CA Unpub Decisions

After the trial court granted Scott J. McGonagle's motion to withdraw a guilty plea and the People reinstated the information, McGonagle entered a guilty plea to residential burglary (Pen. Code, 459/460) and admitted a prior strike ( 667, subds. (b)-(i), 1170.12, 668) and prior serious felony conviction ( 667, subd. (a)(1)). In the plea agreement, McGonagle waived his right to appeal a stipulated sentence. The court sentenced him to a stipulated nine years in prison: double the two year lower term for residential burglary with a prior strike, enhanced five years for the prior serious felony conviction. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b). The judgment is affirmed.

On October 5, 2004, Robert O'Connor entered a negotiated guilty plea to oral copulation with a minor under 18 years of age. (Pen. Code, 288a, subd. (b)(1).) O'Connor waived his right to a jury trial on sentencing issues. (See Blakely v. Washington (2004) 542 U.S. 296.) The court sentenced him to prison for the two year middle term and ordered him to register as a sex offender. ( 290, subd. (a)(1)(A).) O'Connor appealed and Court dismissed the appeal because he had not filed a certificate of probable cause. The Supreme Court granted review and transferred the case to this court for reconsideration in light of People v. Hofsheier (2006) 37 Cal.4th 1185 (it is a denial of equal protection for a court not to exercise discretion whether to order a defendant in O'Connor's position to register as a sex offender). After the case was transferred to this court, Court considered O'Connor's opening brief on appeal as a petition for a writ of habeas corpus and issued the writ, remanded it, and ordered the trial court to exercise its discretion to determine whether to order O'Connor to register as a sex offender. (In re Robert Lewis O'Connor (July 12, 2006, D048887) [nonpub. opn.].) On remand, the trial court reviewed the entire file, including a renewed probation report, and found O'Connor committed the crime because of sexual compulsion and for the purpose of O'Connor's sexual gratification and that he was a danger to society - particularly to minors. The court ordered O'Connor to register as a sex offender.
The judgment is affirmed.

Jennifer S. appeals an order of the juvenile court made at a six month review hearing involving her dependent daughter Ariel W. Jennifer contends the court abused its discretion by denying her request for increased visitation with Ariel. Court affirm the order.

Defendant was drugged, bound, and garroted; his dead body was then thrown in the swimming pool in his backyard. The evidence, although circumstantial, indicated that his wife, defendant, either killed him or had him killed so that she could obtain the proceeds of his life insurance (and possibly also because she was having an affair).
A jury found defendant guilty of first degree murder (Pen. Code, 187, subd. (a), 189), with a financial gain special circumstance (Pen. Code, 190.2, subd. (a)(1)). She was sentenced to life in prison without the possibility of parole. She appeals, contending the trial court erred by:
1. Improperly excluding evidence in reliance on the principles concerning evidence of third party culpability stated in People v. Hall (1986) 41 Cal.3d 826 (Hall).
2. Admitting evidence of prior bad acts.
3. Imposing a parole revocation restitution fine.
The People concede that the parole revocation restitution fine was erroneous. Court agree. Court modify the judgment accordingly. Otherwise, for the reasons stated below, Court reject defendants contentions, and Court affirm.

Defendant appeals his convictions for (1) conspiring to manufacture methamphetamine and conspiring to possess pseudoephedrine with the intent to manufacture methamphetamine (Pen. Code, 182, subd. (a)(1)); (2) manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)); (3) possession of pseudoephedrine with the intent to manufacture methamphetamine (Health & Saf. Code, 11383, subd. (c)(1)); and (4) possession of chemicals to manufacture hydriodic acid or a reducing agent with the intent to manufacture methamphetamine (Health & Saf. Code, 11383, subd. (g)). The trial court sentenced him to an aggravated term of seven years for manufacturing methamphetamine. The terms on the remaining counts were either stayed pursuant to section 654 (counts 1 and 3) or imposed concurrently (count 4). A jury also convicted his two codefendants, Pedro Martinez Hernandez and Genero Castro Diaz, but their cases are not before us.
Rodriguez argues the judgment must be reversed because (1) there was not substantial evidence that he intended to manufacture methamphetamine; (2) the trial court erred in admitting evidence about his limited involvement in the cleanup of debris from a methamphetamine manufacturing site two years before his arrest; and (3) the trial court erroneously instructed the jury on the use of this evidence. Court reject each of these arguments.
Court agree with him that the trial court erred in imposing an aggravated term and in failing to stay the sentence for possession of chemicals to manufacture hydriodic acid. ( 654.) Therefore, Court affirm the conviction but remand for resentencing.

A jury convicted defendant of one count of receiving stolen property. The trial court sentenced defendant to the upper term of three years, plus one year for a prior prison term enhancement. On appeal, defendant contends the court erred in imposing the upper term sentence. Court affirm.

