time. A month later, the same trial court vacated defendants guilty pleas in all three cases, entered not guilty pleas, and dismissed all three cases pursuant to Penal Code section 1203.4.
Court have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.

In October 2005, minor, represented by counsel, admitted to threatening a public officer (Pen. Code, 71); in return, the remaining charge of disturbing the peace on school campus ( 415.5, subd. (a)) was dismissed, and minors counsel stipulated the probation officer may consider all allegations for purpose of disposition and restitution. Subsequently, minor was declared a ward of the court and placed on probation in the custody of his mother on various terms and conditions of probation. The court found the maximum term of physical confinement to be three years and imposed a $100 restitution fine.
Court have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.

Father and Mother appeal from the juvenile courts order terminating their parental rights as to 9 year old A.H., 6 year old M.S.H., and 3 year old M.H. On appeal, the parents contend (1) the juvenile court prejudicially erred in denying their request for a continuance of the contested Welfare and Institutions Code section 366.26 hearing; and (2) there was substantial evidence to support the beneficial relationship exception to the termination of parental rights pursuant to section 366.26, subdivision (c)(1)(A). Court reject these contentions and affirm the judgment.

Defendant pled guilty to possessing cocaine for sale (Health & Saf. Code, 11351), during which he was armed with a firearm. (Pen. Code, 12022, subd. (c).) He was sentenced to five years in prison. There is no certificate of probable cause in the record before this court. Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a 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.
Court offered the defendant an opportunity to file a personal supplemental brief, which he has not done. Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

On October 12, 2006, defendant, represented by counsel, pleaded guilty to two counts of committing a conspiracy to use a burning device for safecracking (Pen. Code, 182/464) (counts 1 & 10) and admitted that he had committed the crime for the benefit of, at the direction of, and in association with a criminal street gang ( 186.22, subd. (b)(1)(A)). Defendant also pleaded guilty to committing the crime of receiving stolen property ( 496, subd. (a)) (count 5). In exchange, the remaining allegations were dismissed, and defendant was promised a stipulated total prison term of seven years in state prison. Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

C.M. appeals from an order terminating parental rights to three of her sons. Her sole appellate contention is that the juvenile court erred by finding that the so called beneficial parental relationship exception to termination (Welf. & Inst. Code, 366.26, subd. (c)(1)(A)) did not apply. As we find ample support for the juvenile courts finding, Court affirm.

Defendant is serving a three-year prison sentence after pleading no contest to committing a lewd act upon a child (Pen. Code, 288, subd. (a)), and later petitioning unsuccessfully to withdraw the plea.
Upon defendants request, this court appointed counsel to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court undertake a review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, and he has not done so. Court have now concluded our independent review of the record and find no arguable issues.
The judgment and sentence are affirmed.