CA Unpub Decisions

Cassandra P., the mother of M.N. (M.), appeals the judgment terminating her parental rights under Welfare and Institutions Code[1]section 366.26. Cassandra contends the juvenile court erred by denying a hearing on her section 388 petition and by terminating her parental rights without first making a finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) did not apply. Cassandra also contends the court erred by not applying the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)). Affirmed in part; dismissed in part.

A jury convicted Douglass L. Crenshaw of first degree murder committed during the commission of a robbery and burglary and by using a deadly weapon. The court sentenced him to prison for life without the possibility of parole. Crenshaw petitions for a writ of habeas corpus contending the sentencing court improperly imposed a parole revocation restitution fine under Penal Code section 1202.45[1]("In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount . . . .").
The judgment is modified to strike the restitution fine under section 1202.45. The superior court is directed to prepare an amended abstract of judgment reflecting the modification and forward it to the Department of Corrections and Rehabilitation.

A jury found defendant and appellant, Louis Medel Delgado (hereafter defendant), guilty of committing a lewd and lascivious act on A.D., in violation of Penal Code section 288, subdivision (a) (count 1),[1]three counts of committing a lewd and lascivious act on Y.B. by force or fear, in violation of section 288, subdivision (b)(1) (counts 3, 4, and 7), one count of committing a lewd and lascivious act on Y.B., a child under the age of 16, in violation of section 288, subdivision (c)(1) (count 5), and four counts of committing a lewd and lascivious act on J.B. in violation of section 288, subdivision (a) (counts 6, 8, 9, and 10).[2] The jury also made true findings on allegations that the charges in which A.D. and Y.B. were the alleged victims (counts 1 through 5, and count 7) were filed within the time specified in former section 803, subdivision (g) (hereafter section 803(g)),[3]i.e., after the statute of limitations had run on the crimes but within one year after each victim reported the crimes to law enforcement. In addition, the jury found true an allegation under section 667.61, subdivision (e)(5), that defendant committed the alleged crimes against more than one victim.
Based on the jurys verdicts and true findings, the trial court sentenced defendant to serve a determinate term of 20 years in state prison followed by five consecutive indeterminate terms of 15 years to life.
Defendant raises various claims of error in this appeal, directed at challenging the jurys guilty verdicts and the trial courts sentence. Court recount the details of defendants claims below in our discussion. Court conclude, for reasons we now explain, that the trial court committed several errors in sentencing defendant. Therefore, Court vacate defendants sentence and remand this matter to the trial court for resentencing.

Defendant Juan Manuel Rodriguez was sentenced on the same day, in two unrelated, unconsolidated cases, to a total of 10 years 8 months in prison. This appeal relates exclusively to a single count of simple possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). Accordingly, not discuss the other charges.
Court agree that the trial court should have admitted the evidence that defendants passenger had pleaded guilty to possession of the methamphetamine. Court conclude, however, that the error was harmless, because (1) the trial court did admit evidence of the passengers statements to the police, and (2) the evidence that defendant actually was the person who threw the methamphetamine out of the window was quite strong.

Defendant Martel Antwone Sutton broke into Jane Does home (the victim) and hit her repeatedly with a frying pan when she discovered him in her home in the middle of the night. Defendant then robbed and raped the victim in her home. When done raping the victim, defendant noticed a shed in the victims backyard, locked her in the shed, and drove off in the victims car. Defendant appeals from judgment entered following jury convictions for first degree burglary (count 1; Pen. Code, 459)[1]; assault with a deadly weapon (count 2; 245, subd. (a)(1)); forcible oral copulation (count 3; 288A, subd. (c)(2)); forcible rape (count 4; 261, subd. (a)(2)); false imprisonment (count 6; 236); kidnapping (count 7; 207, subd. (a)); robbery (count 8; 211); and unlawful taking of a vehicle (count 9; Veh. Code, 10851, subd. (a)). The jury acquitted defendant of count 5, attempted forcible sodomy ( 286, subd. (c)(2), 664). As to counts 1, 2, 3, 4, 6, 8, and 9, the jury found true that defendant used a deadly weapon (i.e., a frying pan) and found true as to all convicted offenses that defendant personally inflicted great bodily injury (GBI). ( 12022, subd. (b)(1), 12022.7, subd. (a), and 12022.8.) The court sentenced defendant to an aggregate indeterminate prison term of 22 years 4 months plus a consecutive term of 25 years to life. Court agree, as do the People, that the trial court erred in imposing the weapon use enhancement as to count 2 (assault with a deadly weapon) and the GBI enhancement as to count 4 (rape), and accordingly, direct the trial court to strike these enhancements. The trial court also erred in imposing upper terms on counts 1, 3 and 7, based on factors requiring a jury trial under Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856] (Cunningham). Defendants sentence is thus reversed and the matter is remanded for resentencing as to counts 1, 3 and 7. In all other regards, Court reject defendants contentions and affirm the judgment.

A jury found defendant and appellant Calvin Eugene Gunner guilty of assault with force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1), count 1), dissuading a witness ( 136.1, subd. (c)(1), counts 4 & 11), inflicting corporal injury upon a spouse ( 273.5, subd. (a), counts 7 & 9), and false imprisonment ( 236, count 13). Defendant admitted the allegations that he committed three of the offenses while released from custody prior to the judgment becoming final on a primary offense. ( 12022.1.) Defendant also admitted that he had two prison priors ( 667.5, subd. (b)), a prior serious felony offense ( 667, subd. (a)), and a prior strike conviction ( 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1)). The trial court sentenced defendant to a total term of 17 years 8 months.
On appeal, defendant contends: 1) there was insufficient evidence to support his conviction of assault with force likely to cause great bodily injury; 2) the minute order and abstract of judgment incorrectly show that the court imposed two-year terms on counts 11 and 13, pursuant to section 12022.1, and that the court imposed a five-year sentence enhancement under section 667.5, subdivision (b), rather than section 667.5, subdivision (a). The People concede that the minute order and abstract of judgment should be corrected. Otherwise, the judgment is affirmed.

Defendant appeals from an order denying his petition for writ of error coram nobis. In 1993, he pled guilty to first degree murder (Pen. Code, 187, subd. (a)) and admitted he personally used a firearm during the commission of the crime. He was sentenced to prison for 25 years to life for the murder conviction plus three years for the firearm enhancement. Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the order entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.). The order is affirmed.

Defendants robbed a Rite Aid Store. Juries convicted them of multiple counts of robbery ( Pen. Code, 211; unspecified section references that follow are to the Penal Code), assault with a deadly weapon ( 245, subd. (a)(2)), and false imprisonment ( 236), and found true charged firearm enhancements. ( 12022, subd. (a)(1), 12022.5, subd. (a); 12022.53, subd. (b).) The trial court sentenced defendant Martinez to an aggregate prison term of 20 years, and defendant Hernandez to an aggregate term of 24 years 4 months.
On appeal, defendant asserts that (1) insufficient evidence supports the jurys findings under sections 12022.5 and 12022.53 that he personally used a firearm in the commission of the offenses, (2) the court erred in permitting the prosecutor to amend the information at the close of trial to add allegations under section 12022, subdivision (a)(1), and (3) the court miscalculated the crime prevention fine.
Defendant joins in his co defendants claims and also asserts that (1) the court erred in denying his Batson-Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), (2) the court erred in ordering restitution fines, and (3) the abstract of judgment does not reflect the restitution/parole revocation fines actually ordered by the court. Defendant Martinez joins in these claims.
Court find merit only in defendant Martinezs claim relating to the crime prevention fine, and in defendant Hernandezs claim alleging error in the abstract of judgment. Court modify the judgment accordingly and, in all other respects, affirm.

Following a contested jurisdictional hearing, the juvenile court sustained a charge against Nicholas L., a minor, of brandishing a deadly weapon (Pen. Code, 417, subd. (a)(1)). The minor was declared a ward of the court and placed on home probation.
On appeal, the minor contends (1) the evidence is insufficient to support the sustaining of the brandishing charge, and (2) reversal is required because the juvenile court precluded him from presenting evidence of self defense. Court reject both claims.

A modification decision.

This appeal involves claims of collateral estoppel. After two individuals were shot and killed in their home, an information charged defendant Joel Angel Magana and a codefendant, Christopher Jones, with murder, robbery, burglary and conspiracy to commit these crimes. (Pen. Code, 182, 187, 211, 459; unspecified statutory references that follow are to the Penal Code.) In a first trial, the jury acquitted defendant of murder and robbery, but could not reach a verdict on the charges of burglary and conspiracy. (The jury hung on the conspiracy charge as to codefendant Jones as well, but convicted him on all other counts.)
Defendant was retried on the two unresolved charges of burglary and conspiracy to commit murder, robbery and burglary. The jury convicted defendant of both offenses and found the charged firearm enhancements to be true. ( 12022.53, subd. (d), 12022.5, 12022.7.) The trial court sentenced defendant to an aggregate prison term of 75 years to life.
On appeal, defendant contends that the earlier acquittals on the murder and robbery charges precluded the introduction in the second trial of any evidence that defendant perpetrated the murder or robbery, or aided and abetted their commission. In a similar vein, he argues that principles of double jeopardy preclude the sentence enhancements for firearm discharge under section 12022.53. Court disagree and affirm the judgment.

Defendant appeals following convictions of one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), battery on a person with whom the defendant had a dating relationship (Pen. Code, 243, subd. (e)), driving under the influence of alcohol (Veh. Code, 23152, subd. (a)), and driving with a blood alcohol content of 0.08 percent or greater (Veh. Code, 23152, subd. (b)). The court suspended imposition of sentence and placed defendant on probation. On appeal, defendant raises claims of evidentiary, instructional and sentencing error with respect to his misdemeanor convictions. Since none of the contentions is meritorious. Court affirm the judgment.

A jury convicted defendant Anthony Fletcher of first degree murder (Pen. Code, 187, 189) and sustained an allegation he personally used a firearm in the murder (Pen. Code, 12022.53, subd. (c)). The trial court sentenced defendant to 25 years to life for the murder and a consecutive 20-year term for the firearm enhancement.
On appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 by admitting recordings of calls made by defendant from jail. Court affirm.

Defendant appeals from the judgment after a jury found him guilty as charged of second-degree robbery (Pen. Code, 211)[1]and first-degree burglary. ( 459)[2] The trial court found true the allegations that he suffered seven prior serious or violent felony convictions ( 667, subd. (b)-(i) and 1170.12)[3]and sentenced him to an aggregate prison term of 50 years to life plus a 20 year determinate term of imprisonment.
On appeal, he contends the trial court erred by denying his motion under Batson/Wheeler[4]and his motion to exclude eye witness identification testimony. He also claims there is insufficient evidence of force or fear to sustain the robbery conviction.
Court find no error and affirm the judgment.