Appellant, Gene Marion Daniels, was convicted after a jury trial of continuous sexual abuse of a child under age 14 (Pen. Code, 288.5, count five). Appellant was acquitted of two counts of committing lewd or lascivious acts on a child under age 14 ( 288, subd. (a)) and two counts of oral copulation of a child under age 14 (288a, subd. (c)(1)). In a bifurcated proceeding, appellant admitted a prior prison enhancement ( 667.5, subd. (b)).
The trial court sentenced appellant to the midterm of 12 years for continuous sexual abuse, plus a consecutive term of one year for the prison term enhancement for a total prison term of 13 years. The court awarded custody credits and imposed a restitution fine.
On appeal, appellant contends the trial court erred in instructing the jury with CALCRIM No. 226 because the instruction undermined his credibility and improperly shifted the focus of the jury from testing the prosecutions evidence to testing appellants veracity. Court find no error and affirm the judgment.

A jury convicted defendant Lo Kuan Saechao of attempted sexual battery (Pen. Code, 243.4, subd. (a); count 1), corporal injury to a spouse or cohabitant ( 273.5, subd. (a); count 2), unlawful taking or driving a vehicle (Veh. Code, 10851, subd. (a); count 3), and false imprisonment ( 236; count 4). In a bifurcated proceeding, the court found true the enhancement allegation in each count that defendant suffered a prior juvenile adjudication for a serious or violent felony (i.e., robbery) on April 3, 1993. Subsequently, the court granted defendants motion to strike the prior adjudication, and sentenced defendant to a total prison term of five years two months as follows: the upper term of four years on count 2, plus six months on count 1 (one-third the middle term), and eight months on count 3. Defendants sentence on count 4 was stayed under section 654.
On appeal, defendant contends: (1) the trial court erred by admitting evidence of prior acts of domestic violence under Evidence Code section 1109 because the statute is unconstitutional; and (2) the trial court erred by imposing the upper term based on facts not found by a jury. Court affirm.

Appellant, Mireya Maldonado, appeals from a judgment finding her liable for damages from a motor vehicle accident. Although appellant had sold the car involved to her brother and he had sold it to a third party, she remained the owner of record because neither transaction was recorded with the Department of Motor Vehicles. Appellant contends the trial court erroneously found her liable under Vehicle Code section 17150 because there was no evidence she extended permission to the culpable driver to operate the car. Court disagree and affirm.

Appellant Doris A.s four children were removed from her custody and placed in foster care. She challenges the jurisdictional findings made pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g), and contends the notice given pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was inadequate. Court affirm.

Jose Parra was walking home from a taco shop late one night when Bukhari ducked out from behind a dumpster with a gun. Approaching Parra from the front and side, Bukhari told him to wisen up and grabbed him by the neck. Then he reached into Parras pocket and took $400. After that, he hit Parra in the head with the butt of the gun and pushed him to the ground. Even so, Parra was able to get the license number of Bukharis car as Bukhari drove away. Parra also noticed Bukhari spoke with a Middle Eastern accent and looked Arabic or something like that.
That night, the police showed Parra a six person photo lineup. Although one of the photos was of Bukhari, Parra failed to identify anyone in the lineup. Eleven days later, the police showed Parra more photos. This time, they included a more recent photo of Bukhari and showed Parra the photos one at a time. On the third photo that of Bukhari Parra exclaimed, Thats him. Thats the guy that robbed me. Parra also identified Bukhari at trial.
When the police arrested Bukhari, they noticed he had a Middle Eastern accent. He was also determined to be the registered owner of the car used in the robbery. At trial, his wife testified she had the car at work on the night in question, but she failed to provide any documentary evidence to prove she worked that evening. The judgment is affirmed.

Appellant pleaded no contest to one count of receiving stolen property. (Pen. Code, 496.) He was placed on probation and ordered to pay direct restitution in the amount of $863.21. He was also ordered to pay probation supervision costs not to exceed $64 per month. He contends that the trial court abused its discretion in setting the amount of restitution and that the court erred in ordering payment of probation costs as a condition of probation. Court agree.

After entering into a negotiated plea agreement, defendant Eric Jason Bernard pleaded guilty to 12 felony counts, including four counts of robbery (Pen. Code, 211, 212.5, subd. (c), two counts of false imprisonment ( 236, 237), two counts of carjacking ( 215), one count of attempted carjacking ( 664, 215), one count of kidnapping ( 207, subd. (a)), and two counts of assault on a peace officer ( 245, subd. (d)(1)). Defendant also admitted a firearm enhancement for each count. The trial court imposed an aggregate sentence of 39 years, 10 months.
On appeal, defendant makes two claims of sentencing error. First, he contends that the imposition of consecutive sentences on the basis of aggravating factors not found by a jury violates his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). Second, defendant asserts that the trial courts failure to state the reasons for the consecutive sentence imposed on count 1 (robbery; 211, 212.5, subd. (c)) requires reversal. For reasons that Court explain, we find no merit in either of defendants claims of sentencing error and therefore Court affirm the judgment.

Appellant appeals from an order of the juvenile court terminating her parental rights to her daughter Pauline H. (born 2004) and selecting adoption as the permanent plan. (Welf. & Inst. Code, 366.26.) She principally challenges the evidence supporting the juvenile courts finding that Pauline likely would be adopted and rejection of her evidence and argument that the case came with the exceptions to termination described by section 366.26, subdivisions (c)(1)(A) (no termination if termination would be detrimental to the child because the parents maintained regular visitation and the child could benefit from continuing the relationship), and (c)(1)(E) (no termination if there would be substantial interference with a sibling relationship). Court affirm the order